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Justice Department Can't Fix Policing

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Word that the Department of Justice has reached a settlement with the Cleveland Division of Police ought to be reassuring … right? Someone must’ve thought so, given that the news was leaked over the holiday weekend. The timing was presumably intended to counteract public outrage at a judge’s acquittal of Officer Michael Brelo, who was involved in a chase in which an unarmed black couple died after being shot at 137 times.

There are important reasons for the Justice Department to get involved and rein in rogue police departments. Yet we shouldn’t get too complacent when we hear that the department has settled with police in the spotlight. Federal supervision isn’t the answer to the problems facing America’s police departments -- better political participation is.

Start with the mechanics of a Justice Department settlement. The ball ordinarily gets rolling when the news media cover some major deviation from acceptable norms of policing -- usually in the form of some spectacular event in which police officers kill civilians. In response to political pressure, the department initiates an investigation of police policies and practices. That typically leads to a report, like the one the Justice Department published in December about Cleveland.

So far, the federal supervision will have consisted solely of information-gathering and publicity. But once the report exists, the evidence in it can be used to bring a federal lawsuit charging the city with civil-rights violations. In theory, a city could fight the suit in federal court. But considering the relative resources of the federal government compared with a municipality, few cities will defend such a case.

Resources aside, consider the politics for the mayor and police commissioner whose law-enforcement operation is being charged with unconstitutional policing. They might gain the trust of their officers by defending the department, but the votes they need for election come from the public, which is unlikely to be happy with intransigence.

It’s therefore much better for the city to make the suit to go away. That’s where a settlement comes in. The Justice Department will mandate certain conditions -- for example, body cameras, retraining and the rewriting of policies. Cleveland officers will have to follow strict new rules about the use of force, and an independent monitor will be sure they comply.

In some cases, the mayor and even the top brass may welcome the policing changes demanded as the price of the settlement. When that’s the case, the effect of the settlement is to give political cover to city hall and the police commissioner’s office to require change without taking responsibility for it. Essentially, the Justice Department takes the political hit from the officers, while simultaneously producing some sense at the national level that the problems are being addressed.

In one sense, there’s nothing wrong with this somewhat collusive settlement process. The 14th Amendment creates federal oversight of states’ enforcement of our basic constitutional rights. The idea -- borne out over 150 years -- is that states and cities won’t always do a good job of delivering basic protections to all citizens. The 14th Amendment authorizes Congress to pass laws requiring states to provide rights. Once those laws are in place, the executive branch should enforce them, and the judiciary should stand ready to decide cases against the states as needed. The Justice Department's settlement process is the concrete manifestation of this supervisory structure.

Yet the same reasons that fuel the occasional need for federal oversight also demonstrate why federal oversight isn't nearly sufficient to guarantee respect for constitutional rights at the city and state level. The federal government’s role is only supposed to kick in when the states or cities themselves have violated constitutional rights, and their internal procedures for respecting those rights have broken down.

The basic mechanism for police oversight in the U.S. isn't supposed to be the federal government. It’s supposed to be the political process. Mayors are elected. Many police commissioners are directly elected, too, or else they’re chosen by elected mayors or commissions that are meant to be politically responsible. In other words, the same people who signed the Justice Department settlement are already supposed to be responding to political incentives to do their jobs right.

Federal intervention is a marker that something’s gone wrong in the supervision process. But what, exactly, is the political failure that creates policing so aggressive that it violates the Constitution?

The most obvious answer is that the people whose rights are most violated don’t have enough say in choosing mayors and police commissioners. In cities where poor blacks are a minority, the problem might be a structural feature of democracy. But in places such as Ferguson, Missouri, where blacks are a majority or close to it, the problem seems to lie in a broken political system in which residents don’t think they can supervise their politicians by voting.

Federal supervision will always be spotty and piecemeal. It will always come from far away, and it will always fade when the media attention that created it recedes. Constitutional supervision is necessary in extreme cases where the political process has broken down, but it isn’t close to sufficient. It can’t substitute for functioning democracy at the local level. If that can’t be fixed, our problems won’t be solved by the occasional settlement.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net