Consent Decrees

A month after taking office, United States Attorney General Jeffrey Sessions transmitted a memorandum listing principles to be followed by all Department of Justice personnel, and by all other agencies that receive federal funding.  The stated principles mark a shift in focus from the prior administration.  Among other things, they declare that “individual misdeeds of bad actors should not impugn” the work police officers perform “in keeping American communities safe.”  The memorandum specifically requires Department of Justice leadership to review all existing or contemplated consent decrees to make sure they comply with the Attorney General’s memorandum.

So, what is a consent decree?  What do consent decrees do, and why might the United States Attorney General care about them?

A consent decree is a court order that resolves a case in an unusual way.  Consent decrees do not involve an admission of guilt or liability.  Instead, they usually require a party to accomplish certain identified objectives within a specified time.  Critically, the court maintains supervision after the consent decree becomes a formal order so that the court can enforce it.  So, depending upon the case, a court can make sure that systemic employment discrimination ends, that illegal environmental contamination stops, and that governmental violations of civil rights do not recur.

Consent decrees have been a tool of choice in cases involving serious recurring police department misconduct.  Following reported problems with Baltimore’s police force, including the 2015 death of Freddie Gray while in police custody, the United States Department of Justice launched a civil rights investigation.  The ensuing report described excessive force, routine violations of citizens’ constitutional rights, and pervasive racial bias. 

Rather than litigating the case, the Baltimore Police and the Department of Justice negotiated a consent decree.  The decree requires an independent federal monitor to observe the department, a community task force to provide oversight, and, most significantly, changes to police policy, such as requiring instruction on bias and on the proper handling of sexual assault cases, as well as on the use of appropriate de-escalation tactics.  This is exactly the kind of consent decree that the new Attorney General has targeted for review.

But consent decrees cannot just be agreed to by the parties and then ordered by the court. The court must first make sure that the proposed decree is fair, adequate, and reasonable, that it is in the public’s interest, and that it is not the product of collusion.  Judges often hold public hearings and collect written comments if a proposed consent decree pertains to a matter of public interest.  The federal judge reviewing the consent decree in the Baltimore police misconduct case conducted a public fairness hearing, and also accepted comments in written form. 

But the new United States Attorney General still expressed “grave concerns” that the proposed decree would “reduce the lawful powers of the police department.”  The Judge, James Bredar, disagreed.  He said that the decree was “comprehensive, detailed, and precise.”  He also found that the problems the decree were supposed to address were “urgent.”  So, he approved the negotiated consent decree, despite the objections of the Attorney General.

The situation involving the Baltimore consent decree is unusual.  That decree had been formally approved by the parties before the Department of Justice’s management changed.  Other consent decrees negotiated by the prior Department of Justice may well be set aside.  This will lead to protracted litigation instead of early settlement, shifting resources from curing problems to debating their existence.

United States Supreme Court Chief Justice Earl Warren once said, “Concepts of justice must have hands and feet to carry out justice in every case in the shortest possible time and the lowest possible cost.”  It seems that both the time and the cost to achieve justice in certain cases may have just grown.