The Attorney General is trying to erase Obama-era police reform. Can he do that?
On January 31, the organization Baltimoreans United in Leadership Development (BUILD) sent a letter to federal Judge James K. Bredar, who is presiding over the consent decree between the U.S. Department of Justice and the Baltimore police department. In the letter, BUILD’s co-chair, Rev. Andrew Foster Connors, asked that the consent decree should be executed swiftly, so as not to further erode the fragile trust between the city’s communities and the police. Wrote Connors:
In any normal time, a delay in executing the consent decree may be judicious—and even preferable. But this is not a normal time. While we cannot know with certainty what the new Administration will do regarding the consent decree, there is a substantial chance it may be somehow delayed. If that happens, the oversight and assistance promised by the federal government will disappear. Baltimore will lose its greatest chance at improving community relations with law enforcement, and the potential for increased community distrust of law enforcement will only grow.
The pastor was prescient. On April 3, Attorney General Jeff Sessions filed a request with Judge Bredar asking for a three-month delay on a hearing for the consent decree scheduled for Thursday, April 6. This is the hearing where the public will get to share their thoughts and concerns about the agreement between the city and the Justice Department. It’s also the hearing where the judge will determine whether that agreement is “fair, adequate, and reasonable, and is not illegal, the product of collusion, or against the public interest.”
Up until this week, all parties—Baltimore, the police department, and the Justice Department—were on the same page that the agreement was fair. But along with Sessions’s court filing came a memo saying that not only did he want to review the pending Baltimore consent decree, but that he was in the process of reviewing all consent decrees across the U.S.—“including . . . existing or contemplated consent decrees.” Translation: If your city is even thinking about creating a police reform agreement, Sessions wants to look at it.
This was a surprise attack on Baltimore. Neither the city’s mayor nor its police chief invited this delay. Like Connor, they want the consent decree executed sooner. But Sessions wants to go through the 227-page agreement to make sure it squares with the Trump administration’s priorities around reducing violent crime. Many interpret this move as an attempt to weaken if not eliminate the consent decree, which is a tool for police reform that Sessions isn’t a fan of. David Rocah, senior staff attorney at the ACLU of Maryland, says that DOJ expressed no problems with the consent decree during a February hearing before the judge; he calls Sessions’s reopening of these agreements “literally unprecedented in our nation’s history.”
It’s important to note, though, what Sessions is actually capable of doing here. Existing consent decrees, such as the one in Ferguson, are implemented under the order of a court. Nothing in these police reform agreements can be undone without a judge’s permission. The Baltimore consent decree isn’t quite at the stage of court-ordered enforcement, but Sessions still needs Judge Bredar’s approval before he can do any tinkering.
“If Sessions were to try to withdraw or renegotiate a consent decree, I think those would be drastic, unprecedented steps,” says Chiraag Bains, a former senior assistant attorney general who helped supervise the Justice Department’s unit that investigated police misconduct. “But he can’t do that unilaterally. He would have to go to court to have the court order altered. Under the legal standard that governs the modification of a court order, the Justice Department would have to explain why they want to modify it and how, and the other parties would have a say in it. Since it’s the judge’s order that the department would be asking to modify, the judge would scrutinize whatever request is being made of the court.”
What could Sessions do if he doesn’t agree with the terms of the current Baltimore agreement but is unable to modify it? He could interfere in other ways. For example, a consent decree needs a strong consent decree monitor to ensure that the police department is doing all of the things on the checklist to keep it flying straight. A monitor has not been assigned to Baltimore yet; each party will have the opportunity to push for the monitor of their choosing. Sessions could nominate one who will not aggressively examine the police department’s compliance.
“There is ample reason to worry about whether the Justice Department will be pushing for a monitor who will truly do their job and hold the parties accountable for the agreement that they have made,” says Rocah. It’s ultimately up to the judge which party’s nominated monitor will be installed.
But what’s also troubling is that Sessions is reviewing all the other consent decrees that are in place or will be in place, from Ferguson to Chicago and beyond. In a memo Sessions drafted that was released to the public this week, he stated, “It is not the responsibility of the federal government to manage non-federal law enforcement agencies,” which is his interpretation of what a consent decree represents.
But Section 14141 of the federal law authorizes the Justice Department to investigate a police department for patterns and practices of misconduct when such evidence arises. It was under this law that the Justice Department investigated the Baltimore Police Department after its officers were involved in killing Freddie Gray. That investigation found substantial illegal police activities targeting Baltimore’s black citizens. The consent decree is one of the tools made available to give the Justice Department oversight of a police department when these kinds of findings are made.
“At root what this reflects is Sessions and Trump’s ideological opposition not just to consent decrees, but to the whole project of reforming policing in this country and holding police to constitutional norms in ways that are public and accountable,” says Rocah. “What they are doing is wrong and nothing but the triumph of politics and ideology over facts and law.”