September 18, 2021

DOJ Is Leveling the Playing Field


Dear PERF members,

I’ve been thinking about how the Justice Department has been making significant changes in how it relates to local police departments and sheriffs’ offices, and how it addresses issues like use of force and accountability. Today’s DOJ is listening to local police and setting itself apart from how it conducted itself in the past.

It’s a very refreshing change. Here are three examples of what I mean.

1. Reforming Consent Decrees and Monitors

Nine years ago, PERF held a conference about the issue of Justice Department consent decrees.  For years, I had been hearing complaints from a number of chiefs about consent decrees, especially in cities where the process had gone on for 8 or 10 years or more.

About 80 police chiefs, civil rights lawyers, DOJ officials, academics, and others participated in our meeting. It was a lively session, and we wrote up our findings in this report. The top DOJ officials in charge of consent decrees at that time came to the meeting:  Jonathan Smith, Chief of the DOJ Special Litigation Section, and his Deputy Chief, Christy Lopez.

I kidded Mr. Smith and Ms. Lopez that they were brave to “step into the lion’s den,” but it wasn’t really like that.  I gave them both a lot of credit for coming to the meeting and being informative and helpful in explaining DOJ policy.  And while consent decrees could sometimes be onerous and challenging, many chiefs at our meeting said that their experiences with consent decrees resulted in important reforms in their departments. Some noted that a DOJ consent decree helped them get the funding they needed from their city councils for expensive reforms, such as building Early Intervention Systems and providing officers with new equipment and training.

Two contentious issues

However, two issues stuck out at our meeting: (1) the fact that the consent decree process sometimes dragged on for a decade or more, and (2) the role of “monitors,” the people appointed by federal judges to assess whether police departments have made enough progress in implementing the agreed-upon reforms to close the case.

These two issues are somewhat related, because as our report noted, “Some say there is an inherent conflict of interest on the part of the monitors, because they believe the monitors have a financial interest in keeping the cases going.”

Scott Greenwood, general counsel for the ACLU, was a leader in Cincinnati’s consent decree process in 2002-2008, and he got a laugh at our meeting when he said, “In Cincinnati, our first monitor billed us for every breath he drew.”  The situation was so bad that after a month and a half, the ACLU went to the court and requested that the monitor be removed.

The irrepressible Ed Flynn, then Chief in Milwaukee, is never afraid to ask the tough questions.  He asked the DOJ officials at our meeting, “What makes a monitor worth 10 times as much as the police chief whose department he or she is monitoring?”  Jonathan Smith replied that the monitor’s fees support an entire team of experts, not just the monitor. But Ed’s point was a significant one.  In some cities, monitoring teams make as much as $100,000 per month, and fees run into the millions over years. 

Strong reforms from DOJ announced last week

With all of this as background, I was pleased to see that on Monday, Attorney General Merrick Garland announced major changes in how the Justice Department manages consent decrees. Last April, he had directed Associate Attorney General Vanita Gupta to conduct a study of the issue, and she conducted a thorough review, with input from police chiefs and other local officials, mayors, civil rights advocates, and current monitors.

I have known Vanita Gupta for some time, and when she became Associate Attorney General, we had someone who really understood these issues. She and I have talked about this issue in detail, and she asked me to get feedback from PERF members about their experience with monitors. Then she set up a call to debrief on what we found out.  Her attention to detail and follow-through is so refreshing.

In a 9-page memo to Mr. Garland, Vanita detailed the new reforms, and the Attorney General announced that he had accepted her recommendations, effective immediately.

DOJ did not mince words in describing the issues, as you can see in these quotes from the DOJ documents:

“The Department of Justice should take a number of steps that will both constrain costs and ensure that monitors are not viewed, rightly or wrongly, as making their monitoring work into a career.”
“Budget Caps: Future consent decrees will include an annual cap on monitors’ fees to increase transparency and help contain costs…. To increase cost-effectiveness, legal services providers are increasingly experimenting with flat fee arrangements, instead of billable hours, to reduce costs and promote efficiency. Such arrangements might be similarly useful in containing the costs of monitorships.”
“No Double Dipping: To dispel any perception that monitoring is a cottage industry, lead monitors in future consent decrees will no longer be able to serve on more than one monitoring team at a time.”
“Term Limits: To ensure that monitors are being held accountable, consent decrees will impose specific terms for monitors that can only be renewed after a process of judicial evaluation and reappointment.”
“Termination Hearing After No More than Five Years: To ensure that monitorships are designed to incentivize monitors and jurisdictions to move towards compliance as efficiently as possible, future consent decrees will require a hearing after five years so that jurisdictions can demonstrate the progress it has made, and if possible, to move for termination.”

These recommendations will make a huge difference in bringing some accountability into this process. And for cities that may face consent decrees, like Phoenix, Minneapolis, and Louisville, this will mean that the costs will be more reasonable. Monitors will be carefully selected, and a five-year term will give everyone a target date. This is huge.

I was also pleased to see that DOJ addressed another issue that came up at PERF’s meeting in 2012: how to define “compliance.” James White, at that time a Detroit Police Commander and now the city’s Police Chief, called on DOJ to remove sections of consent decrees one by one, as cities achieved compliance with each section.

 “It can be difficult to sustain substantial compliance every quarter for two years for every provision in the agreement, when the agreement contains 110 paragraphs,” Mr. White said at our meeting. “I suggest that once the agency has sustained compliance with certain paragraphs for two years, those paragraphs should be taken off the books, instead of continuously evaluating them every quarter until the end of the judgment.”

So it’s good that the new DOJ guidelines do just that:

“Monitorships must be designed to incentivize the monitor and the jurisdiction to move towards compliance as efficiently as possible…. To do so, decrees should encourage the parties to affirmatively recommend termination of sections of the decree for which jurisdictions achieve and sustain compliance.
“Compliance with a consent decree is not an all-or-nothing goal. Progress will inherently happen incrementally, and the monitorships should be designed with that in mind.”

It’s also encouraging that the COPS Office will assist the Columbus, OH Division of Police on issues of use of force, training, diversity, reducing bias in policing, and de-escalation.  Columbus asked DOJ for help in April, and DOJ announced on September 9 that the COPS Office – not the Civil Rights Division – will work with the city to implement reforms. This will be a much different experience, collaborative rather than litigious, compared to DOJ’s lawsuit against the City of Columbus in 1999. For many departments, the COPS Office’s “collaborative reform” model is win-win situation. The department gets advice, and the chief makes changes.

2. Chokeholds and “No-Knock” Entries

One day after announcing its consent decree reforms, DOJ announced new policies prohibiting the use of chokeholds and “no-knock” entries by federal law enforcement agencies. These changes bring the department in line with what many local police agencies have been doing.

Specifically, DOJ said that all of its law enforcement agencies, including ATF, DEA, the FBI, the Marshals Service, and the Bureau of Prisons, will be barred from using chokeholds and carotid restraints, except in situations where lethal force would be authorized, which it defined as “when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or another person.”

Regarding “no-knock” entries, DOJ generally limited such entries to situations where an agent “has reasonable grounds to believe that knocking and announcing the agent’s presence would create an imminent threat of physical violence to the agent and/or another person.”  Details can be found here.

3. Body-Worn Cameras

Finally, after many years of foot-dragging, DOJ is embracing body-worn cameras for its agents. It always seemed rather bizarre that DOJ was resisting BWCs for its agents. Way back in 2014, the COPS Office asked PERF to develop guidelines for implementing a BWC program. But DOJ was steadfastly opposed to allowing its own agents to use this important tool for building trust and accountability.

DOJ was so adamant in its opposition that for years, it did not allow local police officers to wear BWCs when they were working with federal task forces.  That resulted in some local agencies discontinuing their involvement in task forces. In 2019, then-Atlanta Police Chief Erika Shields pulled her officers out of joint task forces with the FBI, Marshals Service, and DEA after being told that they couldn’t wear BWCs in joint operations. And in St. Paul, officers were kicked off of a Marshals Service task force when they insisted on wearing their cameras, on orders from Chief Todd Axtell.

Last October, then-Attorney General William Barr relaxed that ban somewhat, but said that any BWC recordings made by local police would be considered federal records, and thus could be designated privileged and unavailable to the public. So that was a weak reform.

All of that is out the window now. On June 7, Deputy Attorney General Lisa Monaco announced that she was ordering federal investigative agencies to develop their own policies requiring agents to wear and activate BWCs during certain events, including serving pre-planned arrest warrants and apprehension of fugitives.  And on September 1, DOJ announced that ATF agents in Phoenix and Detroit had begun using BWCs, and other DOJ agencies would begin launching their programs within several weeks.

So DOJ went from announcing plans to develop a BWC program to actually using them in less than three months. That may be a new record for fast action by a federal department!

What Does All This Mean?

What this tells me is that the whole approach of this Justice Department is philosophically different from any other I have seen in years. You get this sense of leveling the playing field, of working with local police as equals, and correcting issues that have festered for years. We may have our differences on certain issues, but for me this Attorney General and his staff got more done in one week than I have seen accomplished in years.

Have a great weekend.