The Biden DOJ’s return to its Obama-era proliferation of civil-rights investigations and consent decrees is about advancing a racially divisive agenda.
The Biden DOJ’s return to its Obama-era proliferation of civil-rights investigations and consent decrees is about advancing a racially divisive agenda.
What follows are Andrew C. McCarthy’s remarks at last week’s annual Federalist Society convention in Washington, on a panel addressing the Biden Justice Department’s revival of consent decrees in civil–rights litigation.
I n 1990, there were 2,600 murders in New York City. Let that sink in: two-thousand-six-hundred. About seven a day.
By 2017, even with the city significantly bigger population-wise, the number of murders had dropped nearly 90 percent — to 290.
Crime was at record highs in the generation from the 1970s to the 1990s. After the early 1990s, it sank to record lows.
That decrease was driven by state and local policing innovations.
The “broken windows” philosophy, for example, held that by enforcing the law against low-level offenses, by projecting the principle that the rule of law was in effect, the laws would be enforced. The behavior of lawbreakers would moderate. The culture would change.
Success bred success.
Enforcing the laws against low-level crime meant interviewing arrested suspects. It turned out that they had lots of helpful information about crime — their own crimes and those of others. The interviews and follow-up investigation improved the police department’s intelligence database.
That led, seamlessly, to such innovations as “CompStat”: an intelligence-driven policing model in which police were deployed, not according to static assignments, but in accordance with where the crime was. The idea was to have the police presence surge when crime first reared its head — to stop spikes of lawlessness before they could gain momentum.
These innovations were not driven by the Department of Justice and the federal government. They were driven by experimentation at the state and municipal level.
The drastic improvements this portended for civil rights cannot be overstated.
African Americans, for example, suffer from murder and other violent crime disproportionately compared to their numbers in the overall population.
The steep drop in murder saved tens of thousands of black lives. The commensurate drop in other violent crime, over 30 years, meant hundreds of thousands of crimes were not committed — that hundreds of thousands of potential crime victims were not preyed upon.
The drastic reduction of crime allowed neighborhoods to thrive in safety — economically and culturally.
The record plummeting of crime in the generation beginning in the 1990s is simply the most significant social evolution in modern American history.
I’m tempted to call it “social justice.”
It is critical to recognize that this was not just a revolution in crime reduction. It was a revolution in policing.
That, too, was driven by state and local policy, not by the Justice Department and the federal government.
It happened because, in a system of democratic federalism, local government must be responsive to citizens whose lives are affected. It must respond to people whose security and prosperity hinge on the quality of policing they receive.
Because of those developments, modern American police departments are more reflective of the communities they protect and serve than they have ever been in our history.
That is not just at the rank-and-file level. It is not just in such thriving American cities as Atlanta, with a 50 percent African-American population and a 55 percent African-American police department.
The evolution is also at the command level, as well as in the political representation to whom the commanders are accountable.
There are now in America, especially since the 1980s, more African Americans and other minority officials holding commissioner, deputy commissioner, and high-command positions in police departments than ever before.
Society is making great progress through federalism and democratic accountability. It does not need the Department of Justice and its consent decrees and its court-appointed monitors to thrive and safeguard civil rights.
The Biden Justice Department’s return to its Obama-era proliferation of civil–rights investigations and heavy-handed consent decrees is about advancing a racially divisive progressive political agenda. It is not about advancing civil rights and quality of life.
Don’t take my word for it.
In her August 13 memorandum revamping consent decrees, associate attorney general Vanita Gupta proclaimed the Justice Department’s vision that consent decrees and the monitorships they impose “promot[e] transformational change in the state and local governmental entities where they are used.”
I’d respectfully counter that the American people don’t want transformational change in their communities.
They want record-low crime. They want safe streets. They want prosperous communities.
They want a political class and legal elites who worry more about the neighborhoods that are victimized by crime than about criminals and political narratives touting “systemic racism.”
That is the foundational canard behind the crusade to remake policing through federal consent decrees.
We must know that this political narrative is specious.
The criminal–justice system is dominated by graduates of elite American law schools who overwhelmingly identify as political progressives.
No small thanks to the Federalist Society, constitutional conservatives who care deeply about civil rights and equal protection under the law are also well represented.
The notion that these groups, that our profession, would abide a justice system that is racist to its core insults the intelligence of all of us — of every fair-minded American.
Yet, that notion is the premise for the progressive project of “transformational change.”
The political nature of the crusade is blatant. It fits a familiar pattern:
Some tragic loss of life occurs in a racially charged incident involving the police and a suspect. It is often not apparent that any civil–rights violation occurred. Instead, we are expected to infer a constitutional travesty based on nothing other than the race of the suspect. And that’s even if, as is often the case, the race of at least some of the police is the same as the race of the suspect.
It quickly becomes clear that there is no constitutional violation. But that does not matter to the Justice Department — it didn’t in the Obama years, and it doesn’t in the Biden era.
Rather, the Justice Department slipstreams behind the heated political rhetoric and media-churned racial controversy, announcing a “pattern or practice” investigation — suggesting that the nation’s police departments are plagued by structural departures from constitutional norms, even if DOJ cannot actually prove a civil–rights criminal prosecution.
Of course, states and municipalities cannot afford to go toe-to-toe challenging the Justice Department and its bottomless budget.
Plus, there are often collusive negotiations between Justice Department progressives and progressive politicians. The latter calculate that a consent decree, under the guise of court imprimatur, will mandate so-called reforms that progressive politicians want to impose but wouldn’t dare campaign on in an election, in which the voters who have to live with these arrangements would decide.
One way or another, the states and municipalities cave.
A great example of this phenomenon is the George Floyd case — the prosecution in Minneapolis of former police officer Derek Chauvin for the use of excessive force that led to George Floyd’s death.
A few noteworthy data points:
Minnesota has a very progressive police department.
It is led by an African-American commissioner with a “reform” background.
As a result, the Minneapolis Police Department has extensive civil–rights training: Training in the use of force; in conflict de-escalation; in respectful attention to suspect safety.
“In my custody, in my care.” That is the guideline that those of us who closely followed the Chauvin trial closely heard again and again and again. Every cop in the department is required to log hours of such training.
In the trial, every police official who testified indignantly insisted that the tactics used against Floyd by Chauvin were absolutely against Minneapolis police training and practices — regardless of whether the suspect at issue resisted arrest.
And obviously, the state of Minnesota and the city of Minneapolis aggressively prosecuted the rogue cop. Moreover, it is equally obvious that the jury believed the police officials who uniformly testified that the rogue actions were diametrically against the way Minneapolis does policing.
Yet what happened? The Biden Justice Department could not wait to announce that it was commencing a pattern-or-practice investigation of the Minneapolis police department — as if, in the weeks of trial that drew national-television attention, we’d seen rampant constitutional violations, day after day.
The Justice Department’s response to the Chauvin trial was an exercise in situational politics, not a good-faith assessment of courtroom evidence.
In our constitutional system, our federalist system, the states are sovereign. They should thus be trusted to govern their internal affairs. That was the founding assumption on which ratification of the Constitution was premised.
Of all a state’s internal affairs, policing is the most central and consequential.
If state and local law-enforcement officials really do violate the Constitution or federal law, it is always available to the Justice Department to prosecute civil–rights cases by criminal indictment.
But the idea that it is the federal government’s role to transform the nation’s police departments is offensive.
The idea that the feds always know best is offensive.
It was not the Department of Justice and its consent decrees and its monitors that gave Americans record-low crime.
It was state and local police.
That was a historic boon for civil rights.