When Brett would sit down with officers during the investigation, she recalled, the first question she would get is whether she had ever been a police officer or served in the military.
“There’s a sense among the rank-and-file that, you don’t know what I’m dealing with if you’ve never been here,” said Brett, who now is the legal director at the American Civil Liberties Union of Kansas. “Law enforcement does not like people coming in who have no law enforcement experience and telling them how to do their job correctly.”
At Major Cities Chiefs Association conferences, former chief Dennis Nowicki would often hear police chiefs from around the country express concerns about the Justice Department coming in and doing an investigation, troubled by the prospect of having people with no policing background run the probes.
When Nowicki retired as chief of police for the Charlotte-Mecklenburg Police Department in 1999, he wanted to be that law enforcement voice during federal investigations. He served as a use-of-force expert for Justice Department consent decrees in Cincinnati, Detroit, the District of Columbia, Los Angeles and New Orleans, as well as in Tulsa, Oklahoma, and the U.S. Virgin Islands. He also served on a handful of federal monitoring teams.
“If you at least know a little bit about law enforcement, you know what questions to ask, know how to get an honest answer,” he said.
Once they complete an investigation, Justice Department attorneys write up a report that outlines their findings, compares their observations with the law and offers a series of solutions. If an investigation concludes in six to nine months, that’s fast, Smith said.
If the Justice Department finds that there have been constitutional violations, federal officials will sit down with a judge and the jurisdiction to negotiate a court-enforceable consent decree agreement.
Consent decrees outline needed changes to use-of-force policies, officer training, transparency and community engagement. Police departments must comply with those measures for several years before the jurisdiction is released from federal oversight.
Police departments sometimes resist the probes. The Ferguson, Missouri, City Council initially rejected the 2016 consent decree because of what leaders said would be heavy costs. The Justice Department sued the city the next day. The city signed onto the 127-page consent decree a month later.
Once the parties agree, a judge appoints a federal monitor who tracks and issues public reports on the jurisdiction’s progress. The first year of a consent decree can be difficult, said del Carmen, as the police department slowly accepts the work ahead and its lack of autonomy.
What makes a successful consent decree is a forward-thinking police chief, an open-minded and dedicated monitor, and an active judge, said Jonathan Aronie, the federal monitor overseeing the New Orleans Police Department’s consent decree.
New Orleans, which has been under a consent decree since 2012, created a peer-intervention training program during its consent decree that has become a national model used in more than 100 police departments.
In Newark, New Jersey, which has been under a consent decree since 2016, officers did not fire a single shot in 2020, nor did they have to settle any police brutality cases.
“They should stop thinking of a consent decree as a punishment,” Aronie said. “They should think of it as an opportunity.”
The review process is lengthy and complex. There are hundreds of general orders in every department that deal with issues ranging from how to handcuff to what use of force is acceptable in certain situations. If the department decides to change a policy, it requires the approval of the federal monitor and the Department of Justice.
Before Nicolle Barton became the consent decree coordinator in September 2019, the Ferguson Police Department did not have a dedicated person on staff to manage compliance for three years. Instead, the task often fell to the chief of police or other department leaders, who had to handle it in addition to their regular duties.
The department also had to contend with high turnover after the consent decree was issued, Barton said, but those officers who remained were dedicated to making the department better. That includes Chief Jason Armstrong, she said, who joined the department in 2019.
“A lot of people call it the Cadillac of consent decrees,” she said. “It’s very comprehensive for such a small municipality, and not a lot of resources to get it done. Our officers are really taxed.”
So far, the department has new use-of-force and body camera policies in place. The department is also working with a software company to develop a new data-entry system for use-of-force instances. Before, the department filed those by hand and stuck them in manila folders.
Recordkeeping is often a shortcoming of police departments, said Ben Horwitz, who served as the New Orleans Police Department’s first director of analytics. Under the consent decree, he built a modern data-entry system that helped the department better understand how officers were interacting with the public. It allowed the department to view its performance in real-time and gave the public a look at policing.
Often, data is captured in silos, on paper, unaggregated, offering scant insight into a department.
“You can’t do that captured on paper,” said Horwitz, co-found of AH Datalytics, which builds data software for police departments. “You can’t do that captured in a narrative.”
Community engagement and new training were slowed because of the pandemic, but Ferguson’s federal monitor in February commended the department for its continued dedication to the consent decree, saying it has made “steady progress.”
When the Justice Department officially outlines the civil rights violations of a police department, it can be validating for members of the community who have tried to shed light on those issues for decades, said Mary Howell, a New Orleans civil rights lawyer. “You’re no longer dealing with denial,” she said.
While changes to policing, forced through a consent decree, are essential to improving local law enforcement, activists say residents should be given the ability to exercise additional oversight. If there is no community oversight, independent of internal police investigations, there will be backsliding at the department, Howell said.
“It’s an uneven process. You’ve got decades, if not generations, of culture that you’re trying to change and it’s not going to change quickly.”©2021 The Pew Charitable Trusts. Visit at stateline.org. Distributed by Tribune Content Agency, LLC.