Op-Ed: Local police departments can’t reform themselves. Bring on the feds

Atty. Gen. Merrick Garland’s announcement Wednesday morning that the Justice Department is starting an investigation into the Minneapolis Police Department for unlawful policing practices is one step toward systemwide reform. This is a welcome change from the Trump administration’s refusal to use this federal power.

The reality is that it is very difficult for cities to reform their own police departments. Their instinctive reaction is defensive, even in response to egregious police misconduct, like Derek Chauvin’s killing of George Floyd. The first statement put out by the Minneapolis police the day after Floyd’s death was not about the need to investigate. Instead, it said, “Man dies after medical incident during police interaction,” suggesting that nothing happened between Floyd’s arrest and his transport to the hospital.

Police unions often exercise significant political influence and are obstacles to major changes. High-profile instances of police abuse might trigger efforts at reform, but as public attention wanes, reform efforts fade as well.

That’s why using federal authority to compel reforms in police departments is critical. The Justice Department can sue local and state governments if there is a pattern of constitutional violations and seek appropriate remedies. In most instances, the department’s investigation forces cities to enter into a settlement and a consent decree, without going through protracted litigation. Jeff Sessions, former attorney general in the Trump administration, however, essentially banned the use of consent degrees, saying they harmed police morale.

These consent decrees are enforceable through the federal court, usually with a court-appointed monitor who oversees the implementation of the reforms. Typically, these agreements include provisions to stop racial profiling, improve investigations of accusations of excessive force and reform police discipline. The court can impose sanctions on the local government if it does not carry out the terms of the agreement.

The Justice Department has used this authority on many occasions — such as in Baltimore, Cincinnati, Los Angeles, New Orleans and Pittsburgh — to reform police departments. In each instance, major changes in policing resulted.

A study in 2017 examined 23 police departments that had been subject to consent decrees and found that “civil rights suits against these departments dropped anywhere from 23% to 36% after a federal intervention.” Consent decrees overseen by a monitor have led to a 29% decrease in civilian fatalities at police hands.

The Justice Department investigated the Los Angeles Police Department after the Rampart scandal came to light; it involved police violence, their planting evidence on innocent people and lying in court to gain convictions. The department informed the city that it would sue unless a settlement was reached.

In November 2000, Los Angeles entered into a consent decree that affected almost every aspect of policing in the city. The decree created a database to track police use of force and police discipline, among other actions. It required police to record information with regard to every stop. It changed how police use of force was to be investigated. It altered control of the anti-gang units; it was an anti-gang unit in the Rampart Division that led to the scandal. A monitor was appointed and for 12 years, until 2013, a federal judge oversaw the operation of the consent decree.

The Harvard Kennedy School did a detailed study and found that the consent decree significantly changed policing in Los Angeles. The study found, for example, that serious use of force incidents decreased by 15%.

Did it solve all of the problems of the LAPD? Of course not. But by any measure it instituted reforms and improved policing in a city that had a long pattern of police misconduct. For those who worry that enforcing a higher standard of police behavior may hinder crime fighting, it is worth noting that crime declined significantly in Los Angeles during the years that the consent decree was in effect.

There is clearly a need for additional federal legislation to reform policing — to outlaw practices like the use of the chokehold, to expand the ability to hold officers and the cities liable for abuses, to increase transparency and monitoring of police behavior. Getting the Justice Department back into this work is a crucial first step after four years of neglect by the Trump administration.

Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion. He is the author of the forthcoming book, “Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.”