The Trump administration is pursuing far fewer civil rights cases — including hate crimes, police bias, and disability rights cases — than the Obama or Bush administration did, an exclusive VICE News analysis of Department of Justice data shows.
The DOJ’s Civil Rights Division — which has enforced nearly every pivotal moment of rights reform since its creation in 1957 — has started 60 percent fewer cases against potential violations during the first two years of the Trump administration than during the Obama years and 50 percent fewer than under George W. Bush.
The decreased caseload marks a dramatic change in approach for the primary DOJ division devoted to investigating accusations of racial, ethnic, and other forms of bias. Trump and his first attorney general, Jeff Sessions, have been clear about their opposition to some of the division’s work, including investigations of police departments and the enforcement of disabled people’s rights, two areas where the division’s work has slowed to a near standstill.
The Civil Rights Division has been crucial in historic efforts to protect Americans’ rights. In the wake of the 1954 Brown v. Board of Education decision, the division began the process of desegregating schools across the nation. After the 1991 beating of Rodney King at the hands of Los Angeles police officers, the same unit investigated the LAPD and later compelled them to adopt significant reforms. More recently, the division charged James Fields with a hate crime for driving his car into a crowd of protestors in Charlottesville and killing Heather Heyer in 2017.
The decrease in the office’s work has come despite reports of the types of bias they’re tasked with investigating staying roughly consistent — and the Justice Department’s own finding that violent hate crimes are on the rise. The Trump administration has emphasized enforcement of these crimes as a focus for the division.
Former division heads say significant staffing cuts to the department over the past two years, poor morale, attrition, and a lack of emphasis on civil rights under the Trump administration are behind the drop-off in cases.
“[Trump] certainly has no inclination for defending the civil rights of individuals. It’s like he left a sign out on the door saying ‘We’re going to lunch,’” said John Dunne, who was appointed head of the Civil Rights Division by President George H.W. Bush and served from 1990-1993.
An enforcement drop-off
VICE News analyzed the public information posted online by five of the division’s eight civil rights sections — Voting, Education, Disability Rights, Housing, and Special Litigation — and confirmed with multiple DOJ sources that the data posted by those sections was complete. Three sections — Criminal, Employment, and Immigrant and Employment Rights — had incomplete data and were left out of the analysis.
Cases are logged when the Civil Rights Division begins a formal investigation of a company, police department, organization, or person suspected of violating civil rights. Many of the cases begin as referrals from other federal agencies, and some are prompted by notable public events, like the Charlottesville killing. The division later announces its findings in a public letter or complaint spelling out the charges and any fixes that must be made.
Under the Trump administration, the division has announced an average of 2.6 complaints per month, compared to an average of 5.9 a month under Bush and Obama.
“[Trump] certainly has no inclination for defending the civil rights of individuals.”
It’s not clear how many active investigations are in progress under the Trump administration, but based on prior documents, at least some should have yielded findings letters within two years. When the Justice Department began an investigation of the Chicago Police Department in December 2015, they announced the results a little over a year later, in January 2017.
The division’s lack of activity is a major reversal from the Obama administration, which expanded staff in order to more aggressively prosecute rights violations.
Justice Department spokesperson Kelly Laco declined to comment on the apparent drop in caseload or provide information on the number of active investigations or new cases. She sent a link to a recent speech by current Attorney General William Barr in which he said, “It is an honor for all of us to continue this work of protecting the civil rights of the American people today,” and expressed gratitude to the Civil Rights Division staff. Sessions said he doesn’t have access to DOJ’s numbers and pointed to the DOJ’s statement. The White House referred questions to the DOJ.
If an entity is found guilty of violations, cases in the division wind down when the Justice Department enters into a settlement agreement, binding consent decree or other judgment — legal documents that force the organization under investigation to rectify its practices.
These binding legal agreements are at an all-time low and 20 percent lower than any previous 12-month total under Bush or Obama. Overall, the Trump administration has filed an average of 5.6 agreements per month, down from 8.8 agreements per month in the two previous administrations.
The Trump administration has emphasized hate-crime enforcement as a focus for the division. They have pursued several high-profile cases, including charging the suspect in the Pittsburgh Tree of Life Synagogue shooting with hate crimes, as well as a man who burned down a mosque in Texas. The division also moved swiftly to charge Fields with 30 separate hate crime–related counts for his attack in Charlottesville. Recent budget proposals have advocated prioritizing those investigations, which are handled by the Criminal section.
But according to an October 2018 press release from the Justice Department, even hate crimes prosecution has fallen by about 20 percent compared to levels during the Obama administration.
“It amounts to ... driving on the wrong side of the road.”
An increase in investigations that are wide in scope — such as investigating a police department — could make up for a decline in the total number of cases. But civil rights experts said that recent cases in several of the division’s sections have targeted smaller organizations or cities with narrower fixes required than under past administrations. Vanita Gupta, a former head of the division in the Obama administration and current president of the Leadership Conference on Civil and Human Rights, said that larger, systemic cases are at a low point.
Read more: Is Trump's war on the DOJ obstruction?
And in a handful of significant cases, the division has reversed position or failed to defend civil rights laws. In January, the Civil Rights Division stopped seeking federal oversight over the drawing of Texas’ electoral maps. The division had previously asked for such oversight after a court found that a map was “an impermissible racial gerrymander” that intentionally blocked people from voting.
While each administration pursues its own enforcement agenda, civil rights experts said a move like this is a remarkable departure from other administrations.
“It amounts to the difference between switching from the left lane to the right lane … and driving on the wrong side of the road,” said Justin Levitt, a former attorney in the division under Obama.
Lawyers said the sea change in the department’s approach will have consequences for civil rights in both the short and long term.
“It means that [people] can’t look to the federal government any more for ensuring that they can fully participate without fear of voter suppression, and that they can’t hold accountable acts of police misconduct and the like,” Gupta said.
The heart of the division and majority of the workforce are career civil rights attorneys and staff. According to federal survey data, almost half of the employees have served in the Justice Department for more than 10 years, through multiple administrations and under political appointees of both parties.
Budget documents show that the Trump administration has cut about 17 percent of the Civil Rights Division’s staff positions, including 14 attorneys. The 2019 budget request seeks a further 4.6 percent reduction in staff. Currently, there are 593 staff and 369 attorneys in the division; in 2016, there were 714 staff and 383 attorneys.
Among the staff that remain, morale has fallen significantly, according to government surveys obtained by Reveal. Staff responses on questions ranging from appraisals of their leaders’ integrity to their overall level of satisfaction with the division hit their lowest point within the eight years of surveys Reveal reported on.
There are other signs of employee unhappiness in the recent cases filed by the division. Career attorneys in the division normally sign legal briefs, but their signatures are absent from several recent filings, like the Texas redistricting case. Levitt described that omission as sticking out like a “sore thumb.”
“I do think the fact that the career attorneys didn’t sign the brief means that the rank and file — the people who hold jobs through Democratic and Republican administrations and just enforce the law — are objecting, strongly,” Levitt said in an email.
One career attorney resigned in protest over being asked not to defend the Affordable Care Act, according to the New York Times.
Neglecting policing and disability rights
Each of the five sections but one (Education) reported fewer new and finished cases, but the decline was more significant in some areas than in others. The section with the largest drop-off in new cases was Special Litigation, which is responsible for enforcing laws against systemic police misconduct, civil rights violations in jails and prisons, and other matters.
According to Christy Lopez, who was the section’s deputy chief under Obama, the unit was hit especially hard by retirements and resignations. “The staff that work on police investigations, my understanding is that they have had a greater-than-20 percent attrition rate,” Lopez said.
Special Litigation took a more active role under the Obama administration, investigating major police departments in cities like Chicago and Baltimore. Former Attorney General Sessions publicly announced his opposition to that work, arguing that consent decrees “can reduce morale of the police officers.” Sessions ordered a review of all existing consent decrees, and pulled out of negotiations to implement one in Chicago. (The Illinois attorney general later signed a consent decree with the cooperation of Chicago’s mayor.)
“Apparently, there either are no police misconduct cases today, or they’re saying to the departments, ‘Just promise not to do this again.’”
Since then, the DOJ has declined to investigate high-profile incidents in other police departments. For example, a ProPublica investigation revealed that the Elkhart, Indiana, police department regularly brutalized suspects, with few or no consequences for officers. The Elkhart City Council asked the Indiana State Police to investigate, but they referred the matter to the DOJ, which has not announced any intention to pursue the case.
There hasn’t been a single new complaint filed by the division against a police department in the two years since Trump’s inauguration. “We spent a fair amount of time on police misconduct cases,” said Dunne. “Apparently, there either are no police misconduct cases today, or they’re saying to the departments, ‘Just promise not to do this again.’”
While Sessions made no secret of his opposition to the Special Litigation section, the second-biggest decline was in Disability Rights. Sessions hadn’t been as vocal on this issue, but he did once say the federal special education law was “too lenient.” Activity in the Disability Rights section has fallen by almost 60 percent since Obama’s two terms. “It’s shocking to me,” said Catherine Lhamon, the chair of the United States Commission on Civil Rights, a bipartisan government agency.
Of the disability rights cases that have been filed, most have remedied violations in individual businesses or facilities, helping patrons of those businesses but not necessarily spurring widespread change. There hasn’t been a single new case under the Olmstead decision, which enables larger-scale remedies for disabled people across entire institutions, cities, or states.
A shift in enforcement tactics
Across the division, most recent cases have ended in settlement agreements instead of consent decrees — not surprising given that Sessions issued a policy memo in November 2018 directing civil rights attorneys to do exactly this.
This is significant because settlement agreements are less enforceable. Consent decrees are monitored by a federal judge and violations of the agreements can be punished quickly with contempt orders. Settlement agreements are only subject to contract law. In order to address violations, the division must file a new lawsuit over the breach of contract. (Some settlement agreements are court-enforceable, but most new agreements under the Trump administration have not been.)
“If they violate [settlement agreements], you have to start all over,” Dunne said.
In part because of the difficulty of remedying violations, many civil rights attorneys believe that consent decrees are more likely to encourage compliance than settlement agreements. “If you really want to ensure that civil rights are vindicated and that change happens, you get a federal judge involved,” Lopez said. “If you don’t have that … everyone knows that enforcement is essentially voluntary.”
Two years into the Trump presidency, it seems unlikely the division’s decline in activity will be reversed under this administration. Filings of concluded cases in the last 12 months have fallen slightly even compared to the first full year of the Trump administration. In total, last year’s case volume has been about 50 percent lower than when Obama was president, while 2017’s was about 40 percent lower.
Because cases often take many years to advance from investigations to complaints to legal agreements, it’s likely that the full impact of the Trump administration's decision to bring fewer civil rights cases won’t be felt for some time. Similarly, staff departures, morale problems and the loss of positions in the division could take years to recover from under a new administration, even one more interested in enforcing civil rights.
Experts warned of dire consequences if the current pace of activity continues. In addition to its ability to remedy violations after the fact, the division’s work discourages organizations from violating civil rights in the future for fear of being investigated. “I think there is a very significant deterrent effect that the Justice Department has when it’s rigorously enforcing these laws,” said Gupta.
Without that deterrence, experts believe civil rights violations might increase. “To see this Department of Justice failing in its obligations sends the unmistakable message to every American that civil rights are now optional,” Lhamon said. “That is a scary reality that brings us as a nation to the lowest point we’ve been in six decades with respect to civil rights.”
Cover: In this Dec. 15, 2017 photo, President Donald Trump sits with Attorney General Jeff Sessions during the FBI National Academy graduation ceremony in Quantico, Va. (AP Photo/Evan Vucci, File)