Under an Obama-era consent decree, Seattle was powerless to defund police last year. More such surrenders of local control to federal judges are likely as the Biden administration revives decrees.
By Eric Felten, RealClearInvestigations
June 23, 2021
When Seattle’s City Council voted unanimously to cut millions of dollars from its police budget amid the uproar over the murder of George Floyd, it ran into an unlikely roadblock: the federal government. U.S. District Judge James Robart ruled that the city couldn’t defund its own police department without his permission.
The judge was acting under the mandate granted him by a 2012 consent decree put in place after John T. Williams, a native American woodcarver, was shot four times by a Seattle police officer in 2010. The killing was ruled unjustified. The consent decree -- a sort of civil plea bargain -- was one of several with police departments across the country arranged under pressure from the Obama Justice Department as it sought to end alleged civil rights abuses by police in cities from Baltimore to Cleveland to Ferguson, Mo.
And now, after being sharply curtailed by the Trump administration, consent decrees are back. In one of his first major actions as President Biden’s Attorney General, Merrick Garland in April rescinded the Trump policy limiting them. Days later he announced an investigation into Floyd’s death, which is expected to result in a consent decree with Minneapolis.
That raises the question: Do consent decrees work? Do they help or hinder police in providing public safety? Do they protect citizens from abusive police practices?
The answer is necessarily subjective, in part because it’s hard to isolate the factors affecting crime and policing. Still, it seems clear that the record of consent decrees is mixed at best, and the surrender of local control, as in Seattle, may have a good deal to do with it.
Seattle has seen a marked increase in violent crime between 2013, the first full year its cop shop came under consent decree, and 2020. There were 52 homicides in 2020, compared with 19 in 2013. The total number of violent crimes rose by nearly 25% over that time. The increase in violent crime holds even accounting for the growth in Seattle’s population over the last decade.
Los Angeles, on the other hand, showed improvement, according to researchers from Harvard University’s Kennedy School of Government. After nearly a decade under a pre-Obama consent decree, according to the researchers, “The quality of service to residents is higher, the perception of the LAPD as fair has risen, and the use of force is down.” The LA consent decree was finally lifted in 2013.
The judge overseeing the Ferguson decree -- imposed after the 2014 police killing of a young black man, Michael Brown -- said at a “status conference” last year that “things have not gone as quickly as we had hoped and as the Consent Decree anticipated, but I believe that great progress has been made.”
A study of the Baltimore police by the American Civil Liberties Union was less positive about results of the decree imposed after the 2015 death of Freddie Gray in police custody. Aggressive cops “get caught and they pretend to go into reform mode,” said one lawyer interviewed for the report. Soon “people forget about it and they do it again.”
This month, the head of Cleveland’s police union blamed that city’s consent decree for growing gun crime and other lawlessness. “The homicide rate is up crazy,” union president Jeff Follmer said. “[H]ow about let the police do their job and maybe some of these numbers go down?”
Follmer might be onto something: The loss of local control, a defining characteristic of consent decrees, means that one of the fundamental responsibilities of local government is handled at a distance. Do police departments improve under federal control? Do citizens get the sort of policing they think is best for their communities? One might consider the recent experience of the Seattle Police Department, as effectively presided over by Judge -- and de facto Police Commissioner -- Robart.
Critics of consent decrees say the court-governed agreements hinder reform by taking responsibility away from democratically elected officials, whether a given decree has to do with law enforcement or any other issue, such as environmental regulations or the provision of special education. With authority in the hands of unelected, unaccountable judges, monitors, and commissions, change can take years, even decades -- if there is change at all.
Decrees may appear democratic, even if a federal judge does have the ultimate say-so over a department covered by one – from training policies and use of force standards, to accountability measures and when to lift a decree altogether. That’s because the judge’s rulings are usually informed by a monitor. The monitor, in turn, listens to the recommendations of a commission made up of community stakeholders.
Seattle’s consent decree did indeed establish a Community Police Commission, whose membership was supposed to be “representative of the many and diverse communities in Seattle, including members from each precinct of the City, police officer unions, faith communities, minority, ethnic, and other community organizations, and student or youth organizations.”
But it turns out that diverse membership does not a democracy make. Community representatives do not bear the same burdens as elected leaders. And their power relative to the judge is still limited, which may be an understatement. “The Commission’s reports and recommendations,” the consent decree promises, “will be posted to the City’s Website.”
David Schoenbrod, a professor at New York Law School, and co-author of the book “Democracy by Decree,” an influential critique of “What Happens When Courts Run Government,” argues that authority must be tied to representation. “The way democracy is supposed to work,” he told RealClearInvestigations, “is for key policies to be made by elected officials. They are responsible.”
Advocates for consent decrees, by contrast, argue that “local police departments can’t reform themselves,” as Erwin Chemerinsky, dean of Berkeley Law, put it in the Los Angeles Times. “Bring on the feds.”
Bring on the feds they did in Seattle, but in practice, the feds may well halt reform -- cementing long-standing police practices, and hindering lawmakers’ ability to make timely changes.
The federal investigation into Seattle’s policing that resulted in its consent decree was led by a U.S. attorney, Jenny Durkan. She came from a prominent political family in Washington state described as West Coast Kennedys. Durkan’s federal Department of Justice experience and political ambitions came together when she successfully ran for mayor of Seattle in 2017, trumpeting her role in putting the Seattle Police Department (SPD) under the consent decree. “Durkan's tenure as U.S. attorney for the Western District of Washington,” the Seattle Times wrote in an election season profile, “is the cornerstone of her campaign.”
But the city arguably paid a price for the consent decree Durkan helped secure, and then ran on – the city lost control of its ability to respond to crises involving its police department. Years of training in “Use of Force Principles,” and “Weapon-Specific Policies” mandated by the decree left law enforcement unprepared for the protests and riots of last summer. Local officials were appalled at the SPD’s use of tear gas, “blast balls” and other crowd-control weapons, and last July the Seattle City Council voted 9-0 to ban them.
The council also took up the call to “defund the police,” voting to shift millions of dollars out of the police budget. Mayor Durkan opposed the action, but the lawmakers overruled her veto. And yet, they were stonewalled. It was not police who found themselves hobbled by federal oversight. Instead, the uniformly liberal city council was. It was repeatedly blocked in its efforts to defund the police and limit the weapons that could be used for crowd control as a consequence of the consent decree.
When Seattle copped to a consent decree rather than fight the DOJ’s determination that its policing was discriminatory, violent, and unconstitutional, its police department found itself answering to Judge Robart. (Judge Robart would become nationally known for halting President Donald Trump’s executive order temporarily suspending immigration from terrorism-linked countries.)
Judge Robart declared Seattle couldn’t make changes to policing in the city without his permission, even though he admitted he might not have been an infallible expert on the issues: “I can’t tell you today if blast balls are a good idea or a bad idea,” Robart said in July 2020, “but I know that sometime a long time ago I approved them.” This matter of expertise alone is one of the problems with consent decrees.
“Last summer we asked the court to maintain the consent decree in the face of outsized police response to mostly peaceful protests,” councilmember Lisa Herbold recently wrote in a newsletter to her constituents. Now “we are faced with a consent decree that is a barrier to passage of policy regulating the use of weapons like blast balls and tear gas.” The consent decree had also become a barrier, Herbold said, “to the Council fulfilling our commitment to reduce [the Seattle Police Department’s] budget to hold them accountable.”
Judge Robart went still further. He not only blocked lawmakers from implementing policy reforms, but dressed them down for not recognizing his authority. “I have some rather harsh words for the City Council over the last six months or so,” Robart declared this past February. “I think they have lost sight of the fact that the 100 paragraphs in the consent decree are not 100 paragraphs. They are not even commitments. They are obligations, orders from this court of things that will be done,” Robart said. “And when they decide to take matters into their own hands in contravention of the Consent Decree, then they drag me into a situation that I don’t want to be in, which is telling them, ‘No, you can’t do that.'”
RCI submitted questions to Judge Robart about his control over Seattle police operations. A clerk replied: “Judge Robart does not respond to media inquiries on active matters before the court.” That may be a reasonable judicial policy, but it also means an individual governing a big city police department might go years without taking questions on how he’s doing the job.
According to Seattle’s consent decree monitor, Antonio Oftelie, the important thing is that local governments abide by the terms of their commitments. If “budget cuts erode the ability of the City to meet its basic obligations, the city may fall out of compliance with the consent decree,” Oftelie told RealClearInvestigations.
Adrian Diaz, who became Seattle’s new police chief in September, made it clear he embraces the consent decree. In February, Diaz declared that the SPD had collaborated in developing the ongoing monitoring plan under which the department’s adherence to the consent decree would be judged. He made it clear that he answered to federal authorities: “This plan formalizes SPD deliverables.”
But where does federal authority leave room for local lawmakers’ preferred policies to be tested? “Defunding” the police may be a good idea; it may be a terrible idea. But without responsibility for the outcome, legislators don’t have to answer for their role in the policy chosen. With judges dictating policy, Schoenbrod says, accountability is lost. Elected officials can say “The court made us do it.”
Michael Morley, professor at Florida State University College of Law, contends that -- consistent with Seattle’s experience -- consent decrees tend to entrench one or another set of policies and stifle change, rather than spur reforms. Such decrees in effect represent the consent not of the governed, but of the government.
Morley told RCI that state and local “government entities enthusiastically embrace decrees because the decrees guarantee spending.” Rather than being punitive, consent decrees often lead cities to increase the budgets of problem departments, spending millions on training and new technologies. The targets of consent decrees, Morley said, regularly use the agreements to secure and protect resources.
As for Seattle Mayor Durkan, her tenure having been a muddle, she announced she will not seek reelection in November. But she doesn’t blame her lame duck status on her entanglement with the consent decree. While Mayor Durkan’s office did not answer questions from RealClearInvestigations, she applauded, in an open letter to the Attorney General, his decision “to rescind the Trump Administration’s limits on consent decrees”. Even though the decree she had imposed on Seattle thwarted democratic decision-making and accountability in the city, Durkan declared such decrees had been “critical to creating new policies, more training, new investigative oversight, new civilian oversight, and more transparency in data and reporting.”
But not more democracy.