Justice Dept. Restores Use of Consent Decrees for Police Abuses 1

Attorney General Merrick Garland rescinded a Trump administration policy curbing use of the decrees, which provide a way to force changes in police departments.

WASHINGTON — Attorney General Merrick B. Garland on Friday rescinded a Trump administration policy that curbed the use of consent decrees to address police misconduct, as the Justice Department prepared to step up its role in investigating allegations of racist and illegal behavior by police forces amid a nationwide outcry about the deaths of Black people at the hands of officers.

Mr. Garland’s widely expected decision revives one of the department’s most effective tools in forcing law enforcement agencies to evaluate and change their practices. Consent decrees are court-approved deals between the Justice Department and local governmental agencies that create a road map for changes to the way they operate.

Mr. Garland’s announcement came against the backdrop of fresh unrest and protests sparked by the ongoing murder trial of Derek Chauvin, the former Minneapolis police officer who knelt on George Floyd’s neck for more than nine minutes before Mr. Floyd died, and the recent police killings of a motorist named Daunte Wright in the suburbs of Minneapolis and a 13-year-old boy named Adam Toledo in Chicago.

And it is one of the Biden administration’s first significant moves to hold police forces accountable in cases where they are found to have violated federal laws. President Biden has called Mr. Floyd’s death a travesty and signaled support for the George Floyd Justice in Policing legislation that Democrats in the House recently passed. But he has reversed course on a campaign promise to establish a police oversight commission during his first 100 days in office.

“Consent decrees and underlying pattern and practice investigations are one of the most powerful tools any administration has to address policing issues,” said Kristy Parker, a veteran of the Justice Department’s Civil Rights Division who now works at the nonprofit legal group Protect Democracy.

“Unlike passing legislation, it’s a tool the administration controls,” she said. “The ability to conduct exhaustive investigations and reform police departments by negotiating consent decrees allows an administration to produce a public airing of the systemic failures that produce excessive force and to work with jurisdictions to make meaningful comprehensive changes.”

In a memo to U.S. attorney’s offices, Mr. Garland said that he was lifting restrictions on the use of consent decrees that had been imposed by Jeff Sessions at the tail end of his tenure as attorney general during the Trump administration.

Mr. Garland said in his memo that consent decrees have historically been used in a wide array of contexts, including “to secure equal opportunity in education, protect the environment, ensure constitutional policing practices, defend the free exercise of religion” and more.

“A consent decree ensures independent judicial review and approval of the resolution” between the federal government and government entities found to have violated federal law, Mr. Garland said in his memo. They also allow for “prompt and effective enforcement” if those local government agencies do not comply with the terms of the agreement.

Under the Obama administration, the Justice Department aggressively used consent decrees and court monitors to push changes at police forces found to engage in a consistent pattern of abuse, as people nationwide decried the police killings of Black men in Baltimore, Chicago and Ferguson, Mo.

In some cases the Justice Department has not found sufficient evidence to charge officers in civil rights investigations, but it used consent decrees to address patterns of abuse by police forces, attacking the underlying issues even when no individuals were held accountable for a person’s death.

In the 2014 death of Michael Brown in Ferguson, Mo., the Justice Department issued an 86-page report that essentially cleared Darren Wilson, the officer who shot him, of wrongdoing. However, a six-month investigation found that the Ferguson Police Department routinely violated the constitutional rights of its Black residents and was incentivized to do so to generate revenue for the city.

In the killing of Tamir Rice, a 12-year-old Black boy shot by a Cleveland police officer in 2014, Justice Department officials doubted that they could build a civil rights case against the officer, but they obtained a consent decree to overhaul the Cleveland Police Department. Lawyers for Tamir’s family have asked Mr. Garland to reopen the inquiry into his death in light of allegations by a whistle-blower that Trump-era officials stopped prosecutors from pursuing a false statements case against the officer.

Police officials generally acknowledge that consent decrees can be useful, and they have on some occasions asked the Justice Department to appoint monitors to help advance changes to their departments.

“They can help restore integrity to a police department, hold people accountable and help come up with policies, programs, procedures and best practices,” said Daniel Linskey, a managing director in Kroll’s Security Risk Management practice and the former superintendent in chief of the Boston Police Department.

But he said that police departments sometimes lose their ability to deploy resources and respond to threats when outside monitors, usually judges, are given too much power. There can also be financial incentives to extend the monitorship, he said.

“Who decides that you need to continue the monitorship?” Mr. Linskey said. “Usually, the monitor, who is being paid a pretty significant amount of money,.” He noted that Kroll does monitor work. He said he hoped that Mr. Garland would collaborate as much as possible with police departments in performing reviews and coming to consent decrees.

By the time a new wave of police killings sparked nationwide protests last summer, the Justice Department under the Trump administration had all but stopped using consent decrees to curb police abuses. Mr. Sessions said that the agreements handcuffed police departments and made it difficult for them to do their jobs.

In a final act before stepping down in November 2018, Mr. Sessions sharply limited the Justice Department’s ability to overhaul police departments by imposing three new requirements on their use, the most stringent of which forced career Justice Department lawyers to have any agreements signed off by politically appointed officials in the department.

Mr. Sessions also said that the department’s lawyers needed to lay out evidence of additional violations beyond unconstitutional behavior; and that consent decrees needed to have an end date, rather than end when the court was satisfied that improvements had been made.

Mr. Garland’s memo lifted those three restrictions.

The move “is a clear sign that, unlike during the previous administration, Justice Department leadership now supports the Civil Rights Division’s critically important work investigating police departments to detect and correct patterns of unconstitutional conduct,” said Christy E. Lopez, the co-director of Georgetown Law’s Innovative Policing program and a former official in the Civil Rights Division.

She said that the department could and should go even further by setting up a task force to review all of the Civil Rights Division’s open and proposed police investigations, evaluate the impact that the Sessions memo had on the division’s work and decide how to address that impact.

“Much more needs to be done to enable the division to rise to this moment,” Ms. Lopez said. “But this is a good step.”