Consent Decrees Force Changes to Policing. But Do Reforms Last?

As demonstrations over police brutality rocked the country in 2020 after the death of George Floyd, Newark, New Jersey, was held up as a model of police reform, a department so transformed by federal intervention that its officers had not fired a single shot that year.

The department had revamped its disciplinary process, established New Jersey’s first civilian complaint review board and kept the peace during local protests even as police in other cities clashed violently with demonstrators.

Then, just minutes into 2021, the streak of no shots fired was broken. A Newark detective responding to reports of gunfire shot and killed an unarmed Black man.

Amid the swirl of questions and demonstrations surrounding the shooting, there was one thing everyone involved knew: The federal government was watching. Within weeks, the department’s body cameras policy was amended to include them for plainclothes officers like the detective in the shooting.

Oversight of local law enforcement agencies in the form of consent decrees — legally binding, court-enforced agreements — is the federal government’s marquee method for overhauling the nation’s most troubled police departments, often after high-profile incidents of police brutality.

On Friday, the Justice Department released the findings of its investigation of police abuses in Minneapolis, where Floyd was murdered on the street by a veteran officer. With the withering 89-page report, the department has taken the first step toward negotiating a consent decree with Minneapolis, which would join a host of cities whose police forces are already operating under federal supervision.

Ferguson, Missouri, the city where Michael Brown was killed by the police in 2014, has a consent decree. So do Baltimore, Cleveland, Newark, New Orleans and several other cities.

In Minneapolis, police face the prospect of working under parallel consent decrees, one with the state that was agreed to earlier this year and one with the U.S. Justice Department.

Critics and proponents acknowledge that consent decrees can be onerous. They can include hundreds of requirements, cost cities millions of dollars and last so long that residents forget what success was supposed to look like.

Still, the consent decree is almost always the government’s most potent tool for reforming law enforcement agencies. By and large, experts say, consent decrees work, at least for as long as the oversight is in effect. They have a track record of reducing officers’ use of force and the number of complaints and lawsuits against them.

How enduring their impact will be is harder to judge since many of the consent decrees of the past decade are still in force. Consent decrees last until a judge is satisfied that a city has met the requirements. In recent months, the Justice Department has filed motions saying that Seattle, whose consent decree was put in place in 2012, is in compliance and that Albuquerque, New Mexico, where a decree went into effect in 2015, is close.

The Department of Justice report on Minneapolis echoes those issued in other cities: flush with statistics and details intended to underline the gravity of the findings and ensure cooperation. In Baltimore, the Justice Department said, 91% of those arrested on discretionary offenses such as trespassing were Black. In Ferguson, it said, officers had given a Black man sitting in his parked car a seat-belt violation.

After the report, the next step is negotiating the remedies that will be part of the eventual decree. Louisville, Kentucky, where Breonna Taylor died in a botched police raid in March 2020, is currently in the negotiating phase.

Backed by the legal firepower of the federal government, consent decrees emerged in response to police departments with a history and culture of disregarding civil rights, and local political leaders lacking the will, support or money to make real changes.

A key goal is transparency, and the decrees often require departments to collect better data and share it. Yet, it can be woefully difficult for the average citizen to check whether police are shooting and killing fewer people, fielding fewer complaints, or turning on their body cameras when they are supposed to. Those who try may be faced with hundred of pages of bone-dry quarterly reports or mystifying color-coded graphics.

After the death of Freddie Gray in 2015, Baltimore entered one of the most complex and comprehensive consent decrees ever written, weighing in at 227 pages. The department now reports that it is on track to comply with 86% of the decree, and touts an 82% reduction in police shootings from 2021-22.

Because consent decrees seek to correct systemic problems, they often take a soup-to-nuts approach, from rewriting policies on when officers can use force to revamping everything from internal affairs investigations to cadet training. But what some view as necessary, others say is overwhelming.

“It’s kind of like the old saying, when everything’s a priority, nothing’s a priority,” said Jason Johnson, who was a deputy police chief in Baltimore overseeing compliance with the city’s consent decree. In a recent column, he warned Louisville to bargain carefully. “When you lay out this massive consent decree, honestly, it’s like the department just stepped into a bucket of concrete.”

Johnson, who calls himself a “constructive opponent” of the decrees, said the layers of approval they require made it hard for Baltimore to implement changes swiftly. And, he said, the Justice Department wanted rules for officers that went further than the Constitution required, without regard for whether they hampered the ability to stop crime. “I can tell you from being at the table, there was no interest in having conversations around what the impact might be from some of these policies,” he said.

Departments also have to bear the costs of new technology, better equipment and better training, as well as fees for a monitor to check their compliance. Even so, believers point out that consent decrees may be far cheaper than unconstitutional policing. Minneapolis has paid out more than $70 million in police misconduct settlements over the past five years, including $27 million to Floyd’s family.

“What we’re talking about is broad institutional reform,” said David Douglass, deputy monitor of the New Orleans consent decree and founder of a nonprofit group called Effective Law Enforcement for All, which helps communities develop voluntary reforms. “So, yeah, it’s expensive, but I think I would say, ‘So what?,’ measured against the harm and the resulting benefit.”

One strength of consent decrees, for those who like them, is that they are not subject to the political winds that blow mayors and police chiefs in and out of office. In Baltimore, Michael Harrison, who was brought in as commissioner because of his success in implementing New Orleans’ police overhaul, just resigned, but the consent decree remains. Experience running a department with a consent decree has become a plum line on a chief’s resume. In Minneapolis, the new chief is Brian O’Hara, who came from Newark, where he served as public safety director.

Consent decrees began in the 1990s, when in response to the Rodney King beating by officers in Los Angeles, Congress gave the Justice Department the power to address systemic problems in law enforcement agencies if they found a “pattern or practice” of civil rights violations. The decrees proliferated during the Obama administration, which opened more than two dozen investigations, issued detailed reports of abuses and crafted detailed agreements to match.

The Trump administration essentially rejected consent decrees, with Attorney General Jeff Sessions saying they killed officer morale. When the Justice Department under Sessions appeared to back away from entering into a consent decree with Chicago, the state’s attorney general stepped in to overhaul that department.

About a dozen consent decrees are currently in effect. Under President Joe Biden, the Justice Department is once again pursuing them and last year signed a consent decree to overhaul the narcotics division of the police department in Springfield, Massachusetts.

Agreements with Louisville and Minneapolis would be tests of the administration’s efforts to make consent decrees more effective. Attorney General Merrick Garland has issued new rules that include capping monitor fees and automatically holding a termination hearing for all consent decrees after five years.

Christy Lopez, who was an architect of consent decrees at the Justice Department during the Obama administration and is now the co-director of Georgetown Law’s Center for Innovations in Community Safety, said consent decrees should continue to evolve.

She will be looking for fresh approaches from the Biden administration, such as having the public help determine what compliance looks like or taking a broad view of public safety that includes things such as improving access to mental health care.

“This is really what I would call the third wave of investigations and consent decrees that’s coming into fruition here, and the question is: Will we see things getting better?,” Lopez said. “The signals are mixed.”

This article originally appeared in <a href="https://www.nytimes.com/2023/06/17/us/consent-decrees-police-reform.html">The New York Times</a>.