Policing the Police

A Justice Department veteran talks about consent decrees—the police monitoring tool the Trump Administration has given up on.

By Christy Lopez

Tagged criminal justiceDepartment of JusticeDiscriminationpoliceRacism

One effective tool in curtailing police abuse has been Department of Justice consent decrees. Created in the (infamous, in some quarters) crime bill of 1994, consent decrees give the federal government a way to monitor police behavior. They have been used to attempt to correct cases of broad police misconduct in cities from Chicago to Newark to Seattle to Ferguson, Missouri after the Michael Brown shooting and many other places.

Interestingly, according to a 2015 Frontline report, the George W. Bush administration entered into about as many consent decrees as the Clinton and Obama Administrations, although it “shied away from forcing reforms, preferring a more collaborative approach” with departments. The Trump Administration, however, has abandoned consent decrees, a policy announced by Jefferson Sessions just before he was fired as attorney general.

Christy Lopez, currently a professor at Georgetown Law School and co-director of the school’s Innovative Policing Program, worked on consent decrees in both the Clinton and Obama Justice departments. Editor Michael Tomasky spoke with her on June 8 about how consent decrees worked and what they had accomplished, as well as her thoughts on recent developments like the continuing protests and the Minneapolis City Council’s move to “dismantle” the police force.

Michael Tomasky: You worked in the Obama Justice Department on police consent decrees. Tell readers what those are.

Christy Lopez: Well, it’s actually kind of a tricky question. So a consent decree is a settlement agreement that is really a set of reforms that we would require a law enforcement agency to undertake. It is different than other types of settlement agreements, because it is entered as a court order and overseen by a federal judge. We use consent decrees as remedial plans where we had conducted a “pattern or practice” investigation of a law enforcement agency and found that they were violating people’s right constitutional rights due to systemic deficiencies in how they were policing.

MT: And you worked in what division in the Justice Department.

CL: I was in the Civil Rights Division, in the section called the Special Litigation.

MT: From what year to what year?

CL: I worked there initially from 1995 to 2000. Then I came back in 2010, and I was a deputy chief. Then we created something at that time called the Police Practices Group. And I did that essentially until 2017, when I left to teach at Georgetown.

MT: So tell people a bit about the process of obtaining consent decrees. It begins with when some information is brought to the department’s attention by members of the public in some city or area, or how?

CL: Well, it’s actually interesting because unlike a lot of civil rights offices, it’s not a complaint-driven process. It neither requires a complaint for us to begin an investigation, nor are we required to investigate everything. So that gives us a lot of latitude to try to determine how best to use our enforcement resources.

So cases would come to our attention. For example, the Newark case came to our attention because the ACLU, which put together, I don’t know, hundreds of complaints in the form of a petition and sent it to us to tell us what was going on there. Many other incidents, especially from about 2014 on, came to our attention because of really tragic high-profile incidents and the public response to that. We would often learn about a particular jurisdiction through those events. And then we would conduct what we would call a preliminary inquiry. And through that inquiry, we would determine whether that terrible incident appeared to be related to a set of more systemic deficiencies that could indicate a pattern or practice of misconduct. If that were the case, then we would consider opening up an actual pattern or practice investigation. And one of the biggest hindrances to opening up an investigation was simply resources.

MT: How many lawyers were in this group?

CL: I think at our height, I believe there were about between 20 and 25 attorneys, supplemented with a number of investigators, paralegals, and community outreach specialists.

MT: How many investigators?

CL: Not many, a handful. I can’t remember exactly how many. A small handful.

MT: So walk readers through a process. Choose one consent decree that you worked on that was in some sense representative of the kind of work you did for seven years and and tell people how it worked.

CL: Every city is different. Every consent decree was different. But I will try to give you the most generic narrative possible so you can get the best picture of how it works generally. Um, so we would open up an investigation based on a preliminary inquiry that indicated that there may be a pattern or practice of misconduct. Our investigation was focused on two things. First, of course, determining whether there were in fact systemic violations of people’s constitutional statutory rights. But secondly, and as important, was the question of why—what were the systemic deficiencies that were causing this pattern of violations, because you need to understand those systems if you are going to correct the pattern of misconduct. And it’s very easy and dangerous to think that what was happening in the last department is the same thing that is happening in this department.

And it is of course true that there are many similarities and commonalities, but every department is different. We need to really try to understand that department. That’s very challenging as a federal attorney and set of investigators parachuting in to learn a whole new community. And one of the things that we would try to do was to really try to connect with and learn from local communities, for a number of reasons, um, both because they helped us learn what the particular problems in the city were, but also because it became increasingly clear that part of what the consent decrees had to do to have the biggest impact on improving policing was to create the space and the momentum for those communities to be active and effective during the course of the consent decree.

So we really tried to learn what their capacity was, what their interests were, what the entire community needed from its police department. So we would conduct exhausting investigations, which were much more than just the incident review and working with our police experts and going on ride alongs. They increasingly involved that community component, and we tried to learn everything we could about the nature of the pattern of misconduct. And whether in fact there was one. At the end of that, we would draft and release a findings report, which I believe was a really essential part of our work there. I believed it had an intrinsic value and of itself, to put out in public the findings of what your government had found using your tax dollars to investigate your police agency. I think there was tremendous value in that.

MT: So you worked on Ferguson. Talk a little bit about that. That was obviously a very high profile, confrontational situation.

CL: Yeah. So Ferguson was interesting in a number of respects. One, it was, I’ve referred to it as an acute crisis. Things were burning. We were trying to address this more chronic crisis in the middle of an acute crisis. And everybody in DoJ was interested in our work, and they were hoping that our work would help calm things down. I was never under the illusion that it would. And part of my work was, trying to get more space to do our work without the expectation of that pressure on my team.

One of the things that was really interesting about Ferguson was the really explicit racism, but unrecognized racism among the police department and many people in the community there. The double standards and the stereotyping, and I think we try to capture a lot of that in our report, was what allowed them to use fines and fees in such an abusive manner. It’s what allowed them to believe it was okay and justify that to themselves. So I found that really chilling. I found remarkable, and I was so much chagrined that we didn’t know about it earlier, that this whole policing for revenue was such a problem. And it was clear, it was a problem in places other than Ferguson. So that was a revelation and quite disturbing.

MT: Just define quickly policing for revenue.

CL: Policing for revenue is when a police department enforces laws or sometimes it owes its existence to a desire by that community to raise money from citations rather than being motivated by public safety. For example, in Ferguson and in St. Louis County, there are roughly 90 small communities and about 50 police departments. In many of these small communities there are just 2,000 or 3,000 people, but they would have a police department of 12, 13, 14 people, sometimes larger, which is extraordinarily out of proportion. You would drive through these tiny towns and you’d see these massive police departments. In Ferguson itself, they had just built a brand new police department and fire station. And when you looked at what was happening, you saw that they had extraordinarily high fines for really ridiculous things, high grass and weeds, for example.

And they would make it very difficult for people to pay off those fines. We told some of those stories in our Ferguson report. People get trapped in a cycle of constantly owing fines and penalties on the fines. And they were literally raking in millions from poor people. It had a negative impact on public safety, and it was literally ruining people’s lives and livelihoods. And that was really horrifying to see; to see how prevalent it was, how out in the open it was, and what a lack of concern there was that it was happening. And then there was seeing the undercurrent of a desire to enforce a racial social order from the days of yore. It’s really surprising to me the stereotypes that people are still holding, about the way that black people need to be policed in order to make them act right. And that was sometimes said in a subtle way but oftentimes in a not so subtle way. I was just very shocked that people actually believe this to be true and that they were so comfortable being open about it.

MT: And what has your experience taught you about how pervasive that attitude is in police departments around the country?

CL: I do think it’s more pervasive in some departments than others. I do think there’s lots of institutionalized structural racism that doesn’t require anybody to feel a certain way, but I am talking about something different. This was quite explicit. And it was much more prevalent there than I had seen in the past. It did open my eyes and I did become more sensitized to it and saw that it was present in other places across the country. And of course this was before the election of Trump, where I think a lot of Americans realized that some of these sentiments were more prevalent than we had believed. I went from investigating Ferguson to the Chicago Police Department. And what was interesting to me there was that here was a department that in many ways was quite opposite—it was part of the North, it was exponentially larger—but it had many of the same explicitly racist threads running through it.

MT: When you spoke to police officers and captains and so forth, was there just uniform lack of cooperation, or was it more complex and nuanced than that?

CL: Ferguson was probably the most uniform resistance we got in my experience. In most places there are people who are more than happy to cooperate with you. There are people who have been waiting for you to show up. One unit in the Chicago Police Department told us they popped the champagne when they heard we were coming. There’s always, in my experience, with the exception of Ferguson and maybe one or two small departments, a number of people who have been waiting for someone to support them in changing their police department.

MT: That’s interesting. How can that feeling from those cops who want reform become more widespread? Because the blue wall of silence is pretty thick, and it’s pretty tough to overcome.

CL: I’ve been working on exactly that issue quite a lot. And it’s a lot of what we are trying to do with our Police for Tomorrow program and what I’m trying to do through other programs with the Innovative Policing Project, because I do think it’s key. I think one of the things that you can do is tell officers that it’s not only okay, but it’s important and required that they learn about the communities they’re serving and that they think critically about why they’re doing what they’re doing every day and that they speak up if they’re doing things that don’t make sense. We work with these Police for Tomorrow fellows who are new to the agency. They’re just coming in and we try to set those expectations in them. And we have workshops, for example, on things like alternatives to arrest.

We really encourage them to think about: Why do we have police even respond to these calls, much less arrest someone rather than cite them? What do you think your role should be? And really try to think radically about what the police role should be. That doesn’t mean they’re all going to resign the next day. Frankly I don’t think that would be a good thing because we think those voices are important because they have credibility and insight, and we want them to be voices from within departments that the need for police departments to dramatically change.

MT: So in, in this light, I should certainly ask you about what the Minneapolis city council voted just yesterday.

CL: I don’t know if you saw the Op-Ed that I had in the Post this morning (“Defund the Police? Here’s What That Really Means,” The Washington Post, June 7, 2020). It’s my take on what the term “defund the police” seems to mean and what “police abolition” seems to mean. I think what Minneapolis is doing is very interesting, and I just saw a clarification from one of the council people on Twitter. He said what to me was very clear from this. No one is disbanding the police tomorrow. What they are doing is they are reimagining what their police is going to look like, what their public safety is going to look like,and recognizing that public safety is about much more than law enforcement. It’s about much more than policing. And that is exactly the place we need to be. We need to be thinking about that.

I think it’s great what they’re thinking about doing. It’s going to scare a lot of people, unnecessarily, and I think it’s going to be hard and it’s going to take some work and it’s going take some time. It’s not going to come nearly fast enough and it won’t go as far as many activists would like it to go, and it’s going to be absolutely terrifying to a lot of people at the opposite end of the spectrum, but it’s exactly where police departments and where cities in this country should be. These are the conversations we should be having all across the country.

It’s about much more than policing. And that is exactly the place we need to be. We need to be thinking about that. I think it’s great, what they’re thinking about doing. I think it’s going to scare a lot of people, unnecessarily, and I think it’s going to be hard and it’s going to take some work and it’s going to take some time. It’s not going to come nearly fast enough and not go as far as many activists would like to go, and it’s going to be absolutely terrifying to a lot of people at the opposite end of the spectrum, but it’s exactly where police departments and where cities in this country should be. These are the conversations we should be having all across the country,

MT: Let’s return to the consent decrees. Tell our readers what results they produced. Did they work well?

CL: It’s very difficult to assess the impact of a consent decree for a number of reasons. First, social science is difficult anyway. Secondly, consent decrees consist of hundreds of interventions, and thirdly, they’re happening at the same time as a lot of other changes over a long time period. So they’re happening maybe over five or 10 years. The initiation of a consent decree often coincides with a new chief or a new mayor or a new city council. There may be economic downturns during the course of the consent decree. So it’s very hard to know whether any changes you see in policing or in crime are because of, or in spite of, or unrelated to, a consent decree. People have tried to study it, and we’ve seen a few trends over time.

There have been studies that show that lawsuits go down during the course of consent decrees, there have been studies that show that crime does not go up during consent decrees. There are correlations of crime staying the same or dropping during consent decrees. And everywhere where they’ve done surveys shows the confidence in policing by the public in going up during a consent decree. The ones that assess it show officers have higher morale in their police departments. So those are all very encouraging.

But there are many people in social science who would like a bit harder science. And we’re still figuring out: how do you collect the data and design the kinds of methodologies that would allow us to make a really robust analysis? People have tried. I can’t tell you the number of researchers I’ve talked to who say, “I figured it out. I know how to do this.” I’m like, okay… And they come in, they start figuring out how they’re going to conduct their research, and they quickly realize, “Oh, this is really complicated. This is more difficult than I thought.”

MT: Lastly, I’m interested in your assessment of this ongoing movement. What kind of impact do you think it’s going to have on our society?

CL: It’s been really interesting to watch, and heartening in many respects. I think it’s lasted so long for a few reasons. One, coming in the middle of this pandemic, and people seeing the disproportionate toll that COVID-19 is taking on black people and Latinx people has really opened a lot of people’s eyes, not just people of color, but also white people, to help them understand that some of these dynamics are really baked into our systems. Then you see what happened to George Floyd, and you can see that it’s throughout the United States in all of our systems. So part of it was the backdrop of COVID. The other part of it was that, yes, people were protesting what happened to George Floyd in Minneapolis, but many people were also protesting their own experiences with their own police departments in their own communities.

And I think it’s really critical to recognize police will sometimes complain that they take the blame for something that happened a thousand miles away. And there’s some truth to that, but it is also true that people are capable of discerning between what they see on their cell phone screens and what they’ve experienced in their own lives. And that’s what’s playing out. The third part, frankly, is the response. The response from President Trump, and the response from some local law enforcement really infuriated people. I know I’ve talked to many people, and you’ve seen reports of people saying, “I came out here today because of what the police did yesterday or the President said yesterday.” I think that’s one of the reasons that they can and should continue.

Thank you.

Read more about criminal justiceDepartment of JusticeDiscriminationpoliceRacism

Christy Lopez is a professor at Georgetown Law School and a co-director of the school’s Innovative Policing Program. Between 2010 and 2017, she served as Deputy Chief in the Special Litigation Section of the Civil Rights Division at the U.S. Department of Justice.

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