When Seattle’s City Council voted unanimously to cut millions of dollars from its police budget amid the uproar over the murder of George Floyd, it ran into an unlikely roadblock: the federal government. U.S. District Judge James Robart ruled that the city couldn’t defund its own police department without his permission.
The judge was acting under the mandate granted him by a 2012 consent decree put in place after John T. Williams, a Native American woodcarver, was shot four times by a Seattle police officer in 2010. The killing was ruled unjustified. The consent decree — a sort of civil plea bargain — was one of several with police departments across the country arranged under pressure from the Obama Justice Department as it sought to end alleged civil rights abuses by police in cities from Baltimore to Cleveland to Ferguson, Missouri. Chicago’s police consent decree was put in place under former Mayor Rahm Emanuel.
After being sharply curtailed by the Trump administration, consent decrees are back. In one of his first major actions as President Biden’s attorney general, Merrick Garland in April rescinded the Trump policy limiting them. Days later he announced an investigation into Floyd’s death, which is expected to result in a consent decree with Minneapolis.
That raises the question: Do consent decrees work? Do they help or hinder police in providing public safety? Do they protect citizens from abusive police practices?
The answer is necessarily subjective, in part because it’s hard to isolate the factors affecting crime and policing. Still, it seems clear that the record of consent decrees is mixed at best, and the surrender of local control, as in Seattle, may have a good deal to do with it.
Seattle has seen a marked increase in violent crime between 2013 — the first full year its cop shop came under consent decree — and 2020. There were 52 homicides in 2020 compared with 19 in 2013. The total number of violent crimes rose by nearly 25% over that time. The increase in violent crime holds, even accounting for growth in Seattle’s population over the last decade.
Los Angeles, on the other hand, showed improvement, according to researchers from Harvard University’s Kennedy School of Government. After nearly a decade under a pre-Obama consent decree, according to the researchers, “The quality of service to residents is higher, the perception of the LAPD as fair has risen, and the use of force is down.” The L.A. consent decree was finally lifted in 2013.
The judge overseeing the Ferguson decree — imposed after the 2014 police killing of a young Black man, Michael Brown — said at a “status conference” last year that “things have not gone as quickly as we had hoped and as the consent decree anticipated, but I believe that great progress has been made.”
A study of the Baltimore police by the American Civil Liberties Union was less positive about results of the decree imposed after the 2015 death of Freddie Gray in police custody. Aggressive cops “get caught and they pretend to go into reform mode,” said one lawyer interviewed for the report. Soon “people forget about it and they do it again.”
This month, the head of Cleveland’s police union blamed that city’s consent decree for growing gun crime and other lawlessness. “The homicide rate is up crazy,” union President Jeff Follmer said. “(How) about let the police do their job and maybe some of these numbers go down?”
Critics of consent decrees say the court-governed agreements hinder reform by taking responsibility away from democratically elected officials, whether a given decree has to do with law enforcement or any other issue. With authority in the hands of unelected, unaccountable judges, monitors, and commissions, change can take years or even decades — if there is change at all.
Amid the uproar over George Floyd’s death, Seattle’s City Council voted unanimously to cut millions of dollars from its police budget. The federal government overruled it.
Decrees may appear democratic, even if a federal judge does have the ultimate say-so, from training policies and use of force standards, to accountability measures and when to lift a decree altogether. That’s because the judge’s rulings are usually informed by a monitor. The monitor, in turn, listens to the recommendations of a commission made up of community stakeholders.
Seattle’s consent decree did indeed establish a Community Police Commission, whose membership was supposed to be “representative of the many and diverse communities in Seattle, including members from each precinct of the city, police officer unions, faith communities, minority, ethnic, and other community organizations, and student or youth organizations.”
But it turns out that diverse membership does not a democracy make. Community representatives do not bear the same burdens as elected leaders. And their power relative to the judge is still limited, which may be an understatement.
David Schoenbrod, a professor at New York Law School and co-author of the book “Democracy by Decree,” argues that authority must be tied to representation. “The way democracy is supposed to work,” he told RealClearInvestigations, “is for key policies to be made by elected officials. They are responsible.”
When Seattle copped to a consent decree rather than fight the DOJ’s determination that its policing was discriminatory, violent, and unconstitutional, its police department found itself answering to Judge Robart.
Robart not only blocked lawmakers from implementing policy reforms, but dressed them down for not recognizing his authority. “I have some rather harsh words for the City Council over the last six months or so,” Robart declared this past February. “I think they have lost sight of the fact that the 100 paragraphs in the consent decree are not 100 paragraphs. They are not even commitments. They are obligations, orders from this court of things that will be done.
“And when they decide to take matters into their own hands in contravention of the consent decree, then they drag me into a situation that I don’t want to be in, which is telling them, ‘No, you can’t do that.'”
So where does federal authority leave room for local lawmakers’ preferred policies to be tested?
“Defunding” the police may be a good idea; it might be a terrible idea. But without responsibility for the outcome, legislators don’t have to answer for their roles in the policies chosen. Elected officials can say, “The court made us do it.”
Eric Felten writes for RealClearInvestigations.
Submit a letter, of no more than 400 words, to the editor here or email letters@chicagotribune.com.
Get our latest editorials, op-eds and columns, delivered twice a week in our newsletter. Sign up here.
