Attorney General, Merrick Garland on Friday, Rescinded a Trump-era Near-Ban on the Justice Department’s use of Consent Decrees to Force the Restructuring of Local Law Enforcement Agencies, signaling a push from the Biden Administration to Resume use of the Tactic amid a continued Outcry from Liberal Groups about Abusive Policing.
A Consent Decree is an Agreement or Settlement that Resolves a Dispute between Two Parties without Admission of Guilt in a Criminal Case or Liability in a Civil Case, and most often refers to such a Type of Settlement in the U.S.
In a Four-page Memo to Department of Justice (DOJ) Staffers, Garland said he would Rescind the 2018 Order from then-Attorney General, Jeff Sessions, that aimed to Drastically Limit the Use of the Settlement Agreements with Llocal Police Agencies. Under Garland’s Memo, DOJ Lawyers who are Leading the Litigation, including the Assistant Attorneys General or U.S. Attorneys, will be Authorized to Approve the Consent Decrees. “It is done so because they are the Department officials most familiar with and best able to assess each particular case,” Garland wrote.
The move comes amid the High-Profile Trial of Derek Chauvin, a former Minneapolis Police Officer who is facing Charges of Murder and Manslaughter in the Case of George Floyd, a Black man who died while being Arrested in May 2020. Chauvin pinned Floyd to the Ground for more than Nine Minutes with a Knee on his Neck.
Mass Protests ensued in Cities across the Country, led by the Black Lives Matter Movement, which has pushed to “defund the police.” Garland and several of his potential Deputies, who await Senate approval of their Nominations, have promised to Renew the Focus on curbing Abusive Policing, although they have stopped short of supporting the Idea of Defunding Police Departments.
The DOJ can use Consent Decrees with Local Jurisdictions to Avoid Litigation on Matters including: Policing; Education; Fair Housing; Sexual Harassment; Discrimination in the Workplace; and Voting Rights. In some Cases, a Monitor is Appointed to Oversee Compliance, and the Agreements typically allow for federal Enforcement if the Terms are Breached by Localities.
During the Obama Administration, the DOJ entered into Consent Decrees 15 times with Local Police Agencies including: Ferguson, Mo; Baltimore; Cleveland; and New Orleans. The George W. Bush Administration used Consent Decrees Three times.
But Sessions sought to Severely Restrict their use, saying they Harm Morale in Police Departments. He issued his Order in One of his Final Acts in Office before being Fired by Trump. The Trump Administration did Not enter into a Single Consent Decree in its Four years, and it moved to undermine Existing Agreements, including pulling out of a Pact the DOJ had been on the verge of signing with Chicago Police in 2017. “It is not the responsibility of the federal government to manage nonfederal law enforcement agencies,” Sessions wrote.
Jonathan Smith, who Oversaw the Special Litigation Section of the DOJ’s Civil Rights Division in the Obama Administration, called Garland’s action a “tremendous step forward” and said Consent Decrees helped Improve troubled Police Departments. Yet he acknowledged Limits to the Department’s Powers to Force Sweeping Cultural Reforms. “In order to fix these departments, you don’t just need a few new policies. You need sustained compliance over a long period of time, and consent decrees are the only thing that can do that,” said Smith.
Smith is now Executive Director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. “But the one thing you have to remember is that a consent decree is designed for a very specific purpose: to make police departments comply with the Constitution and the law,” Smith said. “There are a lot of things the Constitution permits the police to do that the community might not want them to do. Consent decrees do not get to that.”
Critics of Consent Decrees, including some Police Union Leaders, have cited a Rise in Crimes in some Cities. But Studies have shown that such Increases are Temporary. A Review of such Agreements by Researchers at the University of Texas at Dallas, found that the Number of Civil Rights Lawsuits Decreased in some Jurisdictions operating under such Agreements.
Community Activists have expressed Frustration over what they say is the Agreements’ Failure to do more to Rein in Abusive Officers. In Seattle, the Police Department entered into a Consent Agreement with the DOJ in 2012 after a Federal Investigation determined that Seattle Officers had frequently used Excessive Force with few Consequences. More than Eight years later, the Department is still Operating under Federal Oversight, despite Initially having been found to be in Compliance with the Agreement in 2018.
Community Activist, Kevin Schofield, wrote last summer that the Seattle Police Department has made Significant Progress in Reducing its Officers’ use of Force. But he said that Force continues to be used at Disproportionately Higher Levels against Racial Minorities, particularly African Americans. “While a lot of good came out of the reforms driven by the consent decree, the underlying problems have not been exorcised; many have simply been papered over with bureaucracy,” he wrote. “The consent decree didn’t do what we had hoped it would do. The structural racism, biased policing practices, and overpolicing continue; we’ve just made them harder to see.”
Garland’s Incoming Leadership Team appears poised to Quickly resume the use of the Agreements. Vanita Gupta, whom President Biden Nominated to Oversee the Civil Division as Associate Attorney General, sharply Criticized the Trump Administration as having “completely gutted” Police Reform Efforts. Gupta, who is awaiting Senate Confirmation, helped Negotiate several Consent Decrees while Serving as Acting Director of the Department’s Civil Rights Division during the Obama Administration.
In an Interview last year, Gupta said: “The consent decrees are not perfect, because there is no perfect mechanism for the kind of change that’s required. But they’re the best thing that exists.”
Similarly, Kristen Clarke, who is awaiting a Senate Vote to Run the Department’s Civil Rights Division, slammed Sessions for seeking to Ban Consent Decrees. At the time of his Order, she was serving as President of the Lawyers’ Committee for Civil Rights Under Law and Issued a Statement arguing that such Agreements “serve as an important tool for resolving conflicts without subjecting the parties to long, protracted and costly litigation.”
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