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Against Collusive Consent Decrees, For Police Reform

I live in Chicago, a relatively high-crime city where the murder rate is soaring. Lisa Madigan, the Attorney General of Illinois, has just sued the city seeking to change its police practices to prevent violations of civil rights. Rahm Emanuel, the mayor of Chicago, has welcomed the lawsuit and is looking to acquiesce in a consent decree which will create a new set of rules for the police department and a monitor to enforce them.

This collusive suit is a bad idea. To be sure, the Chicago Police Department needs reform, but this method reduces democratic accountability, imposes unnecessary costs, and most of all runs the risk of letting more people die from uncontrolled crime.  And it is very unlikely to do what is most needed: eliminating or reducing the protections against discipline that police enjoy in union contracts or under civil service laws.

For an example of the kind of consent decree that is likely to be agreed upon, look at similar litigation in Baltimore, an even higher crime city with a murder rate that is going up even faster. There the parties reached an agreement on a 227 page consent decree. The cost is estimated in the millions of dollars in payments and expenses for the monitor. But even worse, the decree sets in stone a variety of restraints on the police that go beyond the Constitution, such as restricting the ability to arrest for certain kinds of crime, requiring permission of supervisors to take certain actions, and telling patrolmen to prefer citations rather than criminal charges even when the latter are legally warranted.

Some of these changes may well turn out to be good in that they will reduce civil rights violations without increasing crime. But it is impossible to know beforehand. The content of that consent decree is the opposite of an empirical approach where the police department would make discretionary changes in one precinct and evaluate what occurs.  Mayor Emanuel could begin that program of reform right now without the need for court intervention.  A consent decree would also reduce democratic accountability since a new mayor will be bound by the consent decree even if he believes the balance struck seriously hampers crime control.

And, as I have suggested before, the greatest problem for lawful policing is that police departments have difficulty firing the few bad actors disproportionately responsible for civil rights violations because departments face constraints imposed by union contracts and civil service laws.  The Baltimore consent decree does not rewrite these contracts or laws nor it is clear that it would have the power to do so. And I expect no different result in Chicago. Thus, the consent decree may retard the most important kind of police reform by giving a false sense of progress.

My great concern is that in signing a decree to placate those understandably concerned about police brutality our mayor will make is harder to fight crime. The result may be more death and property loss, particularly among poor minorities—precisely those that such decrees purport to help.

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