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Under a consent decree with the U.S. Department of Justice, police in Ferguson, Mo., have mandated training in force de-escalation and implicit bias.
Commentary

Here's Why Jeff Sessions' Parting Shot Is Worse Than You Thought

Former attorney general’s directives make it easy to render federal action against abusive police departments ineffective.

On his last day as U.S. attorney general, Jeff Sessions issued a memo making it more difficult for Justice Department officials to obtain court-enforced agreements to stop civil rights abuses by local police departments. At least, that’s how his missive has been framed. It’s actually worse than that.

Stymieing future consent decrees is bad enough, but Sessions’ memo will make it challenging to negotiate any effective police reform agreement going forward. It also makes it more difficult for the Justice Department’s civil rights lawyers to enforce agreements already in place.

Consent decrees are legally binding agreements with local police departments found to have engaged in practices that routinely violate the civil rights of those within their jurisdictions. The Justice Department has negotiated such agreements in places like Ferguson, Baltimore, New Orleans, Cleveland and Los Angeles. Work remains to be done. Just last week, another possible candidate has emerged in Elkhart, Indiana, where ProPublica reports that out of 34 police supervisors, 28 have been disciplined, 15 suspended, seven involved in fatal shootings and three convicted of criminal charges.

A report on the use of force in police departments across the country released last week by the U.S. Commission on Civil Rights further underscores the broad need for this work. That report discusses a generally high rate of use of force, racial disparities in how force is used and the rift such tactics drives between police and communities most in need of police protection. The report calls for the Justice Department to return to “the use of consent decrees where necessary to ensure that constitutional policing standards are upheld.”

The DOJ’s own police misconduct statute explicitly requires that the attorney general seek relief that will eliminate the pattern or practice of misconduct, and case law requires that consent decrees do more than simply prohibit unlawful conduct. But Sessions’ memo ignores those requirements, directing any relief to be “narrowly tailored” to the injury caused by the misconduct, and that a consent decree not be used to achieve a “general policy goal.” These directives make it easy for those hostile to federal enforcement to line-item veto the most critical portions of a consent decree, rendering the entire order ineffective.

For example, Baltimore and Ferguson both have consent decree requirements mandating training in force de-escalation and implicit bias. These are corrective actions necessary to remedy patterns of excessive force used against persons in mental health crisis and black men. Will political appointees in this administration understand this—will they care? Is requiring greater community engagement, as many consent decrees do, a “general policy goal” prohibited by the memo? Or is it an essential element to overcoming the bias and stereotypes that fuel unlawful racial and ethnic discrimination by police? Police experts know it is the latter, but there is a good chance that this Justice Department would categorize it as the former.

The memo also discourages new consent decrees that are more than three years long, or requirements that a decree remain in place until the remedy has been fully implemented. This takes another unique consent decree strength—its staying power—and turns it on its head.

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The Sessions memo, contrary to some news reports, also has implications for consent decrees that are already in place. For one thing, it states explicitly that any significant change to a consent decree must be approved in the same manner as a new consent decree, thus making them subject to all the same roadblocks above.

Sessions’ memo also takes pains to emphasize that states are “sovereign” with “special and protected roles” and that, when investigating them, the Justice Department must afford states the “respect and comity deserving of a separate sovereign.” Thus, whether the harm is related to housing, education, employment or disability, Sessions’ memo is consistent with his past statements and his long history of states’ rights arguments to disadvantage poor people and people of color. In his view, the Justice Department should be more concerned about protecting states from the burden of abiding by federal law than about protecting individuals from being hurt or killed by the state. This, to put it mildly, makes it difficult for Civil Rights Division attorneys to do their jobs.

Indeed, under his memo, one of the few circumstances in which a consent decree may be appropriate is where it might protect a state from being sued by someone else. If reaching a settlement agreement with the Justice Department will help an abusive police department forestall a lawsuit by the ACLU or a state Attorney General, then Justice will oblige. Yes, you read that correctly: Sessions’ memo, like its author, supports states’ rights except where the state is trying to protect individual rights. We saw that in Sessions’ opposition to state- and local-created sanctuary cities, state legalization of marijuana, and, most pointedly, in his filing of a statement opposing the police consent decree negotiated between the state of Illinois and Chicago.

Worst of all, this memo is far more than a parting shot by Sessions. It is better seen as an opening shot. After all, acting Attorney General Matthew Whitaker—should he, as is always a question with Trump appointees, last very long in his position—has made clear that he believes that courts are the “inferior” branch and that states should nullify federal laws.

There won’t be any new police consent decrees in this administration. Given that they would likely be a self-fulfilling prophecy of failure, that’s probably the best of two very bad choices. We will have to work doubly hard to support efforts to ensure that even current consent decrees are effective. As has so often been the case with this administration, we will have to look to the courts, to local governments and to grass-roots political protest and pressure to protect our civil rights from police abuse. Because, as the Sessions memo confirms, this Justice Department has no intention of letting its civil rights division protect us from abuse by the state.

Christy E. Lopez is a distinguished visitor from practice at Georgetown Law. From 2010 to 2017 she was a deputy chief of the special litigation section of the U.S. Department of Justice's civil rights division, where she oversaw investigations of the Chicago, Ferguson and New Orleans police departments, among others. She may be reached at christy.lopez@georgetown.edu.