On Monday night, Attorney General Jeff Sessions released a two-page memo that shocked leaders in civil rights law and police reform. According to the memo, the Department of Justice will be undertaking a large-scale review of all ongoing DOJ “activities” to make sure they reflect principles that have been espoused by the Trump administration. Among those principles, per the memo:
- that “law enforcement officers perform uniquely dangerous tasks, and the Department should help promote officer safety, officer morale, and public respect for their work.”
- that “local control and local accountability are necessary for effective local policing. It is not the responsibility of the federal government to manage non-federal law enforcement agencies.”
- that “the misdeeds of individual bad actors should not impugn or undermine the legitimate and honorable work that law enforcement officers and agencies perform in keeping American communities safe.”
In the crosshairs of the DOJ review will be more than a dozen consent decree agreements—essentially, formalized and legally binding reform plans—that the Obama administration negotiated as part of its effort to help bring change to troubled police departments. These consent decrees, which are supervised by judges and overseen by independent monitors, have been implemented by the Obama administration in cities including Ferguson, Missouri; Cleveland; Newark, New Jersey; Seattle; and New Orleans. While the terms of these agreements vary widely, they all reflect the belief that the most serious and systemic problems that arise inside police departments—including issues of institutional racism, unconstitutional investigatory practices, and unnecessary use of force—can best be fixed through a court-enforced process in which jurisdictions are held accountable for meeting specific goals.
Though Sessions has made it abundantly clear that he doesn’t believe the federal government should be in the business of telling local police departments what to do—in one recent speech he called consent decrees “almost disrespectful”—the memo issued on Monday was nevertheless surprising in its grandiosity.
To find out what’s at stake, I called Christy Lopez, who spent six years as a leader in the part of the DOJ’s Civil Rights Division that investigates police departments and negotiates consent decrees. Lopez, who became a visiting faculty member at Georgetown Law after leaving the Department of Justice in January, most recently oversaw the Civil Rights Division’s investigations of policing in Chicago and Baltimore, both of which generated disturbing reports but had not yet resulted in finalized consent decrees by the time Donald Trump was sworn in as president. The status of those consent decrees, as well as the ones previously issued by the Obama administration, is now up in the air. My interview with Lopez has been condensed and edited for clarity.
Leon Neyfakh: From the conversations I’ve had with civil rights attorneys since the inauguration, I got the sense that people were most acutely worried about whether the Trump administration would undermine the work your section of the Civil Rights Division did on Baltimore and Chicago. But the memo that was released on Monday seems broader than that. Was the sweep of it surprising to you?
Christy Lopez: It was—I did not think it would ever be so whole cloth and so broad. I figured it would be more of a piecemeal thing based on what was going on in particular cities. But this is a wholesale pause on everything, and that to me underscores that this is not about facts—this is about politics. It’s dismaying and surprising.
Sessions says in the memo that he wants a review of existing consent decrees to see if they comply with certain principles. What’s that going to look like? What are you imagining?
I think the consent decrees are at most risk, but it’s important to keep in mind that the memo goes far beyond consent decrees—it says there’s going to be a review of all collaborative efforts [between the federal government and local police departments]. They’re really looking at every single thing—every single way that DOJ helps police departments, including through the [Office of Community Oriented Policing Services] and the [Bureau of Justice Assistance]. What I suspect is they are going to try to scrub all of those programs of the ethos that we always took, which is that effective policing and constitutional policing go hand in hand.
Can you say more about that ethos?
It was always our view that for policing to be effective and to keep the public safe, you have to have police departments that respect people’s civil rights. I think that Sessions just rejects that. What that’s going to mean operationally, it remains to be seen, but I can imagine that it’s possible they won’t want to fund things like the Fair and Impartial Policing program, which was helping train officers on implicit bias and procedural justice, as well as anything else that is seen as “onerous.” In reality it’s going to be much less principled than that, because remember, this is the same DOJ that is ordering local law enforcement to work with Immigration and Customs Enforcement to enforce immigration laws even where local law enforcement says, “No, we don’t want to do that because it’s going to make our communities less safe.” It’s not going to be principled as far as the level of onerousness or intrusion or impact on public safety. It’s going to be this sort of idiosyncratic, ad hoc thing of, “I don’t like this; I think this is bad for policing,” and it clearly won’t be based on the expertise of the DOJ’s career staff or other people who know this area. It’s going to be based on politics.
So you’re saying that the putative motive here—that the federal government shouldn’t be intruding on the operations of local police agencies—runs counter to this administration’s policy of withholding money from police departments that don’t comply with their enforcement priorities.
Right. They’re pretending that they’re doing this to help police departments, but when they’re doing things over the objections of police chiefs and threatening to take away federal funding from places that don’t want to cooperate with ICE, it’s clear that it’s not really about that.
So then why is the administration doing this? Why are Sessions and Trump so vehemently opposed to all these reform-minded ideas—not just consent decrees but the other programs you mentioned, like procedural justice and implicit bias training?
I think what this is really about is an opposition to the federal government being used to help people. They want to dismantle what they would call the regulatory state. They want to take the federal government out of the picture.
Can they actually do that, as far as the Obama-era consent decrees are concerned? Putting aside Chicago, where there hasn’t been anything definitively agreed upon, and even Baltimore, where the proposed agreement hasn’t been made official yet, what can Sessions and the DOJ do to undermine reform efforts that are already underway?
They could literally go in and say, “We want to withdraw this consent decree. We don’t think this is necessary. We think this department can fix itself on its own.” Short of that, they can also say things like, “Well, they’ve been under this consent decree for five years, and we think that’s good enough.” They can also say, “Hey, we don’t think we need these provisions on race bias. We only want to do the part on use of force.” Or they can just decide that when the independent monitor comes back with a report that says, you know, “You’re not there yet,” they can file a motion saying, “We disagree with the monitor—we think the department is there on this or that particular provision.” So it’s endless, the ways in which they can undermine these agreements, in big ways and small ways.
I think that underscores one of the harms here, maybe the central harm, which is the signal this sends to law enforcement and to communities about whose side DOJ is on. They’re not on the side of improving policing. They’re on the side of stasis and going backward, even.
But these are court-enforced agreements, aren’t they? Is it naïve to think judges won’t just roll over if administration lawyers show up in court and say, “We’re done here”?
No, I don’t think that’s naïve at all. I think in some places judges might align with Sessions, but I completely agree that judges are going to be key right now. The judicial branch has always been important in protecting the rights of private citizens against the state, and the minority against the majority. Police chiefs are also going to be more important than ever—a lot of people who don’t know too much about this area, they’re not going to know who to believe, these crazy civil rights people or this crazy attorney general from the DOJ. So what law enforcement says is going to be very important. Finally, the communities that will be affected by this will be important as well. Are communities just going to sit there and say, “OK, go ahead and undo this whole thing”? Or are they going to apply some pressure?
What about rank-and-file police officers? Police unions have generally been extremely supportive of Trump and Sessions, even if some police executives have tried to convince the administration to take a less hard line.
I think unfortunately, just like Trump voters across the country are finding out right now, police officers are going to find out soon enough that these are not their friends—that they say stuff to make you think they’re your friends, but when it comes down to it, they’re going to take money away from you, and they’re going to make you less safe.
I want to ask you a personal question. You’ve put years of your life into putting these consent decrees in motion. How does it feel to read this memo and see all that work suddenly under threat?
I mean, obviously this isn’t about me and my feelings. But what I think gets me about this is the arrogance of Sessions coming in knowing nothing about policing, admitting that he hasn’t read the reports [on Chicago and Baltimore], and then second-guessing and undoing the work of a lot of incredibly dedicated career staff I worked alongside. The arrogance to just come in and say, “Your opinions are worth nothing to me; I’m going to sweep all this away”—I think that’s extremely demoralizing to people. Most of all, though, these agreements bring about policing that just doesn’t happen otherwise. I have a hundred stories about amazing things that have happened in policing because of these agreements, and when I think about all the amazing things that won’t happen in policing if Sessions gets his way, we’re going to see police officers get hurt, we’re going to see civilians hurt, we might see more crime. And so I think these decisions have consequences. They may be making them for political reasons, but they’re going to have real consequences. We’re going to be feeling that for years, and maybe decades.