Peter Harvey was mingling with the lawyers on both sides of the aisle when I entered courtroom 4A of the Martin Luther King Building in Newark one afternoon in September 2018. Harvey, the federal monitor overseeing Newark’s court-ordered police reform, was scheduled to issue a progress report to Judge Madeline Cox Arleo. The only other people present were five attorneys with the U.S. Department of Justice, a single lawyer representing Newark, three police officers and a pair of Harvey’s associates.
Newark’s history of toxic police-community relations came to a head in 1967, when the police beating of a black taxi driver ignited five days of fatal rioting. For decades, the police had operated with a level of impunity — especially in the black community — that led the current mayor, Ras Baraka, to refer to them as an occupying army. In May 2016, near the end of the Obama administration, the city finally became subject to a consent decree, a court-ordered settlement with the Justice Department requiring reform of the police force.
According to the timetable, the changes were to have been developed and implemented within two years. The roughly 1,100 officers on the force were to have been trained on stops, searches and arrests as well as bias-free policing within 180 days. On both scores, Harvey had requested and Arleo had granted extensions. Both revised deadlines had come — and gone. Up to that September afternoon, only a handful of the dozen or so required policies had been adopted. A few more had been approved, and the rest were pending more review. Training had barely begun.
So I was amazed when Harvey’s remarks touted the “enormous amount of work” the Newark police had accomplished and noted that the department was completing its tasks in a “significantly short period of time in comparison to other cities that have undergone policy rewrites.” This wasn’t accurate. Under a consent decree entered in 2012, the Seattle Police Department, which at the time was somewhat larger than Newark’s, had trained its 1,300 officers on stops, searches and arrests in just two years. The Cleveland Police Department had trained nearly 1,500 officers on its revised use-of-force policy less than two years after monitoring began — which Newark had not managed to do.
The most striking thing about the proceeding, however, was the Justice attorneys’ silence. They didn’t challenge Harvey’s assertion about the completion of tasks. They didn’t advocate for the people of Newark, who were paying Harvey’s nearly $7.4 million fee. They didn’t express concern that the Newark Police Division wouldn’t meet the five-year deadline for “full and effective compliance.” It was as if they weren’t even in the room.
Since first instituted during the Clinton administration, police consent decrees, when enforced, have proved to be effective tools for reforming police departments riddled with racism and bias. Cities from Los Angeles to Pittsburgh to Cincinnati have transformed their policing and improved community relations as a result.
But to work, a consent decree has to be backed by the full force of the Justice Department and the U.S. attorney general. “We had an independent enforcement obligation,” says J. Michael Diaz, who was lead assistant U.S. attorney on Seattle’s Obama-era consent decree and is now a superior court judge in Seattle. The Justice attorneys’ job, he says, was to advocate for the interests of the people of the United States “as zealously as we can.” But under the Trump administration, some court watchers say, Justice lawyers are relatively silent. Georgetown University law professor Christy Lopez was part of the Justice Department unit in charge of consent decrees from 1995 to 2000 and again from 2010 to 2017. “As the attorney on [a consent decree] case for DOJ … you’re going to have to really push people,” she says. “And right now, the attorneys know they can’t do that. … You have to get approval … from your own front office, who in these sorts of cases is going to the [attorney general’s] office. And we all know what the A.G. is going to say here.” The Trump Justice Department, these critics allege, has given up policing the police.
The videotaped 1991 Los Angeles Police beating of Rodney King was the first step toward the rise of police consent decrees, as the public came to recognize the racism and bias plaguing law enforcement agencies. In the aftermath, Congress passed the Violent Crime Control and Law Enforcement Act of 1994, better known as the Clinton crime bill. Though many of its elements are criticized today, it was also the act that authorized the attorney general to investigate and, if necessary, file civil litigation against law enforcement agencies demonstrating a “pattern or practice” of violating people’s constitutional rights. If a city being investigated yielded, it entered into a court-ordered reform agreement with Justice and hired a monitor to steward the process.
Mayor Ras Baraka attends a press conference regarding the Department of Justice's investigation of the Newark Police Department on January 20, 2015.
The Clinton Justice Department used its new tool, known as Section 14141, against Pittsburgh in 1997. Two years later, it pursued its first racial profiling claim, against the New Jersey State Police, after officers shot three unarmed black men on the New Jersey Turnpike and public attention turned to the disproportionate traffic stops of black drivers. The LAPD came next.
The decision whether to enforce a consent decree, however, was left up to the attorney general, and under the administration of George W. Bush, the instrument fell out of favor. “The Bush administration just walked away from this program,” says University of Nebraska at Omaha criminologist Samuel Walker, an expert on police accountability who has studied consent decrees for years. The pendulum swung back as Barack Obama took office. The returns from the first generation of consent decrees were coming in — and they were dramatic. A 2005 Vera Institute of Justice study called Pittsburgh “a success story,” noting that use of force and improper searches and seizures declined in the year after its decree ended. (The report did note some shortcomings.) A 2009 Harvard Kennedy School study found that serious-force incidents involving the LAPD had fallen five years in a row.
Such results spurred Obama’s Justice Department to go all out, negotiating 23 agreements, more than 58 percent of the total since the program’s start. Vigorous enforcement of consent decrees yielded results nationwide. In Seattle, police approval ratings rose from 60 percent in 2013 to 74 percent in early 2019, according to a city-contracted survey. Since 2015, approval ratings within the city’s African American community have risen from 49 percent to 72 percent. Notably, officer-involved shootings decreased from 15 in 2015 to just three in 2018. A similar story has unfolded in New Orleans, which entered its decree in 2013: By 2017, civilian complaints had dropped 29.7 percent and the percentage of people describing their interactions with police as positive rose from 53 percent in 2009 to 87 percent in 2018, according to one annual community survey. Meanwhile, officer-involved shootings declined from 20 in 2012 to four in 2018 (three were deemed accidental and one was of an animal), and use of deadly force (force likely to result in death or serious injury) incidents fell from 14 in 2016 to zero in 2018.