Ten years ago this week, unarmed eighteen-year-old Michael Brown was shot and killed by a Ferguson, Missouri, police officer. In the wake of Brown’s death, amidst widespread protests and sophisticated activism and organizing around the issue of police abuse, the U.S. Department of Justice’s (DOJ) Civil Rights Division initiated a federal pattern-or-practice investigation of the Ferguson Police Department. The ten-year anniversary of Brown’s death coincides with the specter of the return of an emboldened authoritarian administration inclined to shut down or politically weaponize the Civil Rights Division’s authority to bring civil suit and put an end to forward-looking remedies designed to eliminate police misconduct. Given this, it may be worth taking a moment to reflect on the Civil Rights Division’s pattern-or-practice investigations of police since Ferguson, and consider the impact that ending that work might have.
In the view of many, not much of value would be lost if these pattern-or-practice cases ended. Certainly, among the “Back the Blue” crowd, there is no love for federal investigations of police departments, nor for the court-supervised consent decrees and costly monitoring teams that usually come with them. But as you swing through the center and into the left, similarly dismissive views of the DOJ’s police pattern-or-practice work reemerge. This has become especially evident since the murder of George Floyd in May 2020, as broader support for police abolition and related ideas have taken hold. The DOJ’s civil rights investigations of police departments increasingly are viewed by abolitionists as hopelessly reformist, with the resulting consent decrees serving as obstacles, rather than aids, to meaningful, sustained change. Even among those who may not see themselves as abolitionists but have worked for decades to transform policing in their own communities, consent decrees sometimes are viewed with disdain.
From the series
Ferguson at Ten
How the police killing of Michael Brown a decade ago propelled the modern decarceral movement.
As someone who helped lead this work while at the Civil Rights Division, including heading the team that investigated Ferguson and negotiated its consent decree, I share many of these concerns. At the same time, I am often struck by how evaluations of the DOJ’s work in this area tend to miss or minimize much of what is important about it.
Often ignored are two related questions: first, whether it is useful for the federal government to have the authority to investigate law enforcement agencies and file civil suit to seek injunctive relief where those agencies are found to be violating rights; and, second, whether there is value in the DOJ documenting its investigative findings in public findings reports. I consider these questions in turn, before taking up the thornier question of consent decrees.
The DOJ’s law enforcement misconduct pattern-or-practice authority, which it has delegated to the Special Litigation Section of the Civil Rights Division, is relatively new. It was granted by a provision of the (clearly overall disastrous) Violent Crime Control and Law Enforcement Act of 1994 (currently codified as 34 U.S.C. §12601). Without this authority, the federal government would revert to its pre-1994 extremely circumscribed authority to sue police departments.
When I began as an attorney at the Civil Rights Division in the mid-nineties, the Civil Rights Division’s pattern-or-practice authority was so new that when police abuse resulted in acute tragedy, aggrieved people called only for criminal prosecution of the officers involved. It was years before the response to these abuses routinely included demands for an investigation of the entire department, and for forward-looking, system-wide remedies designed to prevent abuses from recurring (i.e., injunctive relief), rather than only a backward-looking, carceral remedy. It is worth considering the value of a remedy to address policing’s harms at the structural level, and whether losing that remedy would push advocacy efforts (and subsequently mindsets) back toward the wrong and dangerous view that prosecuting individual “bad apple” officers is the way to fix policing.
Private plaintiffs can and do bring civil suits seeking injunctive relief against police departments. But both because these suits are incredibly resource intensive, and because courts (including the Supreme Court) have been increasingly (and egregiously) hostile to these suits over the years, few of these suits are brought, and yet fewer prevail. The couple dozen people working on these cases for the DOJ is tiny when considering how many of the 18,000 law enforcement agencies in the United States might be routinely violating rights, but this small group is still the largest concentration of lawyers focused on this work anywhere in the country. And the law under which they operate is not hampered by many of the onerous (and ahistoric) restrictions courts have placed on §1983, the civil rights law that private plaintiffs mainly rely upon when suing police for money damages or injunctive relief.
It is relatively rare for suits by private plaintiffs to even make it to the discovery stage of litigation, during which the details of abusive police practices might be exposed to the public (assuming plaintiffs could get around the usual rules against disclosing information learned during discovery). This makes the DOJ’s exposure of the details of police practices and their impact, a routine part of the Civil Rights Division’s pattern-or-practice investigations, all the more significant.
Indeed, the findings reports documenting the Civil Rights Division’s investigations of police departments may be the most important—and undervalued—part of the work. The Civil Rights Division documents the findings of its pattern-or-practice investigations in public reports. These reports provide details on the nature and extent of the pattern of rights violations, as well as context that helps explain how the pattern developed and took hold. They often serve to lift up to a broader audience the lived experience of individuals at the hands of police in that jurisdiction, and serve as a touchstone that people in the future can use to assess change over time. They can have an impact outside the jurisdiction that dwarfs their impact on the agency that was investigated.
The Division of Civil Rights’ Ferguson report is perhaps the best example of this. Called “one of the defining artifacts of our time” by legal scholar Paul Butler, the Ferguson report explained to a national audience what advocates and residents in St. Louis County already knew: that policing was driven by revenue generation, not public safety; was aimed almost exclusively at Black residents; and that this was not surprising given that the police and court system in Ferguson were blatantly racist. This illumination helped fuel efforts across the nation to reduce the harm meted out by abusive fines and fees, bolstered ongoing and nascent bail-reform efforts, and raised awareness of how current public policy and policing is often rooted in government support for segregation and other racist policies.
Document
The Ferguson Report
Justice Department report documenting patterns and practices of unconstitutional policing in the Ferguson Police Department.
In other words, ten years ago the Ferguson report set out the factual support for the proposition that much of policing may be driven not by public safety need, but rather by economic exploitation and racial animus. As important as what the Ferguson report found is who found it: the U.S. Department of Justice. This fact gives the findings broader credibility, introducing these concepts to new audiences and providing more traction to fuel policy change and societal understanding.
While less high profile, the DOJ’s most recent findings reports continue to serve this function. The 2023 Minneapolis and Louisville findings reports both made clear that eliminating a pattern or practice of law enforcement misconduct may require shifting functions from law enforcement to other actors, including other city agencies. More specifically, in both cities, the DOJ found that the cities’ failure to provide a non-police response to persons in mental health crisis could constitute violations of the Americans with Disabilities Act. The Minneapolis report notes the need to address crime through avenues “other than through policing,” such as using violence interrupters and public health prevention strategies. Similarly, the 2024 Phoenix findings report exhaustively documents not only the inevitability of legal violations, but also the futility of a city attempting to solve a homelessness crisis with policing and incarceration.
These reports all send a message not only to the jurisdictions to which they are directly addressed, but to every city and county in the country, about the need to stop trying to solve social problems with policing. This may already have been abundantly clear to people who have been doing this work, but it has a uniquely useful impact when the DOJ says it.
The significance of the DOJ’s investigations and findings reports tends to be overlooked when people talk about the DOJ’s police misconduct work. When most people question the value of the DOJ’s work in this area, they are talking about consent decrees. The consent decree phase, in the view of many, is where it all falls apart. People from across the political spectrum express frustration and anger that consent decrees—especially monitoring teams—cost so much, seem to last forever, and appear to result in little discernible change in policing. Some critics even see them as standing in the way of more meaningful change. These arguments have some merit, but often lack the nuance to provide a roadmap for a constructive path forward.
Consent decrees under §12601 come into play when the DOJ determines in a particular investigation that a law enforcement agency has a pattern or practice of violating constitutional or federal statutory rights. This finding gives the DOJ the authority to bring civil suit to remedy the violations. In nearly every case, rather than initiating contested litigation, the Civil Rights Division negotiates a settlement agreement with the defendant jurisdiction, and, usually, this settlement agreement is filed in federal court, signed by a judge, and becomes a court order—i.e., a consent decree—with the potential for the jurisdiction to incur all the penalties that refusing to follow a court order might entail.
The police consent decrees negotiated by the Civil Rights Division are generally quite expansive, requiring changes to scores of police practices and systems, and take many years to implement. Because a federal court has neither the time nor expertise to ensure the jurisdiction makes the changes required in the decree, usually a multidisciplinary monitoring team is jointly selected by the parties (the DOJ and the jurisdiction) and paid for by the jurisdiction. This team evaluates whether changes are being made, assesses what the impact of those changes is, and reports that information to the court and to the public. There is considerable variance in the approach of each consent decree judge, as well as in the approach and quality of the monitoring teams. Consent decrees mark the end of the relatively easy part of the work to transform a police agency, and the beginning of the extraordinarily difficult part.
Some of the concerns about consent decrees reflect a lack of awareness about how much they do in fact appear to reduce policing harm. Indeed, this is what frustrates many of the civil rights attorneys at the DOJ doing this work: that the public misses the good that consent decrees have done. The Civil Rights Division attorneys talk about how the DOJ needs to do a better job of educating the public. And this is true. It does. If you look at monitoring reports and consent decree status conference transcripts, you will read a lot about process. The working groups that are finally up and running; the training plans that have been finalized; the policies that have been approved. Maybe more substantive conversations are held in court chambers, hidden from view, but rarely does the DOJ make a concerted effort to explain to the public how consent decrees are changing the experience and impact of being policed. It is harder than it should be to track down evidence of consent decrees’ impact, with many facts buried in databases most people do not know exist and would have to pay to access.
Although hidden, the support that consent decrees can help reduce policing harm is there. In Ferguson, for example, community members helped ensure that the Ferguson consent decree dismissed more than 44,000 cases. In 2013 and 2014, the Ferguson Police Department wrote an average of 21,000 citations each year; following the consent decree, during 2015–2018, this average dropped to about 3,500 citations per year. By 2022 fewer than 200 pre-2014 cases remained open for prosecution, down from tens of thousands.
These (and other) concrete consent decree impacts in Ferguson are consistent with what we know about consent decrees’ impact more broadly. Studies have shown that when cities implement consent decrees, police abuse and police killings decrease, sometimes dramatically. It is always difficult to know how much improvement is due to the consent decree as opposed to the work of other advocates and organizers, and the many other changes that tend to happen around the same time, but many of these changes and lawsuits happening in tandem can themselves be traced to the impact of DOJ involvement, sometimes leveraging DOJ findings. There may be a symbiotic relationship between the DOJ’s work and the work of those advocating and organizing locally.
Still, a lack of awareness about what the DOJ’s consent decrees have achieved is not really the crux of the problem. The crux of the problem is that consent decrees are too limited a tool to bring about, on their own, the kind of dramatic change needed in policing. The kind of change that no one who has suffered police abuse could miss just because the DOJ didn’t advertise it enough. The kind of change that people in heavily policed communities would notice as soon as they stepped outside their front door. The kind of change that doesn’t need a randomized controlled trial to confirm.
There are several reasons it is wrong to expect consent decrees to have this dramatic impact on their own. Most prosaically, much of what is in a consent decree is a surrogate for good leadership. No litigant, including the DOJ, can conjure up good leaders and force a jurisdiction to hire them and remove the obstacles (like police unions and sometimes civil service rules) that can prevent them from being fully effective. Many of the provisions of a consent decree are simply prophylactics for good leadership and functional accountability systems.
More fundamentally, consent decrees are a legal tool operating within a legal system that has, for longer than there has been a DOJ, created and perpetuated a racist public safety system that causes far more harm than it needs to, and is not nearly as effective as it could be. Our current legal system is the scaffolding of a public safety approach that overly relies on incarceration, punishment, coercion, and violence. The law of policing specifically facilitates and condones abuse as much as it constrains it. Further, the legal process fails to give adequate voice to people without money or influence, regardless of how pervasively their rights have been violated. Consent decrees are not designed—are not even allowed—to formally change this legal system. Rather they are meant to ensure adherence to law.
Unsurprisingly, the legal construct of a consent decree is unlikely to achieve dramatic change in this legal environment. Perhaps more surprisingly, in many places there is not a lot of evidence that consent decrees ensure adherence to the law as it is—at least not in the long term, and especially when it comes to eliminating unnecessary race disparities in policing. This is true no matter who wields the tool, but these problems are likely amplified by the DOJ’s institutional affinity for the status quo and the carceral logic that has long fueled it.
Does this mean that the DOJ’s policing consent decrees are a game that is not worth the candle? Maybe. But maybe not. If you believe that the federal government should be able to enforce federal rights, including constitutional rights, when they are violated by the police, you might also believe that there should be a remedy for those violations. You may even think that criminal prosecutions or civil lawsuits against individual officers may not be the best remedy (or at least shouldn’t be the only remedy). Consent decrees provide a comprehensive set of reforms aimed at changing carceral systems and policing culture. As noted above, there is evidence that they can reduce the ongoing harms of policing. They can even be instrumental in reining in policing overreach and reducing our over-reliance on policing. And they are more resilient to political interference than out-of-court settlement agreements.
All of this suggests that it may be worth trying to make the DOJ’s consent decrees work better before giving up on them.
Reimagining consent decrees is within the DOJ’s reach, if it can be pushed enough to try. Most fundamentally, the DOJ needs to recognize that consent decrees should not be the star of the show. In other words, the DOJ must accept that its consent decrees, on their own, are not going to fix policing, whether in a particular place or writ large. This recognition should then prompt the DOJ to educate itself about local capacity and needs in each investigation and, based on what it learns, work to bolster, rather than displace, the often-nascent efforts to build a powerful local community structure that will drive the broader change necessary—and that will be there to sustain that change once the consent decree has run its course.
Admittedly, this is not an easy task. It requires working within—and sometimes around—a legal system that has long refused to make space for true engagement by the people and communities most impacted by police abuse. It may require sifting through posers and grifters in a place that DOJ staff almost certainly don’t know well. With the help of allies, the DOJ can learn to overcome these and other challenges over time. But it will never do so unless the DOJ stops acting as if consent decrees are all that is needed to fix policing and has the humility to recognize that, while lawyers and law are important, an organized and active community is the only way to bring about—and sustain—lasting change in policing.
One way that the DOJ could begin to translate this better approach into both the substance and process of its consent decree program would be by ensuring that consent decrees include the data collection and transparency about police practices and outcomes that educate and empower the public to make needed changes separate from the consent decree. Consent decrees already do this to some extent, and even abolitionist opponents of consent decrees recognize that the increased data collection and transparency that accompanies consent decrees can be used to advocate for less harmful, more effective public safety approaches. But consent decrees could be more intentionally drafted to focus not only on how the information they produce will be used by the police department to better manage its operations, or by the judge and monitor to assess compliance with the decree, but also by the public. That way the public could directly and specifically identify what the police are doing and what impact they are having. With this information, the public could more directly assess the impact of the consent decree on policing and better advocate for better public safety systems.
The DOJ could also help build long-term capacity to create and sustain change by ensuring that local groups and individuals are resourced to help develop and implement the consent decree and, importantly, to innovate and work with a broad range of local stakeholders on policing and public safety issues related to (but outside of) the parameters of the consent decree. A broad swath of community members should help define what the aims of the consent decree will be, and how success will be measured. Relatedly, the DOJ could build into its decrees an information-sharing requirement and even deference to local efforts on the part of the federal judge. All of this work would begin during the investigative phase, and would require the DOJ to learn as much about the communities they are working in as the police departments they are investigating.
The DOJ should also include in its consent decrees more provisions that rein in police overreach. For example, the DOJ should further develop the restrictions placed on pretext stops and consent searches that it included in Ferguson, New Orleans, and elsewhere. It should also require the creation of non-police responses to mental health crises in the Louisville and Minneapolis consent decrees currently being negotiated. These provisions restrict police more than current law does, but the DOJ’s findings reports provide ample support for the need to do so in order to eliminate patterns of legal violations. One important question, unresolved in my own mind, is whether the DOJ should aim for more narrow consent decrees with a few dramatic changes that can be more quickly implemented—and not worry about sticking around to make sure they’re sustained—or continue to seek expansive, detailed decrees that, even in the best of circumstances, will require years to implement.
Finally, the DOJ—and the judges overseeing consent decrees—should take fuller advantage of the power of a consent decree to compel implementation sooner rather than later. When jurisdictions complain about consent decrees lasting too long, they mostly have no one but themselves to blame. For years after the Ferguson consent decree was entered, the city kept in place (and even promoted) some of the same recalcitrant leadership that the findings report made clear had driven racist policies and resulted in routine constitutional violations by police. This leadership did not act with any sense of urgency to implement the consent decree and thereby end court oversight. Basic policies and training required by the decree went unaddressed. This set the tone for implementation of the consent decree that continues to this day. As of the most recent monitor’s report covering late 2023—nearly ten years after the decree was entered—some policies still have not been written, and the city does not have a comprehensive training plan or provide in-service training in many areas. In that same report, the monitor described Ferguson’s posture as “stagnation” for much of 2022 and 2023.
I say cities mostly have no one but themselves to blame because there is some blame to go around. If the DOJ as plaintiff were more aggressive in seeking contempt when a city fails to uphold its end of the agreement, and federal courts were more willing to find the individuals tasked with implementing consent decrees in contempt for not doing so, they might convey a sense of urgency so often lacking in consent decree implementation. What we see instead is that, in some jurisdictions, both the DOJ and the court seem to have forgotten, or at least want to forget, that there is a consent decree that still needs to be implemented—and that they possess tools to compel compliance.
Despite Ferguson’s glacial pace of implementation, for example, the DOJ’s briefs and appearances in court have been milquetoast. The decree was watered down during the Trump years in significant ways, with no objection from the DOJ. The agreement’s restrictions on officers’ use of pretext stops was removed, as was language that prohibited fine amounts from being overly punitive or higher than regional averages. Struck also was language requiring that fine amounts consider the income of Ferguson residents and be approved by the DOJ. The judge overseeing the Ferguson decree gives the public impression of being uninterested in the case. During status conferences, her engagement is limited largely to asking people to step closer to the mic and reminding them of the time limits on their comments. Nor has the court meaningfully responded to longstanding concerns about a lack of transparency in the process or the slow pace of reform. Following this lead, the monitor’s reports have at times been many months overdue, and generally the monitoring appears inconsistent at best and at times entirely absent.
The ten-year anniversary of Brown’s death appears to have spurred a bit of interest in the status of the case among Civil Rights Division leadership, but there is every indication that the pattern of lethargic implementation will resume once the spotlight is off. To be sure, engagement by the DOJ, monitor, and court has been far more robust in many consent decree cases. But the fact that the DOJ would invest so little in consent decree enforcement in a case as high profile as Ferguson should be troubling.
The DOJ’s shortcomings on the consent decree front are discouraging, but not entirely bad news. Because while this makes clear how much better the DOJ needs to be at drafting and enforcing its police misconduct consent decrees, it also underscores that, if the DOJ takes this different approach, these consent decrees could not only be implemented more quickly and effectively, but also could finally fulfill their critical supporting role in transforming public safety.
Image: Jamelle Bouie/Wikimedia Commons
