American Police Reform and Consent Decrees

After hundreds of thousands of legally questionable stop-and-frisks, several hundred million dollars of legal settlements and countless protests on the streets of New York City, the nation’s largest police department is now under the oversight of US District Judge Shira Scheindlin.

Judge Scheindlin’s August 12, 2013, ruling that NYPD’s long-standing stop-and-frisk policy amounts to racial profiling was a landmark in American law enforcement, placing NYPD under a form of federal oversight known as federal monitoring. Federal monitors and consent decrees (settlement agreements between the city and plaintiffs alleging civil rights violations – Scheindlin’s adversarial judgment against NYPD imposes monitoring, rather than the city consenting to it) are the official method for correcting civil rights abuses by law enforcement in the United States and have been used throughout the country since the mid-1990s in cities such as Los Angeles, Washington, Pittsburgh and Cincinnati. There are active consent decrees in Detroit, Oakland, New Orleans and Seattle – consent decrees are the legal agreement under which federal monitors are appointed.

The 1994 Violent Crime Control and Law Enforcement Act allowed the Department of Justice to open investigations into local and state law enforcement agencies suspected of civil rights violations. If departments were found to break the law, they would be placed under the oversight of a federal court and required to enter into a “consent decree,” or a series of reforms designed to safeguard against future abuses by law enforcement. The agreement is overseen by a court-appointed federal monitor who conducts quarterly audits of the law enforcement agency’s progress on the reforms.

Over the years, the Department of Justice’s use of consent decrees to implement police reforms has been driven largely by the priorities of the incumbent administration. President Bill Clinton’s term saw consent decrees implemented in Pittsburgh, the District of Columbia, Los Angeles and New Jersey. Unsurprisingly, George W. Bush’s two terms in office saw a sharp reduction in the number of pattern-and-practice lawsuits (the investigations that form the bedrock of consent decrees) brought by the Justice Department. The only major consent decrees begun during Bush’s term, against Detroit and the ongoing federal oversight of the Oakland Police Department, was the result of a class action brought by 119 plaintiffs alleging systematic brutality by a group of four rogue cops known as the “Riders.”

“The Department of Justice walked away from the big cities during the Bush years,” said Samuel Walker, professor emeritus of criminal justice at the University of Nebraska-Omaha and one of the leading experts on police oversight. “Nobody touched Chicago or New York City, when there arguably was a need for federal investigations.”

Over the years, Walker said, consent decrees have grown in their length and intricacy as successive consent decrees present new dilemmas and solutions for police reform. “The Department of Justice has learned how complex policing is and how complex remedies are,” Walker said. When compared with the NYPD settlement or similar consent decrees in New Orleans or Seattle, Walker said the first settlement agreement for the Pittsburgh Police from 1997 “looks like ancient history.”

These consent decrees have not come without controversy or resistance: Some law enforcement agencies have deliberately dragged their feet on implementing reforms, such as the New Jersey State Police and the Oakland Police Department, where former command staff members remarked that the consent decree “sat in a desk drawer” for the first two years after it was implemented. In Cincinnati, where the police department was placed under federal oversight after the 2001 killing of a teenager by a CPD officer, touching off three days of rioting, the relationship between CPD and court-appointed monitor Saul Green degenerated into “mutual contempt,” according to then-Mayor Charlie Luken. Things turned so sour that at one point, the police chief had Green escorted out of CPD headquarters. However the presiding federal judge intervened and smoothed over Green’s relationship with the department. Cincinnati successfully completed its reform program and ended federal oversight in 2009, with Green lauding the seven-year process as “one of the most successful police reforms ever undertaken in this country.”

Consent decrees and federal monitoring are credited with reforming the Los Angeles Police Department in the wake of the Rampart scandal – which involved several narcotics officers who dealt seized narcotics, committed shootings, rapes and bank robberies and framed suspects, among other crimes – providing the inspiration for Denzel’s Washington’s character Alonzo Harris from “Training Day.” When former NYPD Chief of Police William Bratton took over LAPD in 2002, he embraced the reform program and made coming into compliance a departmentwide priority. As a result, community relations with LAPD improved dramatically as crime decreased during Bratton’s term: A 2009 survey of Angelenos by Harvard’s Kennedy School of Government found that 83 percent of residents said LAPD were policing in an effective and even-handed way.

David Sklansky, a Berkeley School of Law professor who served as an independent investigator into the Rampart scandal, said LAPD’s consent decree was an unqualified success. “There’s been a dramatic change in the culture of the LAPD,” Sklansky said in an email. “Much of the credit for that has to go to the consent decree, but a great deal of the credit must also go to the LAPD itself and to the way that it responded, from the chief on down, to the demands placed on it by the consent decree.”

LAPD’s successful reform effort managed to rectify the department’s once-toxic relationship with black and Latino Angelenos. That experience – and the subsequent drop in LA’s violent crime rate – stands in sharp contrast to Oakland, where intransigence from old-guard elements of the police department and the city administration toward OPD’s consent decree have led to partial control of the police department by a court-appointed compliance director and cost taxpayers tens of millions of dollars. At the same time, OPD’s violent crime rate has spiraled out of control as OPD’s skewed compensation system (which annually consumes 40 percent of Oakland’s general fund) leads to chronic understaffing and more than two-thirds of the city’s hundred-plus murders per year going unsolved.

Aside from Oakland’s decadelong struggle, law enforcement in Seattle and New Orleans also are pushing back against court-mandated restructuring programs. Seattle signed a consent decree with the Department of Justice in 2012 after a series of highly publicized use-of-force incidents were made public in 2010 and 2011 – a number of which were caught on video. Merrick Bobb, a Los Angeles attorney who heads the Police Assessment Resource Center and participated in oversight of the LAPD and Los Angeles Sheriff’s Department during the 1990s, clashed publicly with Seattle Mayor Mike McGinn over expenses his monitoring team billed the city this winter. More recently, council members have partially blamed the consent decree for a rising violent crime rate in downtown Seattle.

The New Orleans Police Department and the Orleans Parish Prison were placed under federal oversight after respective scandals about covered-up police murders and widespread rape, abuse and neglect in county detention facilities were uncovered.Ironically, federal oversight for NOPD was averted narrowly in the 1990s when the city leadership agreed to enact a voluntary reform program that was rolled back by succeeding mayors and police officials. US District Court Judge Lance Africk’s 104-page opinion in support of the Orleans Parish Prison consent decree called the facility’s conditions “an indelible stain on the community” In early summer 2013, New Orleans Mayor Mitch Landrieu’s administration appealed the consent decrees covering Orleans Parish Prison and NOPD, arguing it couldn’t afford to pay for two simultaneous consent decrees that could cost $10 million to $20 million per year.

Mary Howell, a longtime civil rights attorney in New Orleans, said Landrieu’s about-face on the city’s consent decree and opposition to reforming Orleans Parish Prison is disappointing. “Cities all over the country have been suffering financially – that’s a legitimate complaint,” Howell said. “If we want to be a modern city where we respect the constitutional rights of our citizens, there has got to be a consent decree.” Before Hurricane Katrina, Howell said that NOPD and the parish prison essentially were failed institutions, and the storm exposed “the profound dysfunction in the police department and in the jail.”

Despite Landrieu’s frontal assault on the consent decrees and the Department of Justice – which he called “a kind of rogue agency” in 2013 – the monitoring team in charge of overseeing NOPD’s consent decree has been chosen by the court and is making the rounds in New Orleans. However, Howell said that New Orleanians are wary of what will come after federal oversight ends. “The day the consent decree goes into effect is the day you have to start planning for when it ends,” Howell said.

NOPD’s consent decree does have one drawback – it marginalizes the role of the city’s Independent Police Monitor, an agency created in 2009 with the goal of monitoring and auditing NOPD conduct. The IPM, Howell said, will be around long after federal oversight ends and has a peripheral role in the consent decree. However, the IPM’s attempt to win a broader role in the consent decree was dealt a setback earlier this year after having an intervenor motion denied. An appeal is pending.

Landrieu’s decision to appeal the consent decrees was mirrored last week by New York Mayor Michael Bloomberg, who filed an appeal of Judge Scheindlin’s decision to impose monitoring of NYPD’s stop-and-frisk tactics. Although the move could result in even higher legal fees for both cities, their actions represent a growing trend of municipalities actively resisting police reforms. However, the experiences of Los Angeles, Cincinnati and Washington with consent decrees make clear that this reform method does work, given enough time, resources and, critically, buy-in from local officials and law enforcement.

However, Judge Scheindlin’s adversarial ruling against the city over stop-and frisk means that if the appeal fails, New York City must comply with the judge’s program and will not get a say in how the reforms or monitoring are implemented, as is the case in other cities with federal monitoring. “They’re in a worse position than they were before the trial,” said Jonathan C. Moore, one of the attorneys who brought the stop-and-frisk class action along with the Center for Constitutional Rights. Mayor Bloomberg’s planned appeal of Judge Scheindlin’s verdict doesn’t appear to have legs – all the democratic candidates for next year’s mayoral election have vowed to withdraw the appeal on their first day in office.

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