A 'Pattern or Practice' of Violence in America
Long before a Cleveland police officer shot and killed a 12-year-old boy holding a pellet gun in a park in November 2014, the U.S. Department of Justice was already investigating numerous allegations of excessive use of force by the city's cops. Federal monitors with the agency's civil rights division arrived in March 2013 and spent 18 months scrutinizing nearly 600 cases.
The result, a 105-page document released May 26 known as a consent decree, spells out new use-of-force guidelines and procedures to investigate police misconduct, and calls for training to counter racial bias. Cleveland’s mayor and police chief joined in the announcement of the plan, which will keep their city under federal monitoring for years to come.
When a police force gets into enough trouble, the feds often come to town: Los Angeles in 1996; Austin, Tex., in 2007; and Baltimore in May, weeks after 25-year-old Freddie Gray died in the custody of police. In total, the Justice Department has investigated 67 police departments since 1994.
Civil Rights Division Investigations Under the Law Enforcement Act
Major Incidents
Memorandum of Agreement/Understanding
Consent Decree
Note: Incidents that precede DOJ investigation do not imply causation nor do they represent a comprehensive list of precipitating events.
The Department of Justice didn't have the authority to get involved with local police until after the 1991 broadcast of a grainy video showing four Los Angeles Police Department officers beating an unarmed black man. “It was always on the wish list,” recalls Margo Schlanger, a law professor at the University of Michigan who worked at DOJ’s Civil Rights Division in the mid-1990s. “The Rodney King incident provided the impetus," and Democrats in Congress spent the next three years working to make police reform a federal prerogative. The Violent Crime Control and Law Enforcement Act, passed in 1994, allowed DOJ to step in whenever police engage in “a pattern or practice of conduct" that deprives people of their constitutional rights.
The law was passed with the LAPD in mind, and one of the first investigations conducted under DOJ's new power started in Los Angeles in 1996. Now any jurisdiction with a police problem finds itself in a position to be investigated from on high.
It begins with a preliminary inquiry, which Schlanger describes as little more than "a glimmer in someone’s eye"—as long as that someone is a lawyer working for DOJ. A preliminary inquiry may be a lawyer at DOJ doing some reading to get an idea of recurring problems at a particular police department.
The announcement of a formal investigation—the step taken by Attorney General Loretta Lynch on May 8 regarding the Baltimore Police Department's alleged involvement in Freddie Gray's death—opens up the process to law enforcement experts who will begin reviewing training procedures, disciplinary policies, and routine police interactions. About 325 preliminary inquiries have taken place from 2000 to 2013, and 38 cases proceeded to formal investigation, according to numbers gathered by University of Illinois legal scholar Stephen Rushin.
Even at this point, DOJ can decide to do nothing. If it finds that patterns of police conduct need to change, it can pursue three separate options:
Technical Assistance Letter. These letters are not enforceable by courts and tend to emerge in cases where easy fixes can solve police problems. A 2003 letter to the Schenectady, N.Y., Police Department, for example, suggested that officials there should rewrite policies and ensure that officers are explicitly aware of them. The courts could stay out of it.
Memorandum of Understanding. These aren’t enforceable in court, either. They are more like handshake agreements in which—even without a finding of official wrongdoing—steps are taken to ensure that bad things don’t happen. A memorandum of understanding in 2014 between entities in Missoula, Mont., and DOJ described steps taken to address complaints about gender discrimination and sexual harassment. Again, no need for the courts to step in.
Lawsuit Against a Local Jurisdiction. In most cases, these lawsuits never go to trial. The signing of a consent decree can eliminate the need for one while obligating local officials to follow new policies under DOJ oversight. An independent monitor is usually hired to ensure that the suggested policy changes take place. These are enforceable in court: When a monitor finds that a jurisdiction hasn’t done what it agreed to do, the jurisdiction can be found in contempt of court. If the jurisdiction does not want to sign a consent decree, the lawsuit can go to trial, leaving it for a federal judge to decide what’s next for the police department. Jurisdictions have refused to sign consent decrees on only a handful of occasions, and DOJ has gone to trial only once, in a case involving discrimination against Latinos by the Alamance County Sheriff's Office in North Carolina.
DOJ involvement in any form can be expensive. That 2012 consent decree with the New Orleans Police Department came in at more than $10 million. DOJ involvement cost Seattle at least $5 million. Just last week, Albuquerque's city council agreed to pay $4.5 million for a federal independent monitor of its embattled police department.
In the best possible circumstances, the expense and time prove worthwhile. It took DOJ four years to reach a consent decree with the LAPD after opening its investigation in 1996. A Harvard study published in 2009 found that crime rates decreased significantly over the eight years that the consent decree was in force. People became more satisfied with the way officers conducted themselves, complaints of racial biases decreased, and “both the management and the governance of the LAPD have also changed for the better,” the study concludes.
Mixed outcomes are more common. After eight years under a consent decree, Pittsburgh’s police department made “long-term improvements in police accountability,” according to a 2005 study by the Vera Institute, a New York-based think tank focused on criminal justice policy. Since then, Pittsburgh’s police department has made headlines involving violent incidents, including the 2010 beating of an unarmed high school student. A former police chief, Nate Harper, is serving time in federal prison for conspiracy and fraud charges.
And while New Orleans' ongoing DOJ consent decree hasn't led to police chiefs being thrown in federal prison, it's not going as smoothly as one might hope. Just last week, U.S. District Judge Susie Morgan scolded the New Orleans Police Department to "pick up the pace" in implementing much-needed changes to the force. "I've made clear that my disappointment is not going to continue," the judge said.
In most cases, however, federal oversight produces positive changes and forces police officials and officers to give serious thought to how they interact with the citizens they serve. “It’s far from perfect,” Rushin says, “but it’s by far the best mechanism we have to combat police misconduct.”
Federal Interventions in Local Law Enforcement Since 1994