The Rush to Rein in Baltimore Cops Before Trump

Originally published in VICE on November 30, 2016.
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In addition to frightening Muslims, immigrants, African-Americans and women across America, Donald Trump’s election as president of the United States has put a scare into the people trying to reform the country’s troubled police departments. And Baltimore may be the first city where those fears are realized.

This past summer, the Department of Justice issued a damning report that documented a wide range of police abuses in Charm City. They included making arrests without probable cause, blatantly discriminating against people of color, and cruelty towards victims of sexual assault. The 164-page report marked the first step towards a so-called consent decree between Baltimore and the federal government, a process used since the 1990s to address issues raised by national probes of local cops. While consent decrees are no panacea, civil rights advocates and experts generally agree they represent an important tool for reform and accountability by providing formal oversight over police departments that have proven resistant to change.

But a consent decree is only as good as its enforcement, and an executive branch led by Donald Trump, the self-proclaimed “law and order” candidate who campaigned on stop-and-frisk policing, complicates things, to say the least. That’s especially true if the Senate confirms Alabama US Senator Jeff Sessions—a politician whose career has been largely defined by accusations of racism and who has spoken out against federal intervention into policing—as attorney general. The two men have basically everyone working on police reform in the city deeply worried that the feds will not use the courts to hold Baltimore accountable come 2017.

The deadline to finalize Baltimore’s consent decree was set for November 1, in part because Mayor Stephanie Rawlings-Blake, a key player in the negotiations, is leaving office in early December. But at the end of last month, Rawlings-Blake said the deadline was more “aspirational in nature,” leaving open the question of when, exactly, a deal will get done.

“When the mayor came out and said it wasn’t going to be done by the start of November, the community collectively gasped,” says Tara Huffman, director of Criminal and Juvenile Justice Programs at Baltimore’s Open Society Institute, a progressive think tank and advocacy group.

On November 21, six Democrats in Maryland’s Congressional delegation sent a letter to Attorney General Loretta Lynch, Mayor Rawlings-Blake, and Mayor-elect Catherine Pugh, urging all parties to work as fast as possible to finalize the agreement. Rawlings-Blake responded that they are “working diligently,” but it seems unlikely to be finalized under her watch. Baltimore Police Commissioner Kevin Davis also noted that other cities have had much longer timetables to negotiate their consent decrees, and suggested Baltimore’s agreement is shaping up to be among the most ambitious.

Meanwhile, Mayor-elect Pugh has suggested she’s worried about Baltimore shouldering the costs of paying for these reforms, and teased plans to ask the state and federal government for help. On the campaign trail, the then-candidate released an online ad featuring a white surrogate saying “there’s too much talk of racism going on now” and that “the word ‘racism’ has got to be erased from our vocabulary.” (A spokesperson for Pugh’s transition team declined a request for an interview.)

“We have no reason to think she is opposed to the consent decree, but folks have not heard any really definitive declaration from Pugh that it is important to her, and something that she sees as important for Baltimore,” says Huffman.

The main reason reformers are so stressed about wrapping up the deal as soon as possible is that once the consent decree is finalized, a federal judge will be empowered to enforce it, no matter who is leading the Department of Justice—or, for that matter, the country. In other words, getting it done before Trump and his team take power has taken on new urgency, especially given that Sessions once wrote court-ordered consent decrees are “undemocratic” and “dangerous.”

Adding to reformers’ anxiety is that even if Baltimore does manage to get the decree in place before Inauguration Day, the police department and city political leadership may not follow through completely on the agreed-upon reforms. That’s when Trump’s team could wield tremendous influence.

“There will likely be an independent monitor, selected by the parties and the court, who will issue periodic reports of the city’s compliance,” explains Sam Bagenstos, a University of Michigan law professor who has worked in the Justice Department. “The reports will provide some public shaming, but even if the monitor says the city is out of compliance, the DOJ will have to be willing to go to court and seek further relief to enforce the consent decree. If a Trump/Sessions DOJ wants to shut the case down, all it has to do is let the decree sit.”

The Department of Justice declined to comment, and the Trump transition team did not return request for comment prior to publication.

Huffman says Baltimore’s negotiations with the DOJ have included generous solicitation of public input. For example, local groups have requested additional resources so community organizations can provide on-the-ground feedback about policing, in addition to whatever attracts the attention of the independent monitor.

The first DOJ consent decree with city cops was imposed in 1997 with the Pittsburgh Police Department. Witold Walczak, the legal director of the American Civil Liberties Union of Pennsylvania, helped bring the lawsuit that attracted federal attention in that case. He says that after four years, the city was in compliance with about half of the decree’s provisions, but those mainly consisted of operational changes like establishing a computerized early-warning system for troublesome officers.

After George W. Bush took office, Walczak says, the decree was eventually dropped at the instigation of his Justice Department—before many of the most serious issues had been addressed. There has since been major backsliding when it comes to local policing.

By the Marshall Project’s count, the federal government launched 20 police department investigations under George W. Bush’s administration, but entered only into three consent decrees. In contrast, the Obama Justice Department has led 23 investigations, and imposed 11 consent decrees.

“It wasn’t perfect under Clinton, and we’ve had an uneven relationship with the DOJ even under Obama—it’s not like they’re an extension of the ACLU,” Walczak says. “But under the Bush administration, and what we expect will happen under Trump, is this is simply not an issue they care to deal with.”

“Police abuse is a major problem that is crying out for federal intervention,” he adds. “And reforms are not going to happen without some kind of legal muscle.”

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