Liberty, Prudence, Imperfection, and Law

“Consent Decrees: Public Policy by False Proxy,” By Bruce Frohnen

Memorial for Michael Brown in Ferguson, Missouri.

As our government veers ever closer to lawlessness, we would do well to remember that the court system itself can, and in many ways has, become complicit in enforcement of policies without law—that is, orders we are obliged to follow but that have their origin outside the lawmaking process. Moreover, the means by which courts enforce these policies, while putatively within the court system, lack the fundamental characteristics of legal process. One important tool within this new regime is the consent decree.

Originally, consent decrees were merely a means by which two parties could settle a lawsuit without actually going to trial. Much like any other settlement, in which the parties decide to work out their differences before incurring vast legal expenses, consent decrees can spell out the terms of an agreement. The courts need not be involved in a settlement of grievances, of course. But if the parties want to make certain that, for example, a consumer who accepts a payment for injuries suffered from use of a product will not cash the check and then go ahead and sue, they may want a judge to approve the settlement and file it so that the “you may no longer sue us on this issue” provision of the settlement will be enforced. When children and other people not competent to enter into legal agreements are concerned, the courts must be involved.

The government is an important party to consent decrees in another way: as one of the litigants. When lawyers talk about consent decrees today they generally mean a settlement between the government and some company, person, or other institution (including another government). Here there can be two kinds of consent decree. The first is where the government (let us say, for example, the civil rights division of the US Department of Justice, or DOJ) sues someone for violating a federal statute or regulation. In exchange for certain agreements, DOJ may be willing to drop the suit before it bankrupts the defendant. The result will be a consent decree, according to which the defendant will agree to cease certain actions and perhaps undertake others to bring its conduct into line with the relevant statute or regulation.

The second kind of consent decree of relevance, here, comes about when someone sues the government. Often such lawsuits are filed under federal statutes that intentionally created a right to sue. These statutes seek to create “private attorneys general” to effectuate public policies by keeping various federal, state, and local agencies within the language of laws on everything from environmental protections to civil rights. Not surprisingly, in this last instance, the lawsuits often are welcomed and even partially instigated by government officials as a means of getting the policies, budgets, and publicity they want in the face of a Congress and/or president who may not share their specific goals. Various “public interest” pressure groups sue, then enter into consent decrees that are, in essence, sweetheart deals between bureaucrats and like-minded activists to make policies going far beyond existing law or administration policy. Often the result is a very real change is policy that undermines the law, as for example when agencies agree to enforce quotas by race, gender, or some other category as a means of “achieving” more qualitative goals laid out in some statute. Sometimes the results can be catastrophic, as in 1982 when Philadelphia Mayor Wilson Goode agreed to a decree, proposed on behalf of some local prisoners, limiting the number of inmates kept in the city’s jails. The mayor thus avoided having to fix Philadelphia’s prisons. Unfortunately, in fulfilling the terms of the decree Philadelphia released nearly ten thousand criminals from those jails over eighteen months, producing scores of murders and rapes and some seven hundred burglaries.

Most well-known public consent decrees tend to be instituted by DOJ and to focus on issues of policing and race, as well as the conjunction between the two. To see where this leads, it may be helpful to look at two consent decrees—one forthcoming and one actual—that arguably make the best case for federal use of this tool. The abuses aimed at may be real, but the remedy in both cases is unlikely to produce the promised results and carries too high a price.

The shooting of Michael Brown by a Ferguson, Missouri, police officer acting in self-defense did not merely produce riots, threats against the officer, and nationwide calls for action; it also produced action, of a very specific sort, from DOJ. The DOJ investigation, not surprisingly, came up with no credible basis for leveling new charges against the officer involved. Also not surprisingly, DOJ was not about to leave the matter there, because an exhaustive investigation produced truly shocking revelations of police and local government misconduct in that town—revelations that should outrage any citizen concerned about ordered liberty in any part of the United States. Among other things, Ferguson police, at the instigation of their superiors in city government, have been conducting themselves in a truly thuggish manner, using tasers to “subdue” anyone questioning clearly illegal conduct on their part.

The likely result of this investigation will not be a long, drawn out lawsuit filed by DOJ against the city of Ferguson. Far more likely will be a consent decree entered into by DOJ and the city to, in essence, put Ferguson into a kind of federal receivership, with a court overseeing a special monitor who will impose a set of new policies on law enforcement, the courts, and, potentially, other parts of the municipal government. Whether or not (most likely not) the consent decree corrects these abuses or does any good for the people of Ferguson, the city will likely be run in many of its essential functions by an unelected lawyer following court guidelines taken from Eric Holder’s playbook for decades to come.

The other city in which a citizen died at police hands recently is New York, in which police officers killed Eric Garner, guilty of the heinous crime of selling loose cigarettes. New York City will not be subjected to any consent decree on account of that killing. Then again, New York already is subject to a number of consent decrees, including one sparked by the “stop and frisk” policy engaged in by police officers there, which was found to be racially discriminatory. As with consent decrees across the country, the one under which the New York City Police Department will be acting imposes on it a detailed “plan of action” to be overseen by a court and its monitor.

That both police departments have systemic problems in need of close and immediate attention would seem obvious. That the solution is to subject them to rule by a band of bureaucrats from DOJ seems rather less clear. Whether consent decrees in general are good for, or even consistent with, ordered liberty in the United States is a question to which the answer is a resounding “no.”

First, it is important to note the nature of the actual ills the consent decrees aim to “cure” in New York City and, almost certainly, Ferguson. “Stop and frisk” is an empowerment of police officers to randomly search citizens, who in any free country should be presumed innocent and law-abiding, hence immune to such searches without some verifiable probable cause of imminent lawbreaking. Stop and frisk is a bad policy. But the New York City consent decree does not aim to stop the police overreach as such. Instead, it is concerned with the practice’s “disparate impact” on members of certain races. In Ferguson, too, the primary concern of DOJ is “disparate impact.” The DOJ report is replete with claims that neutral policies (many of them awful) capture more African American residents than members of other races. Thus, in Ferguson, a city that abused its citizens by using raw police power to instill fear and impose outsized fines for minor infractions, including through a habitual use of excessive force and other bullying tactics, DOJ is focusing on racial statistics.

My point is not that DOJ should alter its priorities, though of course it should. My point is that DOJ certainly will not alter its priorities, and that we should not expect it to do so. Federal agencies long ago were captured by ideologues concerned with imposing a particular vision of racial justice on the rest of America. Violation of any person’s right to equal protection under the laws is, of course, a very real wrong. But the determination to enforce a false equality in every American locality is not likely to increase the people’s liberty. This is particularly so when the concern is to eliminate disparities that show up in statistics by race even when the policy being questioned is not aimed at any particular race. The statistics themselves often are of highly questionable validity, especially when one fails, for example, to take account of correlations according to economic class such as the fact that in Ferguson African Americans are significantly poorer and whites and poor people are statistically more likely to commit legal infractions. These bad statistics are then used as the basis for lawsuits, forcing, in effect, quotas on arrests and fines. And this serves neither justice not the public good. Such tactics and the consent decrees used to enforce the new policies do, however, serve the ideological goals of federal agencies like DOJ. And this means that “reform” in Ferguson is much more likely to entail racial quotas in various police and other regulations than reestablishment of a consistent rule of law.

Again, my point is that this is what we should expect from federal interference, because it is not rooted in the needs and expectations of the communities it comes to rule through consent decree. What is more, such policies serve to further undermine the control and responsibility of local governments and their officials to the citizens of cities like Ferguson. It already is the case that very few people bother to vote in local elections. This is for the very logical reason that people see little reason to bother voting for those whose central responsibility is carrying out various federal and state mandates. Further marginalizing local officials’ political power and responsibility will serve only to further erode the already scant role and interest of the people in their local self-government. All this at a time when federal mandates, housing subsidies, and public assistance programs (e.g., food stamps) tie many culturally atomized poor people to areas where they lack control over their own lives. Dependent on the state and fearful of losing government benefits, people are unable to vote with their feet by moving to areas where their skills and determination might earn them better treatment and a greater share of public respect.

Of course, the federal courts could do a significant favor for local citizens who may face genuine police misconduct: they might reverse recent federal decisions that in effect create a national immunity for police officers acting under cover of law. This is not likely to happen. Instead, judges continue to participate in consent decrees that may be instituted without true public consent and that produce massive changes in public policy and administration, overseen by unelected officials, potentially forever. In the end, then, entire cities and towns become perpetual wards of the federal government and its judicial facilitators, as local self-government falls by the wayside and the people lose any control they once had over their own way of life.


Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.

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