Illinois Issues: What Are Consent Decrees?

Gov. Bruce Rauner says he wants to get the state out of legal agreements called consent decrees. The deals are a big part of the reason the government is still operating without a budget; they also impact the lives of thousands of Illinois residents. But unless you are affected by one, you've probably never heard of them.

Earlier this month Republican Gov. Bruce Rauner marked the anniversary of his first year in office by giving several reporters who cover state politics one-on-one interviews.

The governor used the sit-downs to try and shape the narrative of his first year and hint at what his priorities would be in his second year in office.

“One of the big things we'll be pushing — we have another round of legislation that we’ll be proposing soon — and one of them is to get out of all these court orders and consent decrees. They are causing us to spend money on certain things beyond what anybody wants,”  Rauner told The News-Gazette. 

Consent decrees are a big part of what has kept state government running the last seven months without a budget. They are also a big part of what is putting Illinois at spending levels billions higher than the revenues it currently has to cover the costs. During his State of the State speech, Rauner said that his administration has already started the process of “getting out from under” the state’s consent decrees. Still, most Illinois residents probably have no idea what the governor was talking about when he said this.

Defining Consent Decrees

What are consent decrees? Simply put, they are agreements the state makes to resolve lawsuits. When Illinois is sued for violating federal law or impeding a group’s civil rights, the state can opt to work out a plan for improvement with the group that brought the suit. An expert monitor is appointed to assess the situation, and a judge oversees progress on the plan. If the state falls short, the judge can require it live up to the deal under the threat of being held in contempt. That is what happened last year when the state was ordered to continue funding services covered by various consent decrees, even though there was no budget in place.

At a recent speech at the City Club Of Chicago, Senate President John Cullerton, a Democrat, explained consent decrees like this: “Over the years, the state’s been sued — over decades — in various areas of human services (and) health care. And the state, instead of going to trial and losing, has entered into consent decrees. And as a result, we have to provide certain services.”

According to the governor’s office, Illinois is currently involved in 80 consent decrees. Many date back to the 1970s, 1980s and 1990s. One from the early 1990s seeks to address problems in the state’s Department of Children and Family Services. A handful of more recent ones deal with the rights of people with developmental and physical disabilities and people with mental illnesses. These agreements are geared toward letting them have more say about where they live and what kind of treatment they receive. Another consent decree looks to improve conditions in the juvenile justice system by addressing safety concerns and ensuring kids in the state’s custody get proper health care and education. Yet another ensures access to health care for children in Cook County under the Medicaid program. And the list goes on.

Contrasting Views on Consent Decrees

Perceptions of consent decrees vary widely. To advocates, they are more a human rights issue than a fiscal one. To some would-be government reformers, they are vague and often impossible-to-achieve mandates that tie the hands of elected officials for years, especially when it comes to setting priorities in tough budget times. To many of the individuals they affect, consent decrees have been the keys to a functional and healthy life or a means of enforcing their legal rights regardless of the way current political winds are blowing.

Despite these strong views from stakeholders, it’s likely that if you don’t know someone who is affected by a consent decree, you’ve never heard of them. “Unless one has a family member who is directly involved, unless one is suffering or being denied some fundamental right or service one’s self, it’s very hard I suppose to understand or to feel a sense of urgency about those issues. And that certainly happens for elected officials as well as average citizens,” says Ed Yohnka, communications and public policy director for the ACLU of Illinois. Yohnka’s organization gives legal representation to plaintiffs for five consent decrees at the state level.

Rauner’s focus on consent decrees came as a surprise to advocacy groups like the ACLU. Shortly after his comments made news, Yohnka fired back in a written statement: “Governor Rauner should know that adherence to terms of a consent decrees is not a political option to be debated in the media. These agreements exist because the state violated the law — often over decades — in ways that impose significant harms to our clients and others in Illinois.”

After pushback from groups like the ACLU, the governor’s office clarified that he did not intend to end consent decrees by skipping out on them. Instead, he says he plans to bring Illinois into compliance with the agreements, so that the state can ask the judges overseeing them for release.

In that, Yohnka says he and Rauner share the same goal. “In all of these, obviously, what the plaintiffs (and) what lawyers from the ACLU really want is for the government to come into compliance, and for these decrees to be able to go away as management tools, and instead just to have these services and these laws be followed without the intervention of the courts.”

But calling that an ambitious goal would be an understatement. Take the DCFS consent decree, which has been in place for decades and has no specific end date.  Yohnka says DCFS has made substantial progress under that plan. The number of children in the state’s care has been reduced substantially as have caseloads for frontline workers. That progress has slipped in the last few years as the department has seen cuts to its budget and a revolving door of directors. “There’s never been a moment when the state has been in complete compliance, where you’d sort of see an exit point.”

Why is it so difficult to resolve consent decrees? In Illinois, they have typically come after years of underfunding or neglect in a certain area of government, and the scope of what they seek to accomplish is often broad.

“The very systems themselves become so dysfunctional and so problematic that the only way in which to address the harms is to really do fundamental reforms,” Yohnka says. “And one of the things that is often a lever for creating that change is to have the power of the federal courts overseeing the change in order to ensure that it actually is done.”

Case Study: Ligas v. Norwood

In 2011, Illinois entered into a consent decree that came out of a case called Ligas v. Norwood. That agreement requires the state to find community placements for anyone with a developmental disability living in an institutional setting who would rather move into a setting with fewer people.

“Illinois, before we filed this litigation ranked 50th in the country with respect to serving people with developmental disabilities in small community settings. We were dead last. We tried to negotiate to get the state to make changes, and they didn’t,” says Barry Taylor, vice president of the Civil Rights Team at Equip for Equality. Taylor’s organization, which advocates for people with disabilities in the state, partnered with the ACLU on the lawsuit.  “This consent decree was only brought when the state wouldn’t do voluntarily what it was required to do under federal law. And now that we have the consent decree, change is happening,” he says.

The Ligas decree includes numerical goals the state must meet for moving people from institutions into community settings. “The Ligas decree has very specific requirements that must be met before the consent decree will end. The state has not done that yet, they have more to go,” Taylor says.

It also requires that the state offer placements to 3,000 people who were not getting services. Two of those people are brothers, David and Dominick Kimmel.

Meet the Kimmels

Both of the Kimmel brothers have autism and epilepsy. When Dominick was 18, he also began showing signs of bipolar disorder. “Dominick got very aggressive. We had to call the police a lot,” says his mother Danette Kimmel. Dominick was participating in a day program, but Danette often had to come pick him up because of his aggressive behavior.

She and her husband, Craig Kimmel, sought help through a state crisis care program.  She says she soon realized, “Wow. We’re in a really tough spot. No one’s going to take him.” Both Kimmel brothers spent years on a state waiting list for care.

Danette had been certified in a behavioral therapy program for autism when her sons were little. She worked with crisis care to create a treatment plan for Dominick, and became his primary caregiver.

Meanwhile, the couple both continued to work, albeit from home some of the time. “I can’t tell you enough how stressful it was on our daily lives — [financially,] emotionally, physically. It was just deteriorating the whole family,” Danette says. It was also a strain on the couple’s marriage. “We can’t get a babysitter. And we can’t leave them alone even though they’re 18 years old. So we never had the pleasure of going out for dinner and going for a walk.”

Dominick’s aggression did not improve and the Kimmel’s feared for the safety of everyone in the household. He would try to run away. He threw punches, and tried to choke others. Once, he almost pushed his brother down the stairs.

Danette says of that time: “Couldn’t you see us on the news? Oh there was a bad situation with an autistic man living at home who beat up his father and his disabled brother. I mean, we would have been on the news. And people would say, ‘why didn’t anyone intervene? Why didn’t anybody help?’” The couple had reached out to lawmakers and officials at the state and federal level countless times — writing letters, making calls and even inviting them over for dinner.

Eventually, help did come. Under the Ligas consent decree both David, who is 24, and Dominick, who is 26, were able to move into group homes. Dominick now lives in Romeoville in a home with three other residents, and David lives in Elk Grove Village in a home with five other residents. Danette and Craig live in Villa Park and see both their sons often.

“Because that case went through, it opened up a lot of doors for people like my son Dominick, who needed to be placed. It opened up a lot more placements. The state had to fund more and open up more spaces,” their mother says.

She says after the care he has received in his new home, Dominick is a “new man.” He is now able to participate in a day program that offers exercise, art projects — which he especially likes — and an opportunity to socialize. David plans to enroll in classes at Harper College. He plays basketball and is looking for work.

“It’s giving them their independence. Their self-worth their … dignity basically — to be treated just like anybody else,” Craig Kimmel says.  “They don’t realize they’re different. They think they’re the same as anyone else, and that’s how they want to be treated.”

The Kimmels’ Case in Context

Advocates involved in consent decrees highlight success stories like the Kimmels’ experience, but they say that the agreements are particularly important when things are not going as they should. Yohnka points to the recent problems at DCFS, including news reports of mistreatment of children in the state’s custody. Because the consent decree is in place, he says there was no need to file a new lawsuit. The ACLU filed a motion with the court overseeing the decree, and a plan was put in place to address the most immediate concerns. Experts were brought in to assess the situation and make more long-term recommendations.

Yohnka says that new plan is a “testament” to how a consent decree can be a “trip wire” for quick action when there is a problem in an agency. “The judge can play both the role of being a hammer and forcing compromise, but also just the role of sort of guiding and shaping and helping people think about where they are and whether or not the position that they’re staking out is really the one that they’d want to defend in a legal brief,” he says.

Some of these very things advocates see as positives about consent decrees, such as the broad scope of issues they often seek to address, detractors say are problems.

“There are a lot of incentives [for government] officials to agree to things that either they don’t have to pay for, [that] don’t have to be done until they’re out of office, that actually can never be done, or which are entirely idealistic and quite beyond — in many ways — what human beings can do,” says Ross Sandler, a law professor at New York Law School.

Sandler has seen consent decrees from both sides. Over the course of his career he has represented plaintiffs and worked for a government that was a defendant.  He has a background as an environmental lawyer, and he served as commissioner of the New York City Department of Transportation. He says consent decrees can last for decades and tie the hands of the people voters elected to oversee government agencies and provide services — to the level required by law but also in the ways they see as best.

“You make a plan dealing with thousands or tens of thousands of people all in need, you may have to make a lot of adjustments along the way. You should be able to make those adjustments without having to go back to the plaintiffs and deal with the judge. That’s why we elect, every four years, elected officials. We expect them to be smart and constantly manage these programs not co-manage with plaintiffs’ attorneys and judges.”

He notes that the decrees also keep these management decisions out of the public eye because they are negotiated amongst a small group, which often does not include someone directly accountable to voters, and the average voter isn’t even aware they exist. “The governor might make different choices. One choice the governor would not likely make is to let these people starve in the street, but they might make different kinds of choices than were made … in the consent decree. And that’s what the problem with the consent decree is, that it locks in the past decisions.”

Rauner argues that this lack of flexibility in managing government is part of the reason Illinois should work to terminate its consent decrees.  “Let’s not have courts tell us how to run our government. Let’s just do the right thing, ” Rauner says. So far, Rauner has not released the details of his plan.

If the state is released from its consent decrees, but the same problems persist in agencies, advocacy groups would likely bring forward new lawsuits. “At the end of the day, there are these federal laws that the state has to comply with,” says Laura Miller, managing attorney of Equip for Equality’s Civil Rights Team.  She says that while some might portray consent decrees as making the state spend more than it should on human services, “It’s getting the state to do the minimum, really.”

Sandler disagrees with the idea that they are only compelling governments to do the minimum required by law. “On the plaintiff’s side, they’re vindicating important rights, and they should,” he says. But he says governments often give up to quickly in legal battles, in part because they don’t want to admit they may not be living up to the letter of the law. “It’s hard for a government to say, ‘Well, we haven’t done right by people who have mental disabilities.’ So they’re quick to consent, and then they don’t negotiate hard enough. So between the idealism and the passion of the plaintiffs’ attorneys, and the willingness of government not to fight, you end up with decrees that are overly broad, last too long and cost too much.”

Sandler says he doesn’t oppose all government consent decrees.  But he says governments should try to renegotiate existing decrees that are too broad, and make sure any in the future have a timeline and clear path toward sunset, so they don’t become indefinite commitments. He also suggests that legislators be required to approve consent decrees, since they will ultimately have to find a way to pay for them out of a government’s budget.

Cullerton says Rauner has the option of trying to convince the judges overseeing consent decrees to change them or release the state from them, but he says he wouldn’t support such efforts. “There’s probably a lot of good reasons for those consent decrees. Right? That’s why there was an agreement. And so I don’t see why we need to do that.”

Even though Rauner has said his goal of extracting the state from consent decrees may not mean cuts to services, his comments worry the Kimmels. “Unfortunately they always look to social services to be the first place to cut,” Craig Kimmel says. “We would stand up and fight to do everything we can to make sure they don’t touch this consent (decree.)”

After the interview with Illinois Issues, Danette was going to pick up Dominick for a family outing to see Disney On Ice. “If we were to try to see Disney On Ice three years ago, we would have had to call a security guard and left. I mean Dominick would have been really aggressive and overwhelmed. But now, we’re able to do that,” she says.

The family has come a long way, and she and Craig both say the Ligas consent decree made it possible. “Our boys are very happy, and there was a happy ending to this,” she says.

Illinois Issues is in-depth reporting and analysis that takes you beyond the headlines to provide a deeper understanding of our state. Illinois Issues is produced by Springfield public radio station WUIS.