DOJ's historic week was more about restoration than reform

REUTERS/Leah Millis

(Reuters) - It was an eventful week at the U.S. Justice Department.

Starting last Monday, the DOJ announced a slate of new policies that represents a historic extension of its mission to guard civil and constitutional rights and a sharp pivot from the Trump administration’s ultraconservative tough-on-crime approach to law enforcement.

U.S. Attorney General Merrick Garland said on Sept. 13 that the DOJ will toughen oversight of the federal monitors who oversee police reforms required under agreements the agency typically reaches with cities (instead of suing them). The so-called consent decrees are similar to a settlement and often follow an investigation into the patterns and practices of police departments, jails and other public entities.

The DOJ also announced a new policy on chokeholds and no-knock warrants, a new pattern-or-practice investigation in Georgia, and a review of whether federal grant recipients are engaging in illegal discrimination.

The moves are likely to have significant positive impact. A 2009 Harvard Kennedy School review found that incidents of serious force by the Los Angeles Police Department decreased since a 2002 consent decree, for example.

Still, some moves are long-overdue and others simply don’t go far enough, especially when considering the long, dark shadow of racist policing in the U.S.

The DOJ didn't answer my questions about the initiatives announced last week.

Let’s first consider the increased oversight of monitors, and the Georgia investigation in a broader context.

The DOJ's authority to compel police reform comes from Section 14141 of a 1994 crime bill. The Violent Crime Control and Law Enforcement Act was passed largely in response to protests and rioting after the 1991 beating of Rodney King and the LAPD officers’ subsequent acquittal, the DOJ said in a 2017 report on its pattern-or-practice cases since 1994.

But the DOJ initiated just 69 investigations between 1994 and 2017, notwithstanding the documented history of systemic police abuse in the U.S., which has more than 18,000 police departments, according to the agency report.

(Former President Donald Trump’s administration essentially shut down the DOJ’s police reform practice, before the recent revival under President Joe Biden.)

Besides the paucity of cases, some jurisdictions previously under consent decrees still show patterns of unconstitutional policing similar to those the DOJ found in years past.

Columbus, Ohio, was one of the first cities to be sued by the DOJ's civil rights division in 1999, partly for a pattern of false arrests. In fact, Reynoldsburg – part of the Columbus metro area – made it into debates preceding the 1994 bill because a lawsuit showed that abuse was so commonplace in its police department that one unit “called itself the S.N.A.T. squad, for ‘Special Nigger Arrest Team,’” according to a 1991 House Report.

Columbus’ consent decree terminated in 2004, but activists there have complained about fatal shootings of Black people. Local officials, including the city attorney, have directly asked the DOJ to step in, the Associated Press reported on Thursday.

The DOJ decided to provide technical assistance from its Office of Community Oriented Policing Services, but activists say they want a pattern-or-practice investigation.

A DOJ spokeswoman told me its civil rights division carefully weighs circumstances when deciding whether to open an investigation. The agency “also considers the context of local reform efforts and whether federal enforcement action is needed,” or if “other forms of intervention would be more appropriate” to address community concerns, the agency said.

Still, the need for more pattern-or-practice investigations nationally persists, as does the need for improved enforcement of consent agreements, given that these problems in policing recur in Columbus and elsewhere.

Baltimore, for example, entered into a consent decree in 2017, but its monitors said in 2020 that "reforms have not yet translated into widespread changes in officer conduct," and that the city’s recordkeeping was too shoddy to know whether it was working, according to a Reuters special report.

Increasing oversight of monitors also seems necessary for the same reasons – and Ohio provides another instructive example here.

Cleveland is currently under a consent agreement.

Ayesha Bell Hardaway, a Black professor at Case Western Reserve University School of Law, was recently forced to resign from her post as a member of the city's police monitoring team, according to a July 19 report by Cleveland's NPR affiliate, WCPN. Team leaders questioned Hardaway's independence after she criticized U.S. law enforcement in a radio interview.

Activists and the local NAACP responded with calls for the chief monitor’s removal, saying he’s too friendly with the police department, according to WCPN. The team reinstated Hardaway to the monitoring team in July, citing community concerns.

It’s been unclear at times which set of concerns – law enforcement or activists – has garnered more of the DOJ's attention. Since the advent of the DOJ's monitoring process in 1994, law enforcement has complained about too much oversight. For example, the police union in Chicago fought vigorously against a proposed consent decree in 2018, the Chicago Tribune reported in November of that year.

It's worth noting that Garland made the monitor oversight announcement on Sept. 13 before the International Association of Chiefs of Police, referencing law enforcement concerns about monitorships. He said he asked for a review to ensure monitors are “independent” and free of “conflicts of interests," and that he values the chiefs’ “partnership.” Garland used the same language the Cleveland monitoring team and police department did about Hardaway’s temporary dismissal. A police reform advocate told the AP on Thursday that the phrase "partnership" in this context makes him skeptical about reform.

In that light, Garland's monitoring review may not be particularly promising for reform advocates.

As for the chokehold and no-knock warrant policies, most large police departments have already restricted chokeholds, according to a January report by the Council on Criminal Justice. The DOJ apparently is playing catch-up. And chokehold restrictions over the past decade haven't really worked, largely because police departments don't enforce them strictly, an NPR investigation found in June 2020.

Also, the DOJ's policies still allow officers discretion to use chokeholds or no-knock warrants in certain circumstances. Both rules are subject to an officers' reasonable apprehension of physical danger, but that assessment is malleable and sometimes subjective.

In my view, the review to ensure the DOJ isn’t giving grants to departments that discriminate seems a more promising means of compelling some reforms, if only because the agency may not have done much on this front historically.

But there, too, one can argue that the DOJ is merely taking an extra step to ensure compliance with Title VI – a decades-old provision of the Civil Rights Act of 1964 that prohibits federal grant recipients from discriminating.

All in all, the moves are steps in the right direction, and a clear indication that the administration’s promises on improving justice and racial equity aren’t hollow. That said, working to revive or restore a lax enforcement system is one thing, and improving or reforming that system is quite another.

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Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com