There’s a New Justice Department in Town, and It’s Out To Enforce Changes to Police Practices
It starts with the Minneapolis Police Department
Over the final two years of the prior administration, the Justice Department, presumably at the instruction of the White House, had weakened the federal government’s ability to enter into and enforce “consent decrees” with state and local police forces. A Justice Department memo, written by then-Attorney General Jeff Sessions right before he resigned in November of 2018, stated that any decrees must be approved by senior leadership. This effectively put new agreements on ice. Other provisions of the memo elevated the rights and authority of state and local actors, making it far harder for the Department of Justice to take action by narrowing the types of conduct that could be investigated and halted. (President Obama’s DoJ had been vigorous in the enforcement of federal laws through the use of consent decrees, and his successor apparently was eager to put an end to that.)
Consent decrees are a kind of settlement agreement, signed off on by a court, that are used to resolve violations of the law or systemic misconduct discovered during federal investigations of state or local law enforcement agencies. A good example is one signed between the police department of Ferguson, Missouri and the Justice Department, entered into after a wide-ranging investigation in the wake of the fatal shooting of Michael Brown in 2014. That investigation found that there was “an alleged pattern or practice of unlawful misconduct” and, after a year of inquiry, that “a number of patterns or practices of unconstitutional conduct” existed. The department agreed to make comprehensive changes to its policies and practices, including use of force; stops, searches, seizures and arrests; bias-free policing; community policing; and recruitment, to name a few.
In a strong signal that Justice will get back into enforcement mode, Attorney General Merrick Garland rescinded Sessions’s memo last week and this week announced a Justice Department investigation covering Minneapolis’s police force. In that city, studies have found a large disparity of treatment by police depending on race. Specifically, force is used by the police against Black residents at a rate seven times that of white residents, according to a study by the city reported on by the New York Times last year.
Attorney General Garland waited to make the announcement until after the verdict in the Derek Chauvin case was rendered. The move signals a new and proactive Justice Department stance toward allegations of widespread unlawful or discriminatory practices within law enforcement and is likely to be just the first of many. The effort in Minneapolis, and likely many other jurisdictions, will be headed up by the Civil Rights division of the Department, which will be led by Kristen Clarke if she is confirmed by the Senate.
The announcement thus ups the stakes considerably for Clarke’s nomination. She is a seasoned civil rights advocate who has led the Lawyer’s Committee for Civil Rights Under Law (an organization I had the pleasure of working with while I was a litigator in San Francisco) and has built an impressive career as a line attorney at Justice. Expect a near-party line vote to confirm her soon, with GOP presidential hopefuls eager to show their disdain and disapproval.
Garland has been careful to describe the investigation as a win-win, even for law enforcement. “Most of our nation’s law enforcement officers do their difficult jobs honorably and lawfully,” Mr. Garland said. “I strongly believe that good officers do not want to work in systems that allow bad practices.” That said, Garland acknowledged that the challenges in addressing systemic racial inequities “are deeply woven into our history,” adding that it would take time and effort by all to build “trust between community and law enforcement.”
Authorities in Minneapolis seem to understand that it’s best to accept the oversight and to cooperate in a mutual effort to reform. The Star Tribune reported that the investigation was welcomed by 12 City Council members (with only one dissenter) as well as by Mayor Jacob Frey and the police chief. “Police Chief Medaria Arradondo has pledged to cooperate fully,” according to a statement from the police department. “The Chief has been insistent that he wants to make the MPD the best department possible.”