The Most Powerful Weapon for Police Reform Is Back

Minnesota Police officers stand guard outside the Brooklyn Center Police Station after a police officer shot and killed Daunte Wright. Photo: Kerem Yucel/AFP via Getty Images

On the heels of Derek Chauvin’s murder conviction, Attorney General Merrick Garland announced that the Justice Department is launching a “pattern or practice” investigation into the Minneapolis Police Department. Pattern or practice probes are often a precursor to court enforced reform agreements between the DOJ and local law enforcement agencies, which require them to comply with a list of goals before federal oversight can be lifted. A court-appointed monitor, usually a DOJ attorney in its civil rights division, is responsible for overseeing the goals and evaluating the department’s progress. President Joe Biden campaigned on a promise to revive pattern-or-practice investigations – as well as subsequent reform agreements – after the Trump administration suspended the program in 2017.

Congress first gave the Justice Department the power to enter reform agreements in the 1994 crime bill drafted by Biden following civic unrest in Los Angeles two years earlier over the LAPD beating of Rodney King. Many police accountability experts say the reform agreements – both consent decrees and settlement agreements – are the most effective way to achieve long-term police reform.

“If you have a troubled police department, this is how you do it,” said Sam Walker, an expert in police accountability and professor emeritus at University of Nebraska at Omaha. “Consent decrees and settlement agreements really offer systemic reforms for entire police departments. Just photocopy some decrees and change the wording and there you are.”

Under Barack Obama, the DOJ opened 25 pattern or practice investigations, at least 22 of which resulted in court-enforced reform agreements. In those agreements, monitors set reform benchmarks for departments over the unlawful use of force, bias in policing, mental health and crisis intervention, language access for non-English speakers, and more. Sometimes departments take just a few years to achieve compliance, but other departments take much longer: The Oakland Police Department, for example, has been under a consent decree since 2003.

Reform agreements have long-term staying power, according to Walker, and there’s no better example of that than the past four years. “What Jeff Sessions did early in 2017, was to suspend the program. There were no new investigations. No new consent decrees,” he said. “There was a lot of worry that the local U.S. attorneys who participated in this process would undermine existing consent decrees.” But Walker hasn’t seen any evidence that the Trump administration’s halt on new investigations or agreements undermined the agreements that were already in place. He points to Newark, New Jersey where the police department has been under consent decree since 2016. In 2020, no Newark police officer fired his or her weapon, a feat that would have been unthinkable a few short years ago.

“That told me that the U.S. attorney did not back away, that the reforms continued and they worked,” Walker said. “The new policy, the new training, the new supervision – all overseen by the monitor – stayed in place.”

Advocates of reform agreements often point to Connecticut’s East Haven Police Department as an example of their effectiveness. Though pattern or practice investigations look into systemic wrongdoing, they are often triggered by individual incidents. The DOJ started investigating the department in 2009, after officers took decorative license plates from the wall of an Ecuadorian store, claiming it was against the law to have old license plates, and proceeded to arrest a priest who witnessed the incident. A DOJ pattern or practice investigation followed and led to the arrest of four officers for a range of civil rights abuses. All four served time in prison. In 2012, the department entered a consent decree agreement. Over the next five years, the makeup of the department changed radically, as the city pushed hard to recruit Spanish-speaking officers and a new police chief encouraged the reforms laid out by the federal monitor.

“I think people felt uncomfortable going out. They were scared to get harassed,” Paul Matute, the son of the owners of the Ecuadoran store, told the Washington Post in December. “People were afraid to come to the store because they thought they’d get pulled over for being Hispanic. Now people are comfortable. That would never happen again in this town.”

It’s often said that reform agreements, at their core, are an attempt to change the culture of a department, a task some critics on the left say is impossible without radically changing the fundamental nature of policing. Others say that the reforms in cities like Pittsburgh didn’t stick. The East Haven consent decree was one of five Obama-era agreements that expressly targeted discrimination against the Latino community. A similar agreement on Long Island has taken longer to realize. The DOJ opened an investigation into the Suffolk County Police Department in 2009, shortly after a group of white teenagers who called themselves the Caucasian Crew murdered Marcelo Lucero, an Ecuadorian immigrant. In December 2013, the SCPD entered a settlement agreement with the DOJ and, one month later, Sgt. Scott Greene, a 25-year veteran of the force, was arrested for, and eventually convicted of, robbing Latino drivers during bogus traffic stops. Since then, progress has been slow. The federal monitor’s last publicly available assessment, completed in October 2018, stated that the department has yet to reach full compliance in bias-free policing and, seven years after the settlement agreement was inked, community leaders say that real progress has been nominal.

“What was identified in the DOJ’s settlement agreement are things that we’re still pushing for them to improve today,” said Irma Solis, the Suffolk County director of the New York Civil Liberties Union. “They may have some improved policies in place, but they haven’t made much progress, in my opinion, in making sure that those policies are well known by those who are expected to follow them.”

Earlier this month, a federal court cleared the way for a class-action lawsuit to proceed against the SCPD. Filed on behalf of 21 unnamed Latino plaintiffs in 2015, the suit accuses the department of subjecting “Latinos to an ongoing policy, pattern, and practice of discriminatory policing.” Judge Lois Bloom’s recommendation for class certification gives credence to that claim. “The SCPD has failed to collect reliable data and has failed to assess its data to prevent biased policing,” she wrote in her decision. Last year, the plaintiffs submitted an expert analysis by Michael Smith, an expert in racial profiling and police policy at the University of Texas San Antonio, which said that as recently as 2020, the SCPD was not collecting data “that is necessary for an appropriate racial or ethnic disparity analysis of these traffic stop outcomes.”

With nearly 2,500 officers, the SCPD is one of the largest local law enforcement agencies in the country, which might partly explain why it has taken so long to comply fully with the settlement agreement. (For comparison, East Haven’s force numbers just over 60 officers.) But police reformers in Suffolk are up against a department with a long history of corruption and a powerful police union —  Donald Trump felt comfortable enough in Suffolk County to encourage cops in a speech he made at a police academy graduation address to rough up suspects. (The SCPD almost immediately distanced itself from the his remarks.)

“There’s this pervasive history of racially biased policing by Suffolk County, which [SCPD] has refused to acknowledge or only begrudgingly,” said José Pérez, an attorney for LatinoJustice, which filed the class-action suit. “Suffolk County routinely failed to collect the appropriate data and failed to analyze the data. Had the department undertaken these steps, as the settlement agreement required them to do, they might have been covered.”

The Most Powerful Weapon for Police Reform Is Back