Abandonment of Obama-era reforms hampers quest for police accountability

The Trump administration has dismantled key federal tools for imposing accountability on police forces engaging in systemic racial discrimination, severely hampering efforts to heal the wounds of the police killing of George Floyd and the ongoing protests convulsing the country.

Under Donald Trump, the US justice department has allowed federal mechanisms designed to impose change on racist police agencies to wither on the vine. As a result, law enforcement agencies that practice racial profiling, use excessive force and other forms of unconstitutional policing are now free from federal oversight.

The most important of those tools, known as consent decrees, were deployed extensively by the Barack Obama administration in the wake of previous high-profile police killings of unarmed black men. They included the death of Michael Brown in Ferguson, Missouri, in 2014; 12-year-old Tamir Rice in Cleveland, Ohio, that same year; and the 2015 death of Freddie Gray in Baltimore, Maryland.

Under Obama, 14 consent decrees were enforced upon troubled and discriminatory police agencies. By contrast, none have been issued in the more than three years of the Trump administration.

By scrapping the use of consent decrees, Trump has effectively made it much harder for the US to recover from the turmoil roiling the nation. In the absence of federal pressure, any reform impetus will have to come from cities and states acting in isolation or from inside police agencies that are likely to be resistant to change.

Jonathan Smith, who led the special litigation section of the justice department between 2010 and 2015 and supervised numerous federal investigations into police departments including Ferguson, said the lack of federal action would drag out the current malaise.

“The protests aren’t going to die down. We have a very long summer ahead of us,” he said.

Smith said that the scrapping of consent decrees was part of a general message coming from the Trump administration that police forces engaging in brutal and racist practices were above reproach.

“It’s appalling that today’s justice department is saying that police are now immune from any consequences of their bad conduct – that is terribly dangerous and corrosive,” Smith said.

The decision to scupper consent decrees was taken by Trump’s first US attorney general, Jeff Sessions. As one of his final acts in the post, in November 2018 he released a memo that so drastically curtailed the remit of the agreements as to render them moribund.

Attempting to justify the change, Sessions made clear he believed policing should be left to local and state law enforcement bodies, no matter how brutally they treated black and other minority citizens supposedly under their protection.

“It is not the responsibility of the federal government to manage non-federal law enforcement agencies,” he said.

Sherrilyn Ifill, president of the NAACP Legal Defense Fund, said it was “astonishing the attorney general can simply decide to leave on the shelf a critical tool that would allow us to address this terrible problem”.

She added that Sessions’ decision to abdicate from federal government oversight of unconstitutional policing was in tune with his longstanding opposition to tackling systemic racial discrimination within policing.

Sessions’ approach has been continued by his successor as US attorney general, Bill Barr. “Sessions and Barr embrace the ‘bad apples’ theory of police brutality – they simply won’t accept the concept of systemic discrimination in police departments,” Ifill said. “This is catastrophic. Prosecuting police officers, one by one, will not result in fundamental change.”

Consent decrees fall under the 1994 Law Enforcement Misconduct Act that was passed by Congress in the wake of the brutal beating of Rodney King by Los Angeles police three years earlier. The statute allows the US government to sue local police agencies that engage in “patterns and practices” of unconstitutional policing and fail to comply with essential reforms.

The provision has made a profound impact on several of the most troubled police forces in the country, including Baltimore following the death of Freddie Gray. The 25-year-old black man died in April 2015 after he sustained spinal injuries while being transported under arrest in a police van.

Since it was introduced, Baltimore’s consent decree has been credited with bringing critical change to policing in that city.