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Policy Summary: On April 16, 2021 new U.S. Attorney General Merrick Garland issued a memorandum titled “Civil Settlement Agreements and Consent Decrees With State and Local Governmental Entities.”

The memo was comprised of four points. First, the new memo rescinded a November 2018 memo that imposed restrictions on the traditional use of consent decrees against state and local law enforcement entities. That November 2018 memo was issued by then Attorney General Jeff Sessions. Second, the new memo instructs that settlement agreements and consent decrees would return to the traditional process of approval that had been in place prior to Attorney General Sessions November 2018 memo. Third, the use of consent decrees again must lay out specifically what the violations are, what remedies are being proposed and how the remedies will address the violations. And lastly, the memo instructs that if monitors are brought in to help oversee the proposed consent decree that the monitors are independent, highly qualified and free of conflicts of interest. LEARN MORE

Policy Analysis: When Attorney General Jeff Sessions issued the November 2018 memorandum limiting the use of consent decrees against state and local police departments it was seen as a move to limit the federal government from interfering with how state and local police departments are run. During Sessions’ confirmation hearing for Attorney General he stated that he was concerned with the effectiveness of consent decrees and thought that they were used to punish an entire department for the actions of one bad apple. The problem with Sessions statements was that they were incorrect. Under the Violent Crime Control and Law Enforcement Act of 1994, the Department of Justice is permitted to review the patterns and practices of a law enforcement agency. This is the statutory authorization for DOJ to initiate a civil lawsuit against a state or local police department. But an investigation is only opened if there is a “pattern or practice” of misconduct in the police department. DOJ does not get involved for one incident or “one bad apple” as Mr. Sessions called it. A department must have a pattern or multiple incidents of questionable policing techniques. This would then allow DOJ to come into the picture and suggest and monitor improvements to the department.

Police departments have to enforce all laws – local, state and federal – but this law allows DOJ to help local law enforcement improve their policing techniques. DOJ will inform the department that it will initiate a civil lawsuit to investigate the questionable techniques that have led to so many incidents. Most law enforcement departments, in order to avoid a public lawsuit, will cooperate and come to an agreement with what they need to do to improve (a consent decree is similar to a settlement agreement in a regular civil case – coming to an agreement without having a trial). A court will handle oversight on whether progress is being made. Some local law enforcement departments didn’t like someone always looking over their shoulder and so Jeff Sessions tried to help them out by limiting how long a court can oversee a consent decree by adding an expiration date for oversight. Attorney General Garland reversed that by eliminating expiration dates on court oversight of consent decrees and said courts will continue to monitor with enforcement powers until the court is satisfied that improvements are working.

Since every situation is different not all consent decrees are the same but are tailored to resolve the findings made by DOJ to further prevent the pattern or practice of misconduct that led to the unacceptable policing techniques. As an example, the consent decree between the City of Baltimore and DOJ addressed the policing techniques that plagued Baltimore in the years preceding 2017 and gave a roadmap as to what needed to be done to improve the Baltimore police department. Each consent decree that a law enforcement department has entered into with DOJ is enforceable by a court and can continue until a court is satisfied that meaningful improvement has been made. The involvement of DOJ and a federal district court ensures that a neutral third party will oversee the efforts of improving policing techniques instead of leaving it to local officials who may not be as eager to push forward needed reforms.

Former Attorney General Sessions November 2018 memorandum was a disappointment because it removed a proven tool to hold police departments accountable for multiple misconduct incidents. But with now Attorney General Merrick Garland’s recission of the November 2018 memorandum DOJ is now going to get back in their tool kit a proven method to implement change in police departments. According to the Washington Post, a report suggests that the use of consent decrees to hold police departments accountable helped improve those departments. And a report from Police One, a pro – law enforcement website, suggests that courts and other public figures are happy with the progress consent decrees have brought to their departments. The use of settlement agreements and consent decrees have proven their worth and have brought much needed improvements to troubled police departments when utilized. Attorney General Garland’s move to resurrect their use comes at an important and pivotal time when local police departments are under close scrutiny because of questionable policing techniques against minority communities. Bringing them back for the DOJ to use just might be what is needed to support the movement for police reform now in 2021. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources:

Department of Justice (DOJ) – infopage on DOJ’s consent decree work with local and state law enforcement agencies.

Institute For Criminal Justice Training Reform – non – profit group advocating for new and better police training standards and methods.

ProPublica – website’s 2020 report on how consent decrees have been used to implement policing technique reforms.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

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