//  4/26/17  //  Commentary

A federal law gives the Department of Justice authority to investigate state and local law enforcement agencies that may be violating people's rights. And, when DOJ officials find systematic violations, the Department "can act." As Chiraag Baines has pointed out on this website, that often means that DOJ will file a lawsuit against an offending law enforcement agency and enter into a so-called consent decree, which allows a federal court—often with the help of an independent monitor—to ensure that the law enforcement agency takes the steps necessary to produce reform. Over eight years, the Obama Administration entered into more than a dozen of these agreements with local agencies across the country. (On the first episode of Versus TrumpTake Care's new podcast, my co-hosts and I discussed how consent decrees work and what might happen with them in the future.)

Attorney General Sessions is expected to roll back the use of this important federal oversight function, but no one yet knows just how drastic the reversal may be. New hints are emerging, though, that he may virtually vacate the field and get the federal government entirely out of the business of attempting to reform local law enforcement agencies. That would be a real shame.

On March 31, he issued a memo directing relevant DOJ officials to "immediately review all Department activities" relating to law enforcement oversight. He followed that with a request to extend the time for a federal court to make official a proposed consent decree that the Obama DOJ had negotiated with the Baltimore Police Department. (That request was denied.) Then, in an interview earlier this month, the Attorney General said that consent decrees "can reduce morale of the police officers," lead to "crime increases," and can just generally "turn bad." These comments and actions are consistent with views he clearly has had for a long time: in a 2008 foreword he wrote to an anti-consent decree report by the Alabama Policy Institute, he called consent decrees "one of the most dangerous . . . exercises of raw power" in our system. And that was just his first sentence. It got worse from there.

His outright hostility suggests that Sessions will determine that the federal government should never use its unique authority to sue state and local police departments in order to rectify systemic civil rights violations. That would be an abdication of duty, and yet another instance of the Trump Administration's failure to take care that the laws be faithfully executed. And it would be a remarkable break from precedent, because Attorney Generals of both parties have used this important federal oversight function when justified (see Appendix B here, and a comprehensive data set here courtesy of the Marshall Project). But there are few people who have expressed more antipathy toward the practice then Attorney General Sessions, so maybe he really will go that far. As we've seen so far with the Trump Administration, pretty much anything is possible.

For more on consent decrees in the Age of Trump, check out Versus Trump, Take Care's new podcast.

Roberts’ Rules: How the Chief Justice Could Rein in Police Abuse of Power 

8/19/20  //  In-Depth Analysis

A theme of Chief Justice John Roberts’ opinions this past term is that courts should not employ open-ended balancing tests to protect fundamental constitutional rights. Yet there is one area of the Supreme Court’s constitutional jurisprudence that is rife with such amorphous balancing tests: policing. It is long past time for the Court to revisit this area of law.

Unbinding Leniency: Evaluating the Obama Clemency Initiative and Its Lessons

6/22/20  //  In-Depth Analysis

A recent article evaluates President Obama's clemency initiative and its lessons for criminal justice reform.

Take Care

Versus Trump: Easha's Back, To Talk Qualified Immunity and Police Reform

6/21/20  //  Commentary

On this week’s Versus Trump, Easha Anand makes her triumphant return to talk qualified immunity and police reform. The trio talk about the proposal to reform qualified immunity and debate whether that will do much. They then break down other new legal innovations in the various proposals and ask: is it enough to create new grounds for people to sue? Or are other reforms more important? Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP