Law & the Courts

What the Media Got Wrong about Jeff Sessions’s Consent-Decree Rules

Attorney General Sessions at the Department of Justice in 2018 (Sait Serkan Gurbuz/Reuters)
In their eagerness to cast the former attorney general’s move in a bad light, mainstream outlets missed some of the most salient facts.

Just before he left office in November, Attorney General Jeff Sessions gave his approval to changes in the handling of the consent decrees by which local and state governments agree under pressure from the Justice Department to accept court orders controlling their future behavior.

Critics promptly assailed the move as motivated by a wish to let brutal police off the hook. “This memo ensures police departments can operate with impunity,” claimed an ACLU lawyer. The move reflected Sessions’s “staunch support for law enforcement and his belief that overzealous civil rights lawyers under the Obama administration vilified the local police,” said the New York Times. The departing AG had “dealt police reform one final blow on his way out the door,” said HuffPo, while the Cleveland Plain-Dealer called the move a “last-minute swipe at police reform efforts.” Some reports conceded that the new policy did nothing to upset Obama-era consent decrees that the DOJ had already reached with police departments in Chicago, Baltimore, Ferguson, Mo., and elsewhere. But they stressed that it might make it harder to obtain such settlements in the future.

If you look at a copy of the order itself, though, you may be struck by something: Not once in its seven pages does the word “police” even appear. That’s a clue that the press missed much of the story.

The debate in policy and legal circles over consent decrees goes back decades, and has only recently begun to overlap with the debate over police misconduct. The Justice Department’s website lists numerous decrees its negotiations have extracted from state and local governments, few of which have anything to do with cops. The book that helped crystallize discontent over such decrees was Ross Sandler’s and David Schoenbrod’s classic Democracy by Decree in 2003, but their use had been quite controversial as early as the 1960s and 1970s. Among the reasons why:

* They let outside critics manage (and micro-manage) local agencies. Decrees, which may be hundreds of pages long, install DOJ (or some other lawsuit-filer) to oversee and second-guess the operations of the sued city or state, in an enviable position of power without accountability. The deal often includes the appointment of a monitor who might even move in to the subject agency’s offices on a full- or part-time basis.

* They last and last. Having acquired this valuable power, the feds or other plaintiffs can be leisurely about relinquishing it. Definitions of what constitutes compliance can be vague, complex, and doubtfully practical, and even if the defendants manage to show that they have crossed every “t” and dotted every “i,” they may still need to prove that they are not likely to backslide when taken off the hook. So the process drags on — sometimes for decades, sometimes indefinitely.

* They make a perfect device for arm-twisting. Maybe a school system or foster-care agency has failed to fulfill one part of its complex obligations under some federal law. But once the decree is in place, the feds or others in the driver’s seat can use it as leverage to extract policy changes on entirely unrelated issues, even absent any alleged lawbreaking or judicial nudge.

* Things get done behind closed doors. Notice all the talk about sunlight rules, public notice and comment, etc. when some big policy change is afoot? When officials and advocates are privately cutting deals behind a scrim of attorney–client confidentiality, forget all that. Private pressure groups might occupy a seat at the negotiating table if they or their close allies are litigants, but ordinary taxpayers, parents, and other affected interests are sure to wind up on the outside.

* They frustrate democracy. Who answers to local voters? Not the control group, as it has been termed, of federal civil servants or other plaintiffs managing the decree. As for the local agency, once its hands are legally tied, mayors and city councils can come and go and it doesn’t matter: It’s unlawful to change direction even if local voters want to.

* They can be collusive. Consent decrees often lock a local agency into policies that expand its power or funding, while weakening the oversight powers of local lawmakers who once held the purse strings. For that very reason, the negotiations that result in decrees sometimes aren’t particularly adversarial, and might even resemble sweetheart deals arranged at the expense of local electorates that might otherwise have opposed some program’s expansion.

These patterns have troubled the courts. In a 2004 case involving Texas Medicaid standards, Justice Anthony Kennedy, writing for a unanimous Supreme Court, called concerns about the practice “legitimate.” “If not limited to reasonable and necessary implementations of federal law, remedies outlined in consent decrees involving state officeholders may improperly deprive future officials of their designated legislative and executive powers,” Kennedy wrote. “They may also lead to federal court oversight of state programs for long periods of time even absent an ongoing violation of federal law.” Justice Samuel Alito, writing for the majority in a 2009 case, observed that decrees governing states and localities “raise sensitive federalism concerns.”

Those concerns have in the past few decades spread to Congress, which, though it has failed to pass legislation restricting consent decrees, has held hearings on the matter. In 2005, Alabama attorney general Troy King testified before the Senate Judiciary Committee about a series of decrees that had wrought havoc on his state’s mental-health-care, child-welfare, teacher-certification, and public-employment sectors, as well as its methods of judicial election. Among his friendly questioners was his predecessor as Alabama AG, Jeff Sessions, who by then was serving as the state’s junior senator. (The word “police” came up only once at the hearing, and very tangentially, in a discussion by Professor Sandler of a consent decree curtailing public-housing evictions in New York City.)

Anyone seeking an even clearer window into the thinking of the future Attorney General could have checked out a 2008 critical study of consent decrees conducted by Michael E. DeBow, Gary J. Palmer, and John J. Park Jr. for the Alabama Policy Institute. In the foreword, then-senator Sessions calls “expansive court decrees” one of the “most dangerous . . . exercises of raw power” and an “end run around the democratic process.”

To anyone who had been paying attention, then, Sessions’s interest in the issue was crystal clear and long predated the rise to fame of Barack Obama, let alone the Black Lives Matter movement. In fact, the issue had been percolating long enough in Republican legal circles that an attorney general appointed by a President Ted Cruz, Marco Rubio, Carly Fiorina, or John Kasich might easily have pursued something very similar.

What’s more, the new guidelines are modest, and hew closely to the concerns articulated by judges like Kennedy and Alito. They ask that DOJ investigations accord a state or local government the “opportunity to respond to the material allegations against it.” In a nod to the “sensitive federalism concerns” Alito raised, they specify that senior DOJ leaders should review and sign off on decrees that impose long-term supervision or financial obligations on these governments and their programs, or raise novel issues. They state that new decrees should be justified beforehand by reasoned internal memoranda explaining the background and terms, and, with some exceptions, must lay out “specific and measurable” definitions of compliance and duration. And they mandate that 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.”

As for appointed monitors, their unconstrained use “may, in some cases, effectively turn over partial control of the state or local governmental entity to the monitor,” the new rules note, and so their use should be an exception rather than the rule. When appointed, monitors “should operate with sufficient accountability and oversight, and should adhere to a code of ethics so that conflicts of interest – including a financial interest in prolonging the duration or expanding the scope of the monitorship – are avoided.”

Are there principled arguments against these improvements — reasons, for example, for letting underlings cut consent-decree deals without high-level supervision, or leaving monitors’ conflicts of interest unaddressed, or allowing federal supervision of an errant state that might prove permanent? I can’t say for sure. But to the daily media, primed as it was to fit Sessions’s every move into a pre-set frame of criticism, these questions didn’t even seem worth asking.

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

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