The murder of George Floyd did what tens of thousands of similar cases failed to do; it pushed police reform to the top of the agenda inside the beltway. GOP Senator Tim Scott prepared a meager reform bill, but it was sunk by Senate Democrats. Meanwhile, House Democrats passed a competing proposal that goes much further to fix America’s police force, but the bill faces a bleak future in the Senate. The House bill proposes repealing qualified immunity, which the state of Colorado already did at the state level and Massachusetts will soon vote to do after another hearing in the statehouse.
Last month, Trump signed a paltry executive order partially prepared by Jared Kushner that bolsters the gathering of data from police departments and incentivizes departments to take part in a new credentialing program with federal grants. In contrast, Joe Biden wants to bring back one of the best tools ever created by Congress to fix Police Departments (PDs). U.S. Section 14141 is a 1994-law that gave jurisdiction to the Justice Department (DOJ) to investigate and prosecute entire police agencies for a “pattern or practice of police misconduct,” shackling them with meticulous multi-year reform programs.
U.S. authorities struggled for decades to deal with police corruption and accountability, appointing commissions that redundantly rediscovered what people already knew, even as far back as the 1930s, especially in the black community. The 14141 “pattern or practice” law was passed in the wake of the beating of Rodney King by a several LAPD officers and the subsequent acquittal of the four officers who were charged, which led to riots and a national reckoning over police brutality, which sounds eerily similar to what we’re facing now again today, almost 28 years after Rodney King.
I wrote a book about two “pattern or practice” investigations which went all the way through the process of reform, but it was difficult to get anyone in the DOJ to say anything on the topic, according to policy, which means that the public generally knows rather little about the program.
Where 14141 program stands now
Only in the later years of the Obama administration did the feds begin to release more extensive reports on their findings. Three weeks before Trump’s inauguration, the Civil Rights Divison released a paper about the program, sensing correctly that this essential tool of reform would be consigned to history by Trump, which it was by the time Jeff Sessions left office. For the program, this transparency was too little, too late.
Under the leadership of Former Attorney General Jeff Sessions, the DOJ interfered with decrees in Baltimore, Chicago, and Cleveland, and lifted Warren’s decree, while today New Orleans. Seattle and Portland are still under decree. Before leaving office, Sessions put extensive restrictions and requirements on any future federal investigation of local police misconduct. The intention was to completely hamstring the Civil Rights Division from any civil rights enforcement on American police, which had investigated around 70 police agencies and settled with 40 agencies around the country, at the municipal, county, and state level, ebbing and flowing with the pendulum of presidential politics.
Benefits of “pattern or practice” investigations and consent decrees
When a police department attracts federal attention over a pattern of police misconduct, the effect radiates internally within the department and outward to the surrounding communities. In Los Angeles, the LAPD commanders put up a list of the Bill of Rights and had a wide-ranging discussion with the rank and file, according to Joe Domanick in Blue. As the reforms took root, the frequency of the use of force by LAPD officers fell for a number of years, and the public opinion polls registered a massive improvement in people’s view of the LAPD. In Seattle, the use of force went down 60% in five years. In Portland, it went down by 30% two years, while crime rates remained flat. Similar drops were reported in Warren and Cleveland during the implementation of hundreds of policy reforms and new training.
Some cities have used the consent decree as an opportunity to create a forum where police and the community can find collective solutions, as in Cincinnatti where the organization for collaboration endured well after the consent decree was lifted. In other cases, mentioned prominently by Christie Lopez, a former auditor for the DOJ, chiefs from neighboring departments have inquired about and adopted the best practices recommended by the feds.
The feds planned it this way, trying to distribute their investigations among cities big and small, hitting county sheriffs in some cases, and state police, as well. The threat of a consent decree, which is basically a judicial condemnation of the conduct of an entire agency, especially its chief. In many cases, police chiefs have been replaced in the course of a 14141 investigation. Frequently, it was because the chief resisted reform, but it’s not always just the chief, which raises an issue for the strategy of police reform by consent decree, which we’ll discuss in the next section.
Problems with “pattern or practice” program
If local officials and the culture of the agency go against the reforms proposed by the DOJ, consent decrees can fail to achieve sustainable reform. Examples abound of police departments that temporarily improved, but later many went back to business as usual after the federal auditors and monitors stopped reporting on their practices.
After the feds left, rhe Steubenville police closed the independent internal affairs office they had opened at the DOJ’s request. The Warren police backslid on the integrity of their citizen complaint and resolution process, which had taken years to improve. The Pittsburgh police chief was quoted in the NY Times as saying their consent decree “didn’t take.” The Columbus Police fought the DOJ and kept them out, but without federal oversight, the division has lurched from one scandal to another. Cleveland was investigated twice and came under decree the second time.
The reforms can be sandbagged during the implementation and even before the terms of the consent decree are agreed upon by the parties of the lawsuit. Local politicians often resist and vilify the feds, although it’s usually the irresponsibility of those same officials that caused the intervention. Former Warren Safety Services Director Fred Harris said of their consent decree, “As long as the consent decrees are controlled by the politicians, they get weakened, so that they’re a waste of time.”
Another drawback is that referrals to the criminal division during investigations and consent decrees seem rarely to result in charges against individual police officers. For example, in the course of the New Orleans decree, the feds discovered a case where a cop had hired a drug-dealer to kill someone. It was referred to the criminal division and the officer was prosecuted. However, a similar case in Warren / Youngstown involved cops hiring a hitman to kill a government witness for a jailed coke-dealer was ignored and the cops stayed in their positions while their department was under DOJ oversight.
Sometimes, many veteran officers resign or retire when they realize their power will be constrained, but although PDs often change their policies and practices, there is often not the kind of restorative justice or closure that pleases victims of police brutality and sometimes the reforms are rolled back after the feds leave town for good.
Steps to improve policing in America
At the federal level, asset forfeiture, which invariably turns cops into bandits with a badge, must be repealed immediately. Consent decrees would be more effective with more in-depth diagnostic investigation into local corruption, misconduct, and brutality, not just in the PD’s but also in the municipal and county courts, which happened in Ferguson, but none of the cities in the 20 years before 2015. After participating in two decrees, Richard Olivito recommends a lookback provision whereby oversight can be reconsidered five years after the lifting of the decree if the department backslides into brutality.
Police accountability can be beefed up at the state level, removing qualified immunity and tasking state attorney generals to investigate and prosecute departments when the feds do not.
At the local level, the problem is the mayors’ power, if you have a strong mayor, then you can control the PD, by firing the chief.
The other problem is you can’t make systemic changes because of the contracts negotiated by the unions, then fighting them in front of arbitrators of the CSC. The cops often get their disciplinary record cleared at the end of each year, according to their union contact. The police union goes after the mayor if the safety director tries to make changes. However, despite this, over a hundred cities in American have adopted citizen review boards, which can act as a double layer of accountability, but they need to be entrusted with subpoena power.
The last problem is cultural, from the television series that glorify law enforcement into pseudo soldiers and in police academy where the standards for the use of lethal force are too loose. Out of the academy, the young officers are indoctrinated by older officers before being recognized by the union. There’s no amount of training that will change these attitudes once they take root, only costly intervention by the Justice Department.
The scope of duties for police officers today in the US is driving many officers in prisons and PDs to depression, substance abuse, domestic violence, “crisis level” rates of PTSD, and the highest rates of suicide of any profession. It’s high time we start scaling back what police officers are required to do for the community and holding them accountable for abusing their power.