Federal Intervention in Police Departments to Return Under Biden

Activists pushing to reshape police departments will soon have a new tool at their disposal—or rather, an old tool that’s expected to get new life under President-elect Joe Biden. 

Biden plans to revamp federal “pattern and practice” investigations into police departments—and to a lesser extent prisons and prosecutor’s offices—to root out systemic misconduct and biases. The practice was frequently deployed by former President Obama’s Justice Department, but ended during the Trump administration.

These investigations often lead to consent decrees, a court-enforced agreement between law enforcement agencies and the U.S. Justice Department to implement specific reforms. Under Obama, many of the agreements were sweeping—police departments agreed to change how they use force against civilians, create new accountability mechanisms, rework protocols for officers’ off-duty work, implement new training and improve how police respond to mental health calls. 

Some critics question consent decrees’ price tags and effectiveness to make long-term change. But after a summer of protests across the country about police brutality, the revitalization of consent decrees could become part of dramatically rethinking how departments operate, said Jonathan Smith, the executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs and the former chief of the special litigation section of the DOJ’s Civil Rights Division, which is responsible for pattern and practice investigations. 

“The national conversation around policing has evolved dramatically since [the Obama administration]”, said Smith. “We were largely focused on constitutional violations. Now you have a set of questions around reimagining the role of police—so it’s an opportunity for Biden and the next AG to help the nation figure out what police should be doing.” 

Along with prioritizing the use of these investigations to crack down on unconstitutional police practices,  Biden has also said he will push for legislation that clarifies the Justice Department can use the same tactics to examine systemic misconduct in prosecutors’ offices—something that Smith said is “much harder to do than police or prisons.” Prosecutors are given a great deal of discretion in their decisions around which cases to pursue and prosecute. On top of that, most prosecutors don’t maintain large databases that would let investigators find patterns of bias or discrimination. 

There’s so far only been one consent decree reached with a prosecutor’s office—in Missoula, Montana—and in that case, the prosecutor sued both then-U.S. Attorney General Eric Holder and Smith, arguing that she wasn’t law enforcement as defined by the statute that authorizes pattern and practice investigations. The state Attorney General’s office eventually stepped in to overrule the local prosecutor, but the question as to whether prosecutors count as law enforcement in these investigations was never resolved—and likely won’t be clear unless legislation spells out that they are considered law enforcement or a prosecutor takes the Justice Department to court again and a judicial ruling answers the question.

Biden’s embrace of this strategy shouldn’t come as a surprise—pattern and practice investigations have been an effort largely driven by Democratic administrations. They began under the Justice Department during the Clinton administration with consent decrees established in cities like Pittsburgh, Detroit, and Cincinnati. Under the Obama administration, they became a major priority, with 23 investigations and 25 consent decrees, most famously with Ferguson, Missouri following the police shooting of Michael Brown. 

The investigations came to a halt under the Trump administration when former Attorney General Jeff Sessions called consent decrees a “dangerous” mechanism for federal intervention in local affairs before issuing a memo effectively ending their use for the duration of the administration. This approach was embraced by police unions, which have criticized consent decrees for implementing cumbersome new paperwork requirements, wasting money on well-paid monitors and lingering for years. The Fraternal Order of Police did not respond to a request for comment about the expected resumption of federal consent decrees under Biden.

Some states have since stepped into the void.  In Colorado, the attorney general’s office this year opened an investigation into the Aurora Police Department after renewed calls for an inquiry into the death of Elijah McClain, a 23-year-old Black man who Aurora police killed in August 2019. The Illinois Attorney General’s office is engaged in a consent decree with the Chicago Police Department and California’s AG set up a “collaborative reform program” with the San Francisco Police Department.

It seems likely that such activity would continue in the states even as the Biden administration resumes pattern and practice investigations, said Smith, but only at a “low level” because state attorneys general face challenges that the federal government won’t. “The criminal side of a state AG’s office relies on local law enforcement. There’s a natural relationship that brings them closer,” he said. “The federal government doesn't have those conflicts.”

But in one state pursuing a pattern and practice investigation, it’s not the AG heading the initiative. Following the police killing of George Floyd in May, the Minnesota Department of Human Rights opened an investigation into the Minneapolis Police Department to determine if there was a pattern of police discrimination and hostility, particularly towards the city’s Black residents. Taylor Putz, the department’s communications director, said the investigation into the MPD is “ongoing” and that the department “looks forward to continuing that work”—regardless of whether the feds step back into the arena.

“Throughout the civil rights investigation, the Minnesota Department of Human Rights is committed to engaging with any array of partners—including community members, nonprofits, policing experts, and other government entities,” he said. “We are interested in conversations with the Department of Justice about how partnering could advance our civil rights investigation.”

Sam Walker, a professor at the University of Nebraska who studies consent decrees, said that the Biden administration may choose to increase focus on specific issues within departments, as some agreements in the past have done. New Jersey State Police, for example, entered a consent decree over racial bias in traffic enforcement, while Maricopa County reached an agreement over their immigration enforcement strategies. Now, “the handling of mass demonstrations is an obvious topic,” he said. “There are a number of model policies around deescalation and use of force in those cases that they could try to employ.”

The DOJ also might bring back some strategies used in consent decrees in places like Seattle that require the creation of community oversight committees. “We may see more of a focus on developing procedures and agencies that provide a formal channel for communities to be engaged in police issues,” he said.

Before any investigations can begin, the Biden administration will have to do some housekeeping at the DOJ, starting with the relatively easy task of getting rid of the Sessions memo. The tougher challenge will be building back staffing levels of lawyers and investigators in the civil rights division to handle the immense workload that comes along with the investigations, Smith said. 

After that happens, we’re likely to see the first investigations happen “very quickly,” Smith said. “It might not be days, but it won’t be months,” he said. “Especially given what’s happening in the country right now. It’s a real opportunity for the Biden administration to help the nation resolve questions about criminal justice in a way that promotes legitimacy and increased confidence in policing.”