On March 31, 2017, Attorney General Jeff Sessions issued a two-page memorandum announcing a dramatic shift in the Department of Justice’s (“DOJ”) approach to reforming American police departments. The memorandum stated that “[i]t is not the responsibility of the federal government to manage non-federal law enforcement agencies.” It declared the “[t]he misdeeds of individual bad actors should not impugn or undermine the legitimate and honorable work that law enforcement officers and agencies perform in keeping American communities safe.” And, it ordered the deputy attorney general and associate attorney general to begin a review of existing and contemplated agreements that the DOJ had reached with American police departments during the Obama administration.
In issuing this short memorandum, Attorney General Sessions has signaled a drastic reorientation of federal priorities on police reform. It appears that the federal government will no longer utilize its statutory authority under 42 U.S.C. § 14141 to oversee problematic police departments, out of fear that such regulation may put at risk “[t]he safety and protection of the public” and the safety of police officers who “perform uniquely dangerous tasks.” Sessions reiterated these positions in an op-ed published in USA Today earlier this month.
While the empirical evidence on the effect of federal intervention on officer morale, officer aggressiveness, and crime rates is admittedly mixed, there is little doubt that federal intervention has combatted patterns of unconstitutional misconduct in many of the nation’s largest police departments. In doing so, federal intervention has increased public trust in law enforcement and protected the civil rights of thousands of Americans. By publicly announcing its intention to abandon enforcement of § 14141, the Trump Administration threatens to upset decades of progress in police reform.1
I. Why Federal Police Reform Matters
Since 1994, the DOJ has had the authority under 42 U.S.C. § 14141 to seek equitable relief against local and state police departments engaged in patterns of unconstitutional behavior. Throughout the Clinton administration and the Obama administration, the DOJ used this power to investigate and reform some of the most troubled police departments in the country. Even during the early years of the George W. Bush administration, the DOJ still served as a vital check on local police behavior. In total, the DOJ has used §14141 to investigate over sixty police departments and to reform over thirty departments.2
The best available evidence suggests that, while federal reform efforts are not without their flaws,3 § 14141 is generally effective at reducing patterns of unconstitutional misconduct.4 Part of the reason for its success is that § 14141 combats the organizational roots of police misconduct. Rather than punishing individual bad actors, § 14141 empowers the U.S. Attorney General to force local police departments to make significant policy and procedural changes aimed at curbing wrongdoing. The statute also permits federal district courts to assign external, independent monitors to oversee the reform process.
To justify his decision to reduce enforcement of § 14141, Attorney General Sessions has argued that federal police reform is a trade-off. Even if it does contribute to more constitutional policing, it does so at the expense of officer morale and public safety. Sessions’ DOJ further reiterated this concern when it unsuccessfully attempted to block the implementation of the federal consent decree between the United States and the Baltimore Police Department, negotiated by the Obama administration. At its core, Sessions’ objection raises an empirical question: does federal intervention reduce police effectiveness, thereby contributing to an increase in crime rates?
The evidence on this front is mixed. A recent empirical examination found that § 14141 interventions are associated with a statistically significant uptick in certain crime rates, relative to unaffected municipalities.5 But this effect appears to be short-lived. After only a few years, the effect diminishes into statistical insignificance. This suggests that, if there is a “de-policing” effect, it may be due to officers acting with an abundance of caution in response to a new regulatory environment. Or, it may be due to civilians finally feeling empowered to report crimes accurately to local law enforcement.
Were the policies implemented as part of federal consent decrees inherently burdensome, we would expect this effect to last more than a few years. And, some cities, like Los Angeles, actually saw crime rates decrease significantly more than the national average while its police department was under a federal consent decree.
Ultimately, even if we accept Attorney General Sessions’ questionable claim that federal oversight of local police departments impairs officer morale or effectiveness, this conclusion fails to answer the fundamental normative question at stake: does this mean that the DOJ should abdicate its role in combatting patterns of unconstitutional police misconduct under § 14141?
Reforming any large organization is tough. Some members of a targeted organization may fear and resist change. They may even actively try to block reform efforts. This is true not only in police departments, but also in schools, prisons, or any other large organization. Organizational resistance is par for the course. It does not follow, though, that we should respond to this organizational resistance by abandoning federal police-reform efforts.
No doubt, there may be ways that the DOJ could improve the implementation of § 14141 so as to increase officer buy-in, reduce the probability of organizational resistance, and minimize any apparent de-policing effects. The DOJ, under President Obama, gradually took steps to do just this. Federal intervention under § 14141 is far from a perfect regulatory tool. But, it would be a grave mistake for the Trump administration to abandon its obligation to protect civil rights by failing to enforce one of the most powerful federal tools for police reform.
* Assistant professor of law, University of Alabama School of Law.
1 For a detailed account of why federal intervention into American police departments matters, see Stephen Rushin, Federal Intervention in American Police Departments (2017); Vanita Gupta & Corey Stoughton, Opinion, Undoing Police Reform, N.Y. Times, April 6, 2017, at A27.
2 Stephen Rushin & Griffin Edwards, De-Policing, 102 Cornell L. Rev. 721, 777–79 (2017) (showing investigations and settlements in apps. A & B).
3 Stephen Rushin, Structural Reform Litigation in American Police Departments, 99 Minn. L. Rev. 1343, 1408–16 (2015) (describing some of the limitations of § 14141 as a regulatory tool).
4 See, e.g., Joshua Chanin, Evaluating Section 14141: An Empirical Review of Pattern or Practice Police Misconduct Reform, 14 Ohio St. J. Crim. L. 67 (2016) (showing a reduction in use of force and civil lawsuits coinciding with federal intervention in multiple cities); Stephen Rushin, Competing Case Studies of Structural Reform Litigation in American Police Departments, 14 Ohio St. J. Crim. L. 113 (2016) (showing the success of Los Angeles).
5 Rushin & Edwards, supra note 2 (using a panel of American law-enforcement agencies and a difference-in-differences estimation strategy to show that federal intervention is associated with a temporary, but statistically significant, uptick in certain crime rates).