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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.

Reader Discussion

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on September 05, 2017 at 18:23:30 pm

Such consent decrees are more likely sought to draw attention away from the disastrous political consequences of Blue City-State 'free-for-all' fiscal fiasco that has Chicago, as so many other Blue Munies on the verge of bankruptcy.

Furthermore, any gains the decree may succeed in initiating the necessary reform of Public Safety contracts to make it easier to punish or terminate civil rights violators will likely be (grossly) off-set by heavy long-term fiscal losses incurred in wage/benefit compromises [read wage increases, relaxed over-time rules, and employer benefit cost-sharing concessions (i.e. lower employee co-pays & deductibles; higher employer pension contributions)], with the Police/Public Safety Unions, in order ensure the union will: 1) vote to ratify the contract 2) not withdraw its political support for the incumbent and party.

I seem to recall having read somewhere (I haven't the source, so please do not rely on my recall without verifying by research) of correlation between a City's fiscal health, one not marred by perpetual and ever ballooning fiscal crisis which result in and require ever greater cut-backs in public services, and more positive relations between the City's public safety servants and so-called, "At Risk" populations for civil rights abuses, and a reduction in civil rights claims and violations, i.e.: better fiscal health/better community relations 'at-risks' with fewer civil right claims & violations and visa versa.

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Paul Binotto
on September 06, 2017 at 12:06:13 pm

I live in Chicago, a relatively high-crime city….

Relative to what? Wikipedia, analyzing the FBI’s latest published data (2015), ranks Chicago as follows:
• Violent crimes generally: 28th
• Murder/Non-negligent manslaughter: 6th
• Rape: 40th
• Robbery: 22nd
• Aggravated assault: 26th
• Property crimes: 64th
• Motor vehicle theft: 49th
• Arson: 40th

Chicago’s murder rate is less than half the rate in St. Louis, for example. And it’s still less than Chicago’s murder rate in 1990. So let’s keep some perspective here.

[T]he 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….

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.

1. Has a court ruled on the power of one elected official’s administration to bind a subsequent administration? Perhaps the subsequent administration would be free to violate the terms of the agreement—and the litigants would be free to sue again.

2. More specifically regarding the Chicago litigation, the binding nature of a consent decree depends upon finding a court with jurisdiction to bless the decree. If the matter were brought in a federal court, the court would need to find a “case or controversy” in order to assert jurisdiction. With the Attorney General and the mayor are on the same side, it’s not clear that a consent decree could bind anybody: there are no adverse parties present to consent to anything.

I don’t know whether Illinois courts also require a “case or controversy,” but I’d expect they’d have some similar jurisdictional requirement. Otherwise, people could play tricks such as suing themselves in order to quiet title to land.

[A consent decree] 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.

Perhaps so. But this begs the question: Why haven’t people eliminated or reduced those protections in the past?
If there is no practical way to do so, then this criticism is kind of moot. A consent decree may be a second-best solution—yet we regularly embrace second-best solutions when we can’t implement first-best solutions.

[T]he 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.

With the limitations noted previously regarding the power of one administration to bind another, I’m not aware of constitutional limits on including such terms in a settlement agreement.

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nobody.really
on September 07, 2017 at 14:57:27 pm

I think it's kind of funny that when you go outside the US (and the US political machines) you get a different picture of US crime rates.

https://www.numbeo.com/crime/region_rankings.jsp?title=2017-mid&region=021

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Scott Amorian
on September 07, 2017 at 16:53:51 pm

The Brennen Center predicts Chicago’s 2017 murder rate to fall by 2.4 percent—but that pales in comparison to the declines predicted in Detroit (25.6 percent), Houston (20.5 percent), and New York (19.1 percent). In contrast, Charlotte’s murder rate has doubled.

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nobody.really
on September 09, 2017 at 13:04:22 pm

[A consent decree] 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.

Perhaps so. But this begs the question: Why haven’t people eliminated or reduced those protections in the past?

Why!!! - could it be that the Democrat politicos would lose that most precious of all commodities - VOTES?

As for #2: Other cities have had adverse parties (Police unions) and yet the decree(s) have force - and in Seattle, as an example, terms of the *consent* are (apparent) violations of the Police Union contracts. Interesting - indeed!

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gabe

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