This summer marks nearly three years not only since the deaths of Eric Garner in Staten Island, New York, and Michael Brown in Ferguson, Missouri, but also since a major transformation began in the American criminal justice system. Police departments are increasingly implementing training regimens to combat racial bias and requiring officers to wear body cameras, with some 95 committing to do so in the future in January of 2016; district attorneys are increasingly prosecuting police officers responsible for fatal shootings; and the American public seems increasingly amenable to reforming the way in which law enforcement agencies serve and protect taxpayers.
But that rising tide of progress may have been in vain. In a two-page memo published Monday, Attorney General Jeff Sessions directed the Department of Justice (DOJ) to “review reform agreements with troubled police forces nationwide,” the Washington Postreported, as part of a broader review of the department’s “collaborative investigations and prosecutions, grant making, technical assistance and training, compliance reviews, existing and contemplated consent decrees, and task for participation.”
While Sessions’ memo is a general reminder that he’s deciding which Barack Obama-era reforms at the DOJ to roll back first — just last week, the DOJ announced it would no longer give department grants to sanctuary cities — it’s the line about consent decrees that matters most. This measure would effectively negate the spate of reforms implemented by the DOJ’s civil rights division in the waning years of the Obama administration, making years of federal investigations into discrimination and civil rights violations in cities like Ferguson, Cleveland, Baltimore, and Chicago effectively a wash.
Sessions knows exactly what he’s doing. “The Department is working to ensure that those initiatives effectively dovetail with robust enforcement of federal laws designed to preserve and protect civil rights,” DOJ spokesman Ian Prior said in a statement on Monday. “While this memo includes the review of any pending consent decrees, the Attorney General also recognizes the Department’s important role helping communities and police departments achieve these goals.”
This is unsurprising, and not simply because of Sessions’ record on civil rights during his time as Alabama attorney general. During his confirmation hearing before the Senate, Sessions had expressed consternation over the use of consent decrees by the DOJ to address a “pattern or practice” of systemic discrimination and bias in local police departments.
“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 said, per CNN. “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.”
Since becoming the nation’s top law enforcement official, Sessions’ approach to police reform has quickly become policy. In February, he ordered the DOJ to limit its use of lawsuits against local police departments that violate the civil rights of minorities. The Obama administration, as Pacific Standard’s Elena Gooraypointed out, had opened 25 investigations and was enforcing 19 agreements at the close of 2016. Monday’s memo essentially freezes 14 of those agreements through a pause on “existing and contemplated consent decrees.”
Civil rights groups are not happy to say the least. “This is terrifying,” Jonathan Smith, executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, told the Post. “This raises the question of whether, under the current attorney general, the Department of Justice is going to walk away from its obligation to ensure that law enforcement across the country is following the Constitution.”
But it’s not just a question of ensuring that the civil rights of every American are respected, but, as Radley Balko points out in the Post, giving previously marginalized groups a vehicle by which to actively shape the justice system they live under. From the Post:
Often, the most important part of a consent decree isn’t the decree itself but the investigation and report that lead to it. The Justice Department reports on police abuse in Chicago, Baltimore, Ferguson and Cleveland weren’t just damning and outrageous, they gave voice to what minority communities in those cities have been saying for years. They created a record. They legitimized the abuses of marginalized people who never had the platform to be heard. These are also official, federal government publications that local activists and public officials can cite to spur reform. The Justice Department report on Ferguson has been instrumental in informing the reforms there, not just through the consent decree but also through state legislation, local ordinances and other lawsuits brought on behalf of the people harmed by government abuse in St. Louis County.
This is particularly startling when taken with the other important implication of Sessions’ two-page memo: that the attorney general’s two chief deputies are, as part of the review, tasked with examining the DOJ’s activities to ensure the department is “help[ing] promote officer safety, officer morale, and public respect for their work.” Keep in mind that, in February, President Donald Trump issued an executive order directing his administration to not just pursue new protections for state, local, and federal police officers, but also to “define new federal crimes, and increase penalties for existing federal crimes,” essentially making agents of the state a special, protected class in the eyes of federal law enforcement—in other words, making “Blue Lives Matter” a staple of domestic policy.
Sessions’ DOJ is elevating the protections and power of law enforcement officials over the very people it’s supposedly obligated to serve and protect. The momentum toward substantive criminal justice reform in the years since Brown and Garner died may wind up a once-in-a-generation flash in the pan of reform.