Sen. Jeff Sessions made it clear this week that he’s not a fan of consent decrees that the Obama administration’s Justice Department has reached with several police departments, in an effort to reduce civil rights abuses.
But Sessions won’t be able to wave those agreements away once he becomes the Trump administration’s attorney general. Instead, he will likely have to live with them, and will only have the option of not striking any more of these agreements once he takes office, according to legal experts.
“No, Sessions cannot come in and pull them,” David LaBahn, president of the Association of Prosecuting Attorneys told The Washington Examiner.
Consent decrees are used by the Justice Department to address constitutional violations and civil rights abuses in police departments. The Baltimore Police Department recently entered into one with the department after it released a scathing report on its patterns and practices, and Chicago’s department is now negotiating one.
According to the DOJ’s Civil Rights Division, it has opened 25 investigations into police departments since the start of the Obama administration and found patterns of excessive force in more than a dozen departments, including Portland, Ore., New Orleans and Puerto Rico, among others. In addition to the newly reached one in Baltimore, the department is now enforcing 15 consent decrees.
While the decisions to pursue these agreements are political, the resulting agreements are binding, which is why they are filed in court.
LaBahn explained that consent decrees are for the most part not controversial. Police departments go to the federal government for help with reform because they cannot do it on the state or local level.
The New Orleans Police Department entered into a consent decree with the Justice Department when Ronal Serpas was its superintendent, and agrees that controversies are hard to find with consent decrees. Serpas told the Washington Examiner that every citizen expects and deserves constitutional policing. Once that isn’t the case, the federal government is the only place a department can turn.
“I believe NOPD needed it and still needs it,” Serpas said of the 2012 consent decree. “If the city, state fail us, the only place left to go is the federal government.”
According to Serpas — who is now a professor at Loyola University New Orleans — consent decrees definitely became “more collaborative” under President Obama, and he expects that to be the same in a Trump administration.
Police Foundation president Jim Bueermann served in every unit within the Redlands, Calif., Police Department in his 33-year tenure, and agrees that the consent decrees under Obama have been more collaborative.
If there is any change under Sessions, it will be because the senator “philosophically believes police reform issues should be handled at the state or local level,” Bueermann said.
“Sessions conceptually agrees on how policing should be, but it is soon too to tell how he will get there,” Bueermann explained.
Sessions made it clear in his Senate confirmation hearing that he’s wary of many of the agreements reached under the Obama administration.
“I think there is concern that good police officers and good departments can be sued by the Department of Justice when you just have individuals within a department that have done wrong,” he told the Senate Judiciary Committee. “These lawsuits undermine the respect for police officers and create an impression that the entire department is not doing their work consistent with fidelity to law and fairness, and we need to be careful before we do that.”
He said it’s not “necessarily a bad thing” that decrees are court-ordered and court-binding, but he did seem to signal that he would not seek them out.
“It’s a difficult thing for a city to be sued by the Department of Justice and to be told that your police department is systemically failing to serve the people of the state or the city,” he said. “So that’s an august responsibility of the Attorney General and the Department of Justice and so [cities] often feel forced to agree to a consent decree just to remove that stigma, and sometimes there are difficulties there, so I just think we need to be careful and respectful of departments.”
At the same time, he indicated existing decrees must be enforced. “Those decrees remain in force until and if they’re changed, and they would be enforced,” he said during questioning from Sen. Mazie Hirono, D-Hawaii.
Some congressional lawmakers are looking to curb consent decrees. Rep. Doug Collins, R-Ga., this week introduced legislation that he says will slow down the federal government’s ability to “participate in back-door sue-and-settle arrangements with special interest groups.”
Collins cited the use of consent decrees by the Environmental Protection Agency to partake in what he calls “sue-and-settle arrangements.”
Senate Judiciary Chairman Chuck Grassley filed identical legislation in the Senate.
