How federal consent decrees have been used in police reform across the US

The Justice Department announced Wednesday it was canceling proposed consent decrees reached with Minneapolis and Louisville to implement policing reforms in the wake of the killings of George Floyd and Breonna Taylor.

The department also announced it would retract its findings in six other recent sweeping investigations into police departments as part of a move to phase out the use of the federal oversight mechanism on local police departments at Republican President Donald Trump’s behest.

The decision to unwind the investigations is a major reversal from the Biden administration, which had aggressively used the investigations and decrees to push reforms at police departments it accused of civil rights violations.

Here’s more information on how consent decrees work and why they’ve been put in place.

What are consent decrees?

The federal government has used consent decrees after what are commonly referred to as pattern or practice investigations to address findings of civil rights violations or unconstitutional practices. They’ve been used for things like monitoring mandated desegregation in schools or addressing unconstitutional conditions in jails or prisons.

The 1994 crime bill gave the Justice Department the ability to conduct pattern or practice investigations specifically of police departments.

The investigations are not criminal. They are often triggered by high-profile excessive or fatal use-of-force incidents like the police killings of George Floyd in Minneapolis and Breonna Taylor in Louisville. But they can also be triggered by citizen complaints, or be started at the request of local or state officials.

Consent decrees are settlements of the investigation findings that do not require admissions of guilt, but put in place a court-enforced improvement plan that requires agencies to meet specific goals before federal oversight of the agency is removed.

A federal judge usually administers the consent decree and appoints a monitor to oversee and report on progress.

Who decides what’s in a consent decree?

After the Justice Department investigation is complete, and if systemic civil rights violations are found, the department’s attorneys work with local governments or police agencies to negotiate the list of reforms included in the decree.

Those reforms can cover an array of issues including policies, training requirements, data practices, oversight and other policing practices, said Alex del Carmen, a professor and associate dean of the School of Criminology at Tarleton State University in Fort Worth.

Del Carmen, who has served as a federal monitor and a special master in large consent decrees, said the DOJ attorneys and the local government or police agency most often will agree on the terms of the decree before it is sent to a judge for approval.

In the rare instance that a police department does not agree to the consent decree terms, the Justice Department has in the past filed a lawsuit to force the reforms, as it did in Colorado City, Arizona. A jury found the department had discriminated against people who weren’t members of the Fundamentalist LDS Church and put in place court-ordered reforms.

Most recently, Memphis declined in December to agree to the findings of a Justice Department investigation. The department had not filed a lawsuit in the case, and the announcement Wednesday retracted those findings.

Consent decrees had not yet been proposed in the other five retracted investigations. The now canceled consent decrees in Louisville and Minneapolis were awaiting a judge’s approval.

How long do consent decrees last?

Some decrees are designed to be completed in five years, which was the timeframe in which former President Joe Biden’s attorney general, Merrick Garland, proposed all decrees should have a hearing to decide if they should be ended.

In reality, many of the decrees last a decade or longer. The Justice Department and local officials filed a joint motion earlier this month to conclude a decree at the Albuquerque Police Department that had been enacted in November 2014. Another ongoing consent decree with the New Orleans Police Department began in 2013.

After the consent decree conditions are met, departments often also have to complete a maintenance period to make sure the changes continue.

“Consent decrees remain in effect until a department demonstrates sustained compliance with all requirements,” del Carmen said. “Progress is evaluated through regular monitor reports and agency audits. If the department fails to meet benchmarks or violates the decree, the court can hold it in contempt, impose fines, extend oversight, or mandate additional corrective measures.”

He said in cases of continued non-compliance, a court can consider the rare step of appointing a receiver- a neutral third party- to manage the department.

How is success of a consent decree measured?

Critics of police department consent decrees argue they can come with expensive tabs — sometimes in the millions — including paying the monitor. Police unions and local officials often say that money could be better used making improvements to the department and paying officers.

In Albuquerque critics have said they believe the decree failed, citing increased crime numbers.

But advocates of the federal decrees and former monitors said those numbers — crimes or raw use-of-force numbers — are not indicative of success or failure. They point to independent monitor audits that track policy compliance, to community-trust surveys and to declines in misconduct complaints.

They also say the money expended in improving training and accountability often means less payouts later in civil-liability claims against the police departments.

“Independent oversight ensures that agencies cannot ignore or backslide on required changes, even amid political shifts,” del Carmen said. “While resource-intensive, it is often argued that (consent decrees) have repeatedly produced lasting reductions in misconduct and strengthened public trust in reformed departments.”