Consent Decrees: Not Just for Cops

Walter Olson

Two weeks ago I wrote a piece in this space about Jeff Sessions’s parting act as attorney general, in which he signed off on guidelines for how the U.S. Department of Justice reaches consent decrees with local and state governments it sues. The guidelines, I argued, appear to be generally modest in scope and respond to decades of criticism of the consent-decree device as it has played out in fields such as education, welfare, and mental health. In particular, I said, much of the press misleadingly covered the memo as simply Sessions’s revenge against decrees (especially recent ones) governing city police departments charged with systematic misconduct, when the guidelines in fact apply much more broadly than just in the police context and don’t even specifically mention police.

Now Washington Post opinion writer Radley Balko, an old friend whose writing on police misconduct I often cite, has written a detailed response to my piece. I agree with many of his points and do not intend to dispute others, which often arise from differences in emphasis. But there is at least one important point on which we disagree.

Balko writes that “contrary to Olson, I think they [police consent decrees] do a lot of good.” I never argued the contrary about them. To be sure, there are police-reform advocates who have wondered whether decrees have really accomplished all that much good; I link to some of their views in this brief Overlawyered post. And Balko himself discusses the 2015 Washington Post investigation that found mixed and disappointing outcomes after two decades of decrees, even if he draws the contrasting lesson that we should be willing to countenance very long periods of federal supervision because it’s so hard to change police culture. But it isn’t necessary to resolve the issue either way. What I argue is that whatever good decrees accomplish, that good should be pursued consistent with principles of federalism, fairness toward those in and out of court, and some prudent limits to the ongoing arbitrary exercise of Department of Justice power.

New Justice Department guidelines apply to more than police departments and must respect federalism.

Here is more common ground: Neither I nor, so far as I can see, the Sessions memo argued that decrees are necessarily illegitimate as a legal or constitutional matter. To the contrary, we all assume that such decrees will often have a sound legal basis and will continue to be negotiated in the future.

On the media-criticism theme of my piece, Balko writes that it “doesn’t seem unfair” for the media to “speculate” that Sessions’s well-documented earlier criticism of police decrees was foremost in his mind in making sure the guidelines got changed before he left. Again, I agree. It’s not unfair for the media to speculate this way, so long as they give readers enough information to evaluate where speculation begins and leaves off. Doing so might involve at least mentioning that 1) the department itself offered an entirely different rationale for changing its handling of decrees; 2) most of the effects of the memo are likely to come in areas other than policing; and 3) the changes are grounded in discontents about decrees that long predate Sessions or his predecessors in the Obama DOJ. Mixed motives are common in life, and so are orders of general applicability that the decision maker smilingly knows will result in one particular effect along with many others. What is bad journalism is to omit so much of this background that a reader never realizes that this memo will affect the much larger number of decrees that govern all sorts of unrelated activities of state and local government.

Balko is right that some decrees allow for members of the public to express their discontent to the judge. I can’t view that as much of a substitute for lost local democratic input on policy or spending, though. Such a judicial hearing takes place after the actual negotiations over who will force whom to do what, and once that deal is struck behind closed doors, the chance that the judge will nix the deal and tell the parties to go back to litigating is always lower. And it’s inherent that the closed-door negotiations about what promises the local government will make can’t be run past the public, because that’s not how lawyerly negotiations work.

How much practical difference will the new guidelines make? My own suspicion is that the next self-consciously progressive administration will find it easy to work around many of the new rules, such as the one requiring a high-level appointee to sign off on decrees and the one requiring that they be backed by reasoned internal memoranda. But there is one provision that both Balko and I agree is significant, but that we evaluate in opposite ways. That’s the one curtailing the department’s discretion to, as Balko puts it, “pursue any tangential issues or underlying causes” beyond the claimed legal or constitutional violations that form the gist of the lawsuit. To quote the guidelines directly, new decrees “must be narrowly tailored to remedy the injury caused by the alleged legal violation” and “must not be used to achieve general policy goals or to extract greater or different relief from the defendant than could be obtained through agency enforcement authority or by litigating the matter to judgment.”

Balko’s sources cite as an example how the feds used their complaint over police street enforcement in Ferguson, Mo., as leverage to arm-twist the town into pledging changes on a different issue: the way its municipal courts unfairly squeeze local residents for petty fines and fees. Now, this example should appeal to me, because I’ve written about that issue too, very much in agreement with Balko and his sources about the wretched practices of those St. Louis County town courts. Where we apparently disagree is on whether the federal government can properly order a locality to stop some wretched practice unless and until it can show that that practice violates some provision of the Constitution or federal law. If there’s a new and untried argument that the practices do violate the law, I’d like to give a judge a fair chance to review the question, not just do it as a fait accompli after some municipal lawyer warns his client against trying to fight the feds.

The very real and sometimes dire failings of local governments do not change the most important fact about our federal government, which is that it is one of limited powers.

Walter Olson is a senior fellow at the Cato Institute and writes the blog Overlawyered.