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Justice Department Has Few Tools to Fix Ferguson

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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The Department of Justice must’ve expected that the Ferguson, Missouri, City Council would stall in accepting the terms of a consent decree over allegations that the city’s police and courts have violated black residents’ civil rights. The department had a 56-page complaint for a lawsuit at the ready, and filed it just a day after the council demanded several changes to the negotiated draft.

Presumably, Ferguson won’t want the embarrassment or the expense of fighting a federal lawsuit. The department is using force as a negotiating tactic, and Ferguson will have to fold.

Yet the episode raises a problem with roots in the history of civil-rights enforcement. What should the Department of Justice or the courts do if a city like Ferguson won’t accept a deal, and insists on litigating alleged civil-rights violations to completion?

The complaint is interesting in this respect. In the brief section at the end asking for a remedy, it asks the court to declare that the Ferguson Police Department has engaged in a pattern and practice of civil-rights violations. Next it asks the court to order the police not perform the acts that constitute that pattern and practice.

But such a judicial declaration or order won’t change anything, as the department well knows. So the complaint goes on to ask the judge to order the police to “adopt and implement policies, procedures, and mechanisms” that would “identify, correct, and prevent” the unlawful conduct. And it adds a generic prayer for such relief as “the interests of justice may require.”

What would all of this mean to a judge at the close of actual litigation? In theory, a federal judge could make a list of policies, then order the police to implement them. The judge might even take the list from the draft consent decree.

But the problem of implementation would remain. And suppose the policies weren’t put into effect. Would the department have to come back to the judge every time the police failed to follow them?

These questions aren’t new. They go back to the 1960s and ’70s, the heyday of civil-rights litigation. At the time, the Department of Justice had a solution. It asks federal courts to adopt what were called “structural injunctions” to reorganize and repair failed institutions that were violating civil rights.  A structural injunction for reorganization often involved the appointment by the federal court of a special master to supervise and if necessary implement better policies in the wake of systemic failure.

Structural injunctions didn’t only govern police departments. They were used most prolifically to desegregate schools. Court-appointed masters adopted the full panoply of desegregation plans, from busing in Boston to magnet schools and beyond.

So why didn’t the Justice Department ask for a structural injunction to remake the Ferguson Police Department? Surely it needs it, as the city’s intransigence shows. If Justice is correct in its allegations that the police department has been operating basically as a revenue-generating mechanism, leveling fines on a racially discriminatory basis, then the Ferguson police is about as broken as a department can get -- and that’s even before we get to the death of Michael Brown.

The reason for the Justice Department’s reticence almost certainly has to do with the conventional view about the structural injunctions of the past, namely that they didn’t work well enough to justify trying them again.

To be sure, this viewpoint isn’t grounded in sophisticated empirical analysis. Structural injunctions were used to address only the most intractable problems, and limitations on their success may very well have derived from the hard job they were supposed to do.

Yet the experience of school desegregation in particular gave structural injunctions a bad name. Courts -- and the experts they appointed -- turned out not to be especially skilled in solving complex social problems. Political institutions like city councils and legislatures bitterly resented that an unelected federal judge was ordering them around.

As a result, even the liberal civil-rights division of the liberal Department of Justice of the liberal Barack Obama administration isn’t prepared to demand a takeover of what must be one of the worst police departments in the country -- or certainly the most high-profile bad one.

The upshot is that the tools available to the Department of Justice to effect meaningful change in Ferguson are fewer than you might think. Eventually, the city will have to adopt the consent decree in whole or nearly in whole. But supervision and implementation will remain difficult. And if the police aren’t responsive, there will be little choice for the Justice Department but to ask the judge to declare the consent decree has been violated. More rigorous solutions are, for now, off the table.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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

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