An Exchange on Consent Decrees

Readers interested in federalism and legal policy may want to check out my recent exchange on federal consent decrees with Cato alumnus Radley Balko, famed for his writing on police misconduct. It started when I wrote a partial defense at National Review of former Attorney General Jeff Sessions’s signing of guidelines somewhat narrowing the Department of Justice’s discretion in arriving at future consent decrees with cities and states that it sues. My piece emphasized that discontent over consent decrees has been building for decades in policy areas like education, mental health, and welfare, even though policing may have been the subject of the most recent headlines. Balko wrote a detailed response at the Washington Post (“The Trump administration gave up on federal oversight of police agencies — just as it was starting to work”) and I followed up a week later with a rejoinder agreeing with many of his points but taking issue with a couple of others.  

Here is one bit of common ground I cited: “Neither I nor, so far as I can see, the Sessions memo argued that decrees are necessarily illegitimate as a legal or constitutional matter. To the contrary, we all assume that such decrees will often have a sound legal basis and will continue to be negotiated in the future.” As my colleague Roger Pilon has pointed out, the post-Civil War Fourteenth Amendment confers on the federal government “the power to negate state actions that deny their citizens the privileges and immunities of citizens of the United States.” It’s more than plausible that the practices of police departments like those in Chicago and Baltimore deny some citizens those rights. 

But moving from the case for consent decrees in principle to the way they should operate in practice quickly gets more complicated. I wrote about the Baltimore decree at the time as follows (more): 

The decree (documentsummary of high points) mingles some terms that rise to genuine constitutional significance with others that no court would have ordered, and yet others that appear not to be requirements of the law at all, but at most best practices. Many are virtually or entirely unenforceable (“professional and courteous” interaction with citizens). Whether or not the decree results in the less frequent violation of citizens’ rights, it is certain to result in large amounts of new spending and in the extension of the powers of lawyers working for various parties.

Meanwhile, the more systematic problems with consent decrees, and especially with their cumulative accretion over time, have been widely documented, as in the case of children’s services

13 years after Ross Sandler and David Schoenbrod’s groundbreaking book Democracy by Decree, small groups of litigators, experts, special masters and other insiders continue to run many government agencies … “the Illinois child-welfare system is burdened by 10 different consent decrees, including one that has lasted nearly 40 years.” … By design, it is made hard to get out from under a decree, which can leave the small controlling group in control indefinitely: Connecticut’s 25-year-old child-welfare consent decree “contains 22 outcome measures that all must be met and sustained for six months before exit,” which has never happened.

The issues of federalism, practicality, and unintended consequences will not always be easy to sort out, but I hope our exchange makes at least a start.