More About Consent Decrees

 

Unknown-1 Are consent decrees the way forward for police?

[I have to admit that I have strong reservations about relying on Consent Decrees to save our nation’s police. I have a strong belief that it is the responsibility of police leaders to make things happen, timageso improve things continuously, and to move their organizations forward. Yet, on the other hand, for those cities under Consent Decrees; albeit contentiously crafted and received, they seem to have made some improvement in police operations. Time will tell how future improvements, and the recommendations of the 21st Century Task Force on Policing, will happen; whether it will be from federal, state, or local action or simply because we all will come to the understanding that it simply is the right thing to do.]

SO FAR, SOME OVERALL LEARNING:

1. Permanent reform and change takes time; possibly more than a decade.

2. Consent Decrees are usually only entered into after a police department has a pattern or practice of civil rights (Constitutional) violations. Consent Decrees are not usually used to improve a poor police department whose practices do not result in civil rights violations.

3. Consent Decrees may be the most effective change tool for cities and their police departments because they are legal instruments and have the power of the Federal Court to require continuing improvement through political changes; such as new mayors or police chiefs.

4. Consent Decrees have the power to levy significant economic levy sanctions for non-compliance upon cities which are slow to cooperate or resist recommended changes.

5. Police and their unions will initially be against the changes and will tend to resist them.

6. In Cincinnati, the Consent Decree was unique because it mandated a specific style of policing: Community Problem-Oriented Policing (CPOP). This had not been done in the past.

7. Consent Decrees have generally focused on police use of force but also management and supervision of officers; unlawful stops, searches, arrests; and racial or ethnic bias; investigation of sexual assaults, and interactions with the mentally ill.

8. For a Consent Decree to be successful in the long run, it must win allies in the police department (both from management and the union) and in the community.

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ADDITIONAL RESOURCES AND INFORMATION

 


 

MORE LESSONS LEARNED:

FEDERAL CIVIL RIGHTS INVESTIGATIONS OF LOCAL POLICE

The following points summarizes the Police Executive Research Forum (PERF) report on civil rights investigations of police:

  • The role of the Department of Justice (DOJ) is limited to investigating patterns of misconduct: The Special Litigation Section does NOT investigate individual incidents. Its mission is to investigate police agency policies that violate the Constitution, or multiple incidents that amount to a “pattern or practice” of conduct that deprives people of their Constitutional rights.
  • Key Issues: Many of the DOJ investigations to date have focused on certain key issues, including:

Police use of force;

     — Early Intervention Systems; management and supervision of officers;

     — Unlawful stops, searches, and arrests; and racial or ethnic bias in policing.

     — The investigation of sexual assaults, and on police interactions with persons with mental illness.

  • Use of force: A review of consent decree documents shows that DOJ typically requires use-of-force policies to include certain elements, including the following:

      — Clearly identified types and levels of force.

     — Clearly described consequences for unreasonable uses of force.

     — Policies, procedures, and training specific to certain weapons or types of        force, such as firearms, Electronic Control Weapons, and vehicle pursuits.

     — Requirements for certification of officers in use of certain types of force; de-escalation techniques; reporting, documentation, and investigation of force incidents;

     — Supervisor response; and

     — Auditing and review of incidents.

  • Early Intervention Systems: Consent Decrees in Los Angeles, Cincinnati, Pittsburgh, Washington, D.C. and other cities have required police to implement Early Intervention Systems, which automatically flag officers who may be engaging in inappropriate behavior, or may be at risk of engaging in such behavior in the future.
  • Management and supervision of officers: Consent Decrees typically include requirements designed to ensure that officers receive adequate supervision by their superior officers.
  • Preventing biased policing: Racial or ethnic bias has long been a focus of the Civil Rights Division and its investigations of local police departments. Recent consent decrees require departments to have policies and training to prevent biased policing. (For example, the Seattle decree calls for policies stating that officers may not use race, ethnicity, or national origin in determining reasonable suspicion or probable cause, unless race, ethnicity, or national origin is used as part of a suspect’s description. In addition, these policies must prohibit officers from ignoring or condoning biased policing, and must require officers to report incidents in which they observe or are aware of other officers who have engaged in biased policing.)
  • Recent decrees also call for training that includes the following topics:

       — Constitutional and other legal requirements related to equal protection and unlawful discrimination;

        — The protection of civil rights as a central part of the police mission;

        — Cultural competency training;

        — How to identify discriminatory practices when reviewing investigatory stop data, arrest data, and use of force data; and

        — Developing positive relationships with diverse community groups.

  • Police interactions with persons with mental illness: Consent decrees in Seattle, New Orleans, Cincinnati, Los Angeles, and Portland, OR include provisions on the police response to persons with mental illness. These provisions are designed to prevent unnecessary use of force against these persons. (In Seattle, for example, the consent decree calls for specialized training, policies and protocols; training of officers in “Crisis Intervention”; and training of dispatchers to recognize calls that may involve persons in crisis with mental illness.)
  • In recent years, DOJ has expanded this focus area to include discussion of “implicit” or “unconscious” bias, by officers who are not aware of biases in their actions. (For example, the Seattle findings letter states that “biased policing is not primarily about the ill-intentioned officer, but rather the officer who engages in discriminatory practices subconsciously.”)
  • Gender bias in the handling of sexual assaults: In recent years there has been increasing atten- tion to complaints of sexual bias in the police response to sexual assault victims and the handling of sex crime investigations—for example, high rates of “unfounding” cases (essentially, a statement that the police do not believe that a crime occurred). (The recent consent decree in New Orleans requires clear and detailed policies for each stage in the response to a sex offense call; protocols for forensic examinations of victims and suspects; specialized training for detectives; supervisory review of unfounded or other com- plaints that are coded as non-criminal; creation of a Sexual Assault Response Team; and development of a system for external review of cases.)
  • Accepting the DOJ role may speed the process: When DOJ completes an investigation and finds Constitutional violations, it typically enters into negotiations with the jurisdiction to discuss strategies for achieving reforms. Agencies that have been through this process say that embracing the need for reforms from the start can help speed the process.
  • Be careful to define the terms clearly: Police chiefs also emphasize that defining the terms of any agreement with DOJ is extremely important, because a lack of specificity, or agreeing at the start to an impractical reform plan, may result in years of delay in achieving compliance.
  • Hire someone with experience in such investigations: A city entering into negotiations with DOJ may wish to bring in an official who has been through the entire process of writing and implementing a consent decree in another city.
  • The choice of a monitor is extremely important: The choice of a court-appointed monitor is very important. Some departments have had good experiences with monitors, and others have not.
  • Choose experts carefully: DOJ subject matter experts have sometimes been criticized for lacking experience in running police agencies of the type or size that they are advising, or for not keeping up with current advances in policing.
  • Defining “compliance” is difficult: DOJ consent decrees are not terminated until the agency achieves compliance with the terms of the agreement. Defining “compliance” has proved difficult, in part because certain issues, such as investigations of police use of force, do not lend themselves to evaluation on a numerical scale.
  • However, a number of consent decrees have defined compliance as showing that a given requirement is met 95 percent of the time over a period of two years. Definitions of compliance in DOJ consent decrees are evolving, according to DOJ officials.
  • The costs are often high—but the costs of failing to implement reforms can also be high: The costs of achieving compliance, and the legal costs paid to monitors, are sometimes contentious. (Some chiefs believe that consent decrees that continue for many years have been too costly, and that rules about achieving 95-percent compliance for a two-year period are overly strict. On the other hand, some chiefs say that the costs, while high, are worth it, in terms of improving police departments as well as reducing lawsuits that can also be costly.)
  • Some chiefs say that a DOJ investigation can help to overcome political opposition to reforms: Some police chiefs have welcomed or requested DOJ investigations, because a federal investigation can force otherwise-reluctant local elected officials to provide funding that is needed to implement reforms. In addition, requirements of a court-approved consent decree can overrule labor union opposition to certain changes in policies or practices.

 


 

  • The 3 Key Reform Areas: Policies, Training, and a System for Detecting Problems and Avoiding a Federal Investigation:

          (1) Adopting strong policies on key issues such as use of force;

          (2) Ensuring that officers are trained and managed so the policies will be  followed; and

          (3) Developing management and supervision measures, such as an Early Intervention System, to help managers detect and respond to problems as they develop.