Rethinking consent decrees

As president and CEO of the Minneapolis Downtown Council, Steve Cramer hopes to foster a welcoming environment in his city’s downtown. The council works closely with the Minneapolis Police Department to maintain public order and prevent crime. “Our perspective is that law enforcement and policing [are] absolutely essential,” he said.

Cramer, also a former city council member, helped organize an independent political action committee, All of Mpls, to defeat a city charter amendment to defund the police in 2021. “There’s been a lot of division and conflict around the role of the police department in the aftermath of the murder of George Floyd,” he said. “There still is a strong sentiment in the community that the police department is kind of a negative force.”

Last month, the U.S. Department of Justice released a report summarizing the results of an investigation launched in response to Floyd’s death. It concluded the Minneapolis Police Department has a serious problem—officers use excessive force and discriminate against black people, Native Americans, and disabled people.

“It hit hard, and I think it did have an impact on morale,” Cramer said of the Justice Department and its report.

The report recommended federal oversight through an independent monitor until the department can check enough boxes to prove it is making changes. Minneapolis will likely negotiate the terms of the agreement, called a consent decree, with the federal government in the coming weeks.

The city will join 14 other police departments operating under consent decrees in major jurisdictions, including Chicago, Baltimore, Newark, N.J., and Los Angeles County. Federal judges enforce the decrees, which act as blueprints for how departments should correct unconstitutional police behavior. Often, federal officials hire a third-party monitor to oversee implementation of the decree.

While many criminal justice reformers champion consent decrees as the solution to racism or violence in policing, others are beginning to wonder if the decrees hurt the communities they’re intended to help.

Seattle public defender Lisa Daugaard, along with the Public Defender Association, documented patterns of racial discrimination in drug enforcement in the city. In 2011, she partnered with the Seattle Police Department and the King County Sheriff’s Office to create a program for people convicted of drug-related crimes that sends offenders to rehab instead of prison.

Daugaard sued the department in the past, but she said the voluntary nature of this partnership made all the difference. “Law enforcement departments have to be co-authors of this change,” she said.

In 2012, Daugaard wasn’t sure what to think when the Seattle Police Department received a consent decree after a Justice Department investigation identified a pattern of using excessive force. Her skepticism grew with every passing year as the decree dragged on. While serving as a commissioner with the Seattle Community Police Commission, Daugaard urged the Justice Department to review the changes the department had already made.

She said the Justice Department didn’t consider the years of data she and her team had collected on racial disparity in drug enforcement or listen to their suggestions about how to improve the department.

“To not be treated as real partners, was super disempowering and also counterproductive,” she said. “It’s being driven by experts who … won’t be here to live with the results.”

More than 10 years after the Seattle Police Department entered into a consent decree, it’s still in place. In late March, the Justice Department filed to end the decree if the department continues to track its progress in two categories. If the federal judge in Washington state approves the request, the department will be one of few that have successfully completed their decrees.

In California, the Oakland Police Department has come close to finishing its 20-year consent decree several times and tried again earlier this year. But scandal after scandal has kept it in place. A federal monitor questioned Chief LeRonne Armstrong’s response to a sergeant’s misconduct in January. The mayor fired Armstrong one month later, just as the city was once again gearing up for a federal monitor’s oversight to end.

“Every time we are about to come out from underneath his contract, suddenly there is a bombshell,” former Oakland city councilmember Lynette Gibson McElhaney told local reporters. McElhaney claimed that the federal monitor being paid to oversee the department has no incentive to end the consent decree.

Daugaard said this conflict of interest, what she calls the “police accountability industrial complex,” isn’t unique to Oakland. A judge finally ended federal oversight of the Hartford Police Department in Connecticut this April, nearly 50 years after it began in 1973.

Peter Moskos, a professor of law and police science at John Jay College of Criminal Justice and a former officer, agrees that federal overseers and third-party monitors have an incentive to hold onto their jobs. He noted that consent decrees fail to address a key community concern: crime. Lowering violent crime isn’t one of the hundreds of boxes departments are required to check when under a consent decree even though crime prevention is a police department’s primary responsibility. “Murders have nearly tripled in some of these cities,” he said.

Chicago began operating under federal oversight in 2019. Murders spiked by more than 50 percent the following year, aggravated by civil unrest and the COVID-19 pandemic. The city witnessed a small uptick in homicides in 2021. Though homicides declined slightly in 2022, the year’s total still made it the fourth deadliest since 1999. Baltimore continues to tally more than 300 murders per year despite having federal oversight since 2017.

“The consent decree needs to be concerned about crime,” Moskos said. “It can’t just be concerned about everything else.” The Los Angeles Police Department consent decree, which lasted over a decade, required police to implement supervisory measures to ensure their officers respect civil rights. It directed the department to create new critical incident procedures and investigation protocols and improve its documentation. The decree also focused on managing gang units, performing integrity audits, and improving community outreach.

And ongoing federal oversight isn’t cheap. Nearly nine years under a consent decree has cost Albuquerque, N.M., $25 million, and critics say the police department hasn’t changed much. “[Consent decrees] cost a fortune,” said Dorothy Moses Schulz, a Manhattan Institute adjunct fellow and retired police captain. She pointed to Cleveland’s consent decree that began in 2015 and so far has cost the city $60 million to implement new programs, train officers, and purchase new equipment.

Oversight and accountability are important, Daugaard said, but she’s willing to take her chances with local politics. “Do we work on it for years and get not very far? Yes. Is that discouraging? Yes,” she said. “Is it understandable that people want there to be an outside cowboy that you can call to ride in and fix everything? Yes.” But she argued that the Justice Department’s Civil Rights Division isn’t that cowboy. Instead, community stakeholders need to develop the ability to make changes themselves and build partnerships with their local police departments.

In March, before the Justice Department released its latest report, Minneapolis entered into a separate consent decree with the Minnesota Department of Human Rights. “That structure holds more promise,” Daugaard said. Residents should hold their local leaders responsible for the conduct of their police department, she said. Federal oversight can let local elected officials off the hook.

Back in downtown Minneapolis, Cramer called recruiting and rebuilding the police department “absolutely essential” since he estimates it’s about 300 officers down from its authorized strength. But he said it’s the culture of the department and the attitude of individual officers that matters most in the end. “I hope the consent decree will help move us in that direction,” he said.