Sen. Jeff Sessions (R-AL) is almost certain to be confirmed as Donald Trump’s Attorney General, stepping into the top law enforcement job at a high-water-mark for civilian distrust in police and scrutiny of the justice system.
Senators pressed Sessions to detail his views on the Justice Department’s (DOJ) role in police oversight during his confirmation testimony on Tuesday. He faced pointed questions on a key accountability tool known in legal jargon as a “consent decree.”
Consent decrees are negotiated settlements designed to resolve a police department’s pattern of civil rights abuses, based on long investigations. They are far-reaching deals enforced by court order.
Done right, they set communities and their police on a collaborative path toward reform. With courts backstopping the plans, it’s harder for departments to backslide into old shortcuts through the bill of rights — and easier to track progress toward the shared goal of a healthy, functional police-community relationship.
But all that is premised on the idea that departments can have broad, systemic flaws; that institutional rot can breed poisonous interactions, even when they don’t make the news.
Throughout his testimony on Tuesday, Sessions shrugged off that premise. The exchanges indicate his DOJ would step back from using the decrees.
‘An end run around the democratic process’
“We need to be sure that when we criticize law officers it is a narrowly focused on the right basis for criticism,” Sessions told Sen. John Cornyn (R-TX). “To smear whole departments places those officers at greater risk.”
He told Sen. Mazie Hirono (D-HI) that consent decrees negotiated by his predecessors will “remain in force until and if they are changed” — hardly a ringing endorsement — and then reiterated his reservations about broad critique of police departments.
“These lawsuits undermine the respect for police officers and create an impression that the entire department is not doing their work consistent with fidelity to law and fairness, and we need to be careful before we do that,” he said.
What’s more, Sessions argued, the agreements are inherently coercive.
“It’s a difficult thing for a city to be sued by the Department of Justice and to be told that your police department is systematically failing to serve the people of the state or the city,” he said. “So they often feel forced to agree to a consent decree just to remove that stigma, and sometimes there are difficulties there.”
Sessions’ insistence on framing these agreements as top-down lawsuits rather than the product of long multilateral negotiations convened by federal investigators suggests a baseline hostility to the concept.
Such hostility is not new for Sessions. As Hirono pointed out, he previously described court-backed oversight agreements as “an end run around the democratic process.”
Later in the day, Sessions claimed he never wrote that. “I don’t believe that was my language,” he told another senator.
But it was. Sessions used that phrase in the foreword to a 2008 academic critique of consent decrees by three legal scholars, writing in support of their argument.
“A predecessor’s consent decree is difficult to alter or end; in practice, a decree can last for many years — longer than the remedy that was needed,” Sessions wrote.
Sessions’ conviction that police abuses are generally not widespread and his leariness toward the key tool of police oversight are worrying, Rep. Elijah Cummings (D-MD) told ThinkProgress.
“The Department of Justice should use all the tools at its disposal to help our local law enforcement agencies uphold our citizens’ constitutional and basic human rights,” said Cummings, who is well positioned to look over Sessions’ shoulder from his post as top Democrat on the House Oversight Committee.
“This is why I was concerned to hear of Senator Sessions’ skepticism about the consent decree process, and President-Elect Trump’s comments about a ‘law-and-order’ approach to policing.”
20 cities of “bad apples”
If confirmed, Sessions will inherit 20 active consent decrees negotiated between the DOJ’s Civil Rights Division (CRD) and local police departments with nefarious track records. Some decrees have fixed timelines and others are open-ended. But in each case, it would be Sessions’ Department of Justice that must act as a partner to local officials and, if necessary, argue to a judge that police departments are failing to fulfill the settlements.
While stymieing existing work is relatively hard, declining new enforcement tasks would be an easier lift.
Police killings under suspicious circumstances will be hard to ignore, but Sessions could treat these as one-offs that do not merit additional scrutiny of the departments and communities where they happened.
Work done under Obama-era Attorneys General Loretta Lynch and Eric Holder has helped redeem the constitutional rights of hundreds of thousands of mostly-brown Americans. But that progress seems to have also opened wounds within the law enforcement world that are apt to fester.
Hardline racial views in police departments will likely impede progress at ground level even where consent decrees continue.
White cops are far more likely than white civilians at large to believe that America no longer needs to lift a finger to ensure black people enjoy their full rights. 92 percent of white cops in the poll “say the country has made the changes need to assure equal rights for blacks,” Pew found. These hardline racial views in police departments will likely impede progress at ground level even where consent decrees continue.
That leaves a heavy lift for local communities, whether or not Sessions has their back. On Thursday, Cummings’ hometown of Baltimore became the last city to finalize a consent decree before President Obama departs. He believes that work will continue with or without Trump’s help.
“Here in Baltimore, we now have a consent decree to work with, city leaders dedicated to crucial reforms, and a community — including myself — ready to make sure this process keeps moving forward,” he said. “Together, we will continue to press ahead and repair the relationship between our community and our police department.”
A roadmap to gut the Civil Rights Division
If he does want to gut police oversight, Sessions doesn’t need to get creative. The blueprint for sabotaging CRD is younger than some Vine stars.
Bradley Schlozman, an official in George W. Bush’s administration, set out to undermine the division’s mission by stocking it with conservative lawyers who could paralyze its work. He bragged of hiring “right-thinking Americans” to “gerrymander all of those crazy libs” out of the division in the early 2000s. “In one email,” the Huffington Post’s Ryan Reilly notes, “Schlozman said that ‘bitchslapping’ Civil Rights Division attorneys ‘really did get the blood pumping.’”
The Bush administration’s ideological sabotage of the CRD was largely focused on voting rights casework, as police oversight was far less prominent in that era. But damage was not easily undone. There is no simple toggle switch on federal bureaucracies.
“‘Bitchslapping’ Civil Rights Division attorneys ‘really did get the blood pumping.’”
When former Attorney General Eric Holder took office in 2009, one of his first priorities was to rehabilitate the office. Several months after he was sworn in, Holder was still massaging Schlozman’s knots out of the agency’s limbs. “I think the wounds that were inflicted on this division were deep, and it will take some time for them to fully heal,” he told the New York Times that August. By the time Holder passed the reigns to Loretta Lynch, the agency was again doing aggressive work across a broad portfolio in which police oversight was only the most visible beat.
That transformation suggests that Trump and Sessions would not be able to flip things around quickly — but also that a restoration of Schlozman’s “bitchslapping” approach is doable if they are determined. And Republicans are already working to smooth the way, advancing legislation and resurrecting administrative rules that make it easy to chase career civil servants out of federal agencies.
Many attorneys may already have chosen to look for new work, as sources indicated to Reilly shortly after the election. But even those who stick around could be targeted for removal.
As soon as the new Congress was sworn in, Republican leaders revived the “Holman Rule,” which allows majority House and Senate votes to cut positions, reassign career servants, or even reduce a civil servant’s salary to $1.
The move subordinates agency work “to the whims of elected politicians,” the American Federation of Government Employees wrote in early January, and “jeopardize[s] the critical governmental services upon which the American people rely.”
Until the Republican administration decides to come after police accountability infrastructure, though, Elijah Cummings trusts those men and women to keep up the good fight.
“I have confidence in the longtime employees working at the DOJ Civil Rights Division who go to work every day to ensure that police reform moves forward diligently and urgently across this country,” said Cummings.
If those career staffers are going to live up to Cummings’ confidence, they may have to defy their bosses to do it.
And when new scandals crop up, consent decrees — the sharpest tool society has to extract accountability from the people it entrusts to uphold everyone’s rights — may hang unused on the shop wall.