Brentin Mock is a staff writer at CityLab. He was previously the justice editor at Grist.
Supporters of the Department of Justice’s efforts to address discriminatory practices in urban policing may be watching the end of an era as prospective Attorney General Jeff Sessions prepares for his confirmation hearing.
The U.S. Justice Department is perhaps best known for its vigorous work in protecting the civil and voting rights of racial minorities over the past eight years. What’s been overlooked, though, is how the department also ramped up its activities around protecting women, particularly from sexual harassment and violence in housing and policing matters.
For example, when evidence arose of public housing authority officers sexually violating women tenants in Baltimore and Kansas City, the Justice Department intervened and put consent decrees in place to put it to an end. In December 2015, the Justice Department released first-ever guidelines on how to avoid gender-bias policing to address the increasing problem of police violence against women, both civilians and within police departments. The Justice Department also checked police departments in New Orleans and Puerto Rico with consent decrees to stop the harassment and discrimination against women in hiring and promotions.
But gender-based violence and consent decrees seem to be of little concern for Sen. Jeff Sessions, Donald Trump’s pick for attorney general. When news broke of Trump once boasting about groping women’s genitals, Sessions told The Weekly Standard that he would “not characterize that as sexual assault.” Perhaps it’s unsurprising then that Sessions voted against the 2013 reauthorization of the Violence Against Women Act—a law that as attorney general he would be responsible for enforcing.
Sessions holds similarly dubious views about federal consent decrees, the instruments used to hold police departments accountable when embroiled in unconstitutional law enforcement practices. He once described them in a 2008 paper from the Alabama Policy Institute as a “dangerous” exercise that are an “end run around the democratic process.” Consent decrees are in fact agreements produced between multiple law enforcement stakeholders—police chiefs and lieutenants, prosecutors, and even police union leaders—that take months, sometimes years to negotiate.
Presumably, Sessions understands this, as he claimed to have been involved in one on his Senate confirmation questionnaire—or what little of it he actually filled out. In response to the form’s request to “describe the ten most significant litigated matters” that he “personally handled,” he listed a case concerning a desegregation consent decree supported by the NAACP Legal Defense and Educational Fund:
But this might have just been window dressing. Civil rights lawyers involved in that case say Sessions was nowhere to be found for that or any other civil rights cases as Alabama’s attorney general.
“Neither any LDF lawyer nor any lawyer listed from the Civil Rights Division of the Department of Justice has any recollection of Jeff Sessions being personally involved in this case—and considering who he was, they would remember,” NAACP LDF president Sherrilyn Ifill tells CityLab. “As the U.S. Attorney for the relevant district, Sessions was listed on the papers ex officio, as was the practice at that time. The questionnaire asked Sessions for significant cases in which he was personally involved. He did not personally litigate the Davis case.“
Whether his misunderstandings on consent decrees and civil rights are due to a benign ignorance or willful malice, if he held these views as U.S. Attorney General, it would spell disaster for cities. Consent decrees are residents’ best line of defense when recalcitrant police forces become a problem too big for city or state government to handle. Meanwhile, women and minorities rely upon federal civil rights and anti-discrimination laws for protection when violated by local police or government officials. What happens when the chief enforcer of those laws is cloudy about what they mean, or if they are even needed?
Consider that the police officers who were involved in the deaths of Michael Brown in Ferguson and Freddie Gray in Baltimore have all been absolved by their respective local criminal justice systems. In both police departments, it was the Justice Department that investigated and found widespread patterns of discriminatory activity.
For Baltimore, much was made about the massive levels of racial discrimination found in the police department—much of which Justice Department investigators said was intentional. Somewhat less attention was paid to the Justice officials finding of “indications that officers fail to meaningfully investigate reports of sexual assault.” Similarly, for the Ferguson police department investigation, Justice investigators “found evidence that the Ferguson Police Department tolerates sexual harassment by male officers, and has responded poorly to allegations of sexual harassment that have been made by female officers.”
A primary line of inquiry for Sessions at his confirmation hearing should be whether his Justice Department will continue to investigate police bias and violence against women and racial minorities. He should also be asked whether he will continue the consent decree legacy of reining in such violations when patterns are found. The Justice Department currently is involved in 18 consent decree arrangements with police departments and cities of all sizes, as seen below. It has five other pending investigations and one in active litigation.
Among the higher-profile Justice investigations that remain open are the Eric Garner case in New York City and the Chicago police department. Last May, the Justice Department charged former North Charleston Police Officer Michael Slager for fatally shooting Walter Scott, an unarmed African American, in the back as he fled. Meanwhile, the Justice Department has charged more than 580 law enforcement officials with civil rights-related crimes over the last eight years, according to a recent report. By comparison, it brought 327 cases against police for misconduct in the 8 years prior to that, under President George W. Bush.
The question for Sessions is whether he will continue or blunt the momentum behind police accountability. The criminal justice legacy at stake for his confirmation hearing is not just President Obama’s. The progress made on this front was largely bipartisan, during a time when bipartisan enterprise was virtually non-existent. The mutual agreement between the political parties that court sentencing and imprisonment rates were way out of control has led to the incarceration rate dropping to its lowest point in 20 years.
Of course, 20 years ago, the conservative position on incarceration was that it was good for business. In 1994, the GOP included in the infamous omnibus Violent Crime Control and Law Enforcement Act billions of dollars for local police departments and the construction of new jails and prisons, which achieved its goal. It’s entirely possible Sessions may want to steer us back into the mass incarceration era—and perhaps into something even more draconian.
In 1995, his state of Alabama was the sole remaining state in the nation that allowed “chain gangs” in prisons. While most courts found this practice a cruel and unconstitutional punishment, Sessions, who was Alabama’s attorney general at the time, said it was “perfectly proper,” as recalled in Allen Tullos’ book Alabama Getaway: The Political Imaginary and the Heart of Dixie.
Since becoming a U.S. senator, Sessions did vote for the Fair Sentencing Act of 2010, which reduced the sentencing disparities between crack and cocaine violations. But that’s as good as it gets. According to the Brennan Center for Justice, Sessions “has emerged as one of the fiercest opponents of federal sentencing reform” and has consistently voted against bipartisan reform legislation over the past two years. Reads the Brennan report:
At a November 2015 hearing on the bill, Sen. Sessions rejected the idea of reform outright, saying that when “mandatory minimums are either eliminated or reduced substantially, it reduces the ability of law [enforcement] officers to negotiate and protect the public.” He also claimed that “we’ve exaggerated the number of people who are serving long sentences for minor offenses.”
Indeed, the support behind the criminal justice reform effort might have already ended. While the head of the International Association of Chiefs of Police just months ago apologized for the historical racism of law enforcement, on December 29 it filed a letter in support of Sessions’ nomination for Attorney General. The picture of who actually supports criminal justice reform and who prefers a return to reckless policing will become clearer in the lead up to Sessions’ confirmation hearing.
“There is only one real question before the Committee, the Senate, and the American people,” said Ifill on a press call regarding the upcoming hearing. “Does the nearly 40-year record of Senator Sessions in public life demonstrate that he is fit and prepared to be the nation’s chief law enforcement officer, and particularly the chief enforcer of our nation’s civil rights laws? No matter how the hearing process is rigged, the rules are bent, or history is rewritten by Senator Sessions’ supporters, his long and voluminous record demonstrates that the answer to that question is no.”