It’s certainly symbolic that U.S. Attorney General Jeff Sessions has called for a review of agreements made by the Obama Department of Justice with urban police departments to improve law enforcement and race relations.
But in practice, reversing the 14 consent decrees in place would be extraordinarily difficult, and even the handful that are incomplete, such as the Baltimore decree, may well reach finality despite the review. President Donald Trump’s administration can affect community policing at the margin by signaling that it doesn’t care about police abuses. But it likely can’t roll back the steps taken under President Barack Obama.
The memo announcing the review raises warning flags. Signed by the attorney general and directed to the department heads at Justice and to U.S. attorneys across the country, it directs the deputy attorney general and the associate attorney general to review all collaborative arrangements between Justice and local police departments, including consent decrees “existing or contemplated.”
The stated goal of the review is to make sure those arrangements comply with policies expressed in eight bullet points in the memo. Some are unproblematic, like the goals of public safety and respect for civil rights.
One is more ambivalent: It says that local control is important and that the federal government shouldn’t manage local police. Taken literally, that’s unquestionably true, and the Obama Department of Justice wouldn’t have disagreed. The intent, however, may be to signal that Justice shouldn’t be involved in supervising local police to make sure they aren’t violating civil rights.
Most significant — and most noticed — is the bullet point that says “the misdeeds of individual bad actors should not impugn or undermine the legitimate and honorable work that law enforcement officers and agencies perform in keeping American communities safe.”
Again, that’s technically true. The consent decrees are meant to make structural reforms to procedures of policing, not cast a negative light on good cops.
Yet the implicit meaning seems to be that the consent decrees weren’t responding to genuine problems with police procedures. Instead, the decrees are implicitly being depicted as a kind of overreaction to highly publicized officer misconduct.
If Sessions’s Nos. 2 and 3 conduct a review that finds existing consent decrees violate these principles, that sounds worrisome. The reality, however, is significantly less bad, because of the way consent decrees are structured.
First, consent decrees are actually judicial decrees — not just consensual agreements between the federal government and local authorities. That means each and every one has been blessed by a federal judge, who has issued a binding order enforcing the terms of the deal.
To change a consent decree, you need to go to the judge who authorized and issued it. Typically a judge would require evidence of some changed circumstances before permitting a change. Anything else would make a mockery of the judicial function in approving the decree in the first place.
A judge issuing a consent decree isn’t supposed to simply rubber-stamp the parties’ agreement. The judge is supposed to be implementing the law and looking out for the interests of others, including the public.
And consent decrees typically can’t be altered by just the Department of Justice. It takes both parties to seek most changes; otherwise the judge would have to reconsider the facts, which most judges are not eager to do.
Here’s where the second major structural issue arises: Many municipalities won’t want to touch the consent decrees.
The party on the other side of the Department of Justice in each case is ordinarily a local government run by a mayor. And in most places made subject to consent decrees by the Obama Justice Department, the mayors were fully on board.
Police departments might have chafed under scrutiny and federal observation. But politically, liberal mayors with significant black voting bases had every reason to side with the federal government against their own police departments. For its part, the Obama administration had no political interest in weakening Democratic mayors. It was perfectly happy to shift such blame as existed to the police departments.
Because the police departments aren’t normally distinct legal entities suing and being sued, they aren’t parties who can join the Trump Department of Justice in seeking revision of the consent decrees. That means in most cases Justice would have to go it alone.
The same political structure might apply even to the Baltimore litigation, which hasn’t yet been resolved. The Justice Department requested that the federal judge delay a final hearing on the consent decree, and observed in its submission that changes already made by the Baltimore police might be taken “into account where appropriate” in the decree.
But it’s unlikely that the city of Baltimore is going to try to weaken the decree, because the mayor and police commissioner have both said they want the issue resolved now. That fits their political interests in changing the subject; and it reflects the reality that many Baltimore constituents welcome some federal supervision.
This isn’t to deny that the Trump Department of Justice can skimp on enforcing the consent decrees in place. That will shift responsibility to civil society watchdogs to make sure the legal agreements are followed.
But the prospect of a major rollback is slim. In this instance, at least, the Obama administration’s actions will very likely remain consequential.
Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem — and What We Should Do About It.”