Statement of the Justice Roundtable Law Enforcement Reform Working Group
House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties
Oversight of the Civil Rights Division of the Department of Justice
September 24, 2020
These comments are submitted on behalf of the Justice Roundtable’s Law Enforcement Reform Working Group (LERWG). The Justice Roundtable is a broad-based coalition of more than 100 organizations working to reform federal criminal justice laws and policies. The Roundtable was founded in 2002 to coordinate the federal legislative efforts of the justice advocacy community. LERWG is co-chaired by Kanya Bennett of the American Civil Liberties Union (ACLU) and Sakira Cook of the Leadership Conference on Civil and Human Rights (LCCHR).
As the House Judiciary Committee is tasked with oversight of the Department of Justice, the LERWG is pleased to provide this submission to the Subcommittee on the Constitution, Civil Rights, and Civil Liberties for its September 24, 2020, hearing on “Oversight of the Civil Rights Division of the Department of Justice.” The LERWG statement focuses on DOJ’s failures around civil rights enforcement with respect to policing. The Committee can play a critical role in investigating these enforcement failures at a time when fatal police shootings have caused a national crisis and police relations are particularly troubled with people and communities of color, women, youth, those with disabilities, and LGBTQ people. Further, the Committee can play an important oversight role by continuing to hold hearings reviewing the record of DOJ and Attorney General Barr and his extensive record of curtailing civil rights in favor of increasing police militarization, furthering the devastating war on drugs, and failing to hold police departments accountable for continued abuse and shootings.
DOJ will not pursue Section 14141 pattern or practice investigations and consent decrees.
On November 7, 2018, then Attorney General Jeff Sessions issued a policy that sets unprecedented barriers for DOJ attorneys to negotiate settlement agreements and consent decrees. Attorney General William Barr has continued the approach that Sessions set out, refusing to use Section 14141 to mandate reforms and prevent police killings. Attorney General Barr further demonstrated his apprehension to police oversight saying that communities that do not give support and show respect to their local law enforcement may “find themselves without the police protection they need.
Consent decrees are court orders jointly agreed on by the federal government and a state or local government actor accused of serious civil rights and civil liberties violations. Consent decrees can remedy these violations at a systemic level, with implementation overseen by a court-appointed monitor until the agency has successfully carried out the required reforms. Under President Obama the DOJ entered into 14 new consent decrees with law enforcement agencies across the country. This policy from Sessions now makes it very difficult for the federal government to pursue Section 14141 pattern or practice investigations and hold state and local law enforcement agencies accountable for any systemic unconstitutional and unlawful policing that is found after such an investigation. Now, as “the department failed to prosecute police officers involved in patently racist violence” the DOJ under Barr’s leadership continues to refuse the use of consent decrees and Section 14141.
Sessions’ aversion to consent decrees – and perhaps a preview of his forthcoming memo – was reflected in DOJ’s October 2018 formal opposition to the consent decree concerning the Chicago Police Department (CPD). Even though Sessions had abandoned DOJ’s earlier investigation and findings of policing failures at CPD, and the CPD consent decree was between the state of Illinois and Chicago as a result of this abandonment, Sessions still weighed in. In filing the statement of opposition, Jeff Sessions declared that “[t]here must never be another consent decree that continues the folly of the ACLU settlement,” with Sessions referencing a 2015 settlement between the ACLU and CPD to end the department’s unconstitutional stop and frisk practices.
Since taking office, DOJ has not sought to enter into any consent decrees for unconstitutional policing. However, Sessions could not completely avoid consent decrees, having inherited a few from the previous administrations. At the close of the Obama administration, DOJ had initiated consent decrees in cities like Ferguson, Missouri and Baltimore, Maryland, responding to high profile police caused fatalities that were instigated by entrenched unconstitutional police practices, including biased policing and excessive force. But while the Ferguson, Baltimore, and other consent decrees that were finalized before Sessions’ tenure continue, it is unlikely that other cities plagued by systemic unconstitutional policing will benefit from DOJ’s civil rights enforcement unless Sessions’ memo is rescinded.
After the killing of George Floyd, Attorney General Barr refused to allow a pattern-and-practice investigation into the Minneapolis Police Department for systemic racial discrimination. Attorney General Barr continuing this policy of refusing to enforce Section 14141removes an important tool for DOJ to curb police violence and root out discriminatory practices. The DOJ has previously used consent decrees to curb the pattern and practice of biased policing found in departments across the country.
DOJ is failing to enforce the Death in Custody Reporting Act.
On August 29, 2018, DOJ announced a 30-day comment period on its proposed implementation for the Death in Custody Reporting Act (DCRA), having just closed a 60-day comment period regarding DCRA implementation on August 10, 2018. DOJ’s action further delays compliance with the law, which requires all states and police departments to report all police caused fatalities and other deaths in custody. In September 2019 a spokesperson for the DOJ said that “At this time, BJA does not have a plan to make the data collected under DCRA available to the public.” The DOJ delayed implementation of DCRA until Fiscal Year 2020, a full five years after it was signed into law and two years after DOJ last published its near-final compliance plan and guidelines. A failure to enforce DCRA is consistent with DOJ’s failure to properly collect and report data on the spread of COVID-19 in prisons, jails, and detention centers—known for becoming hotspots of spread.
DOJ’s delayed implementation of DCRA is unacceptable, as there continues to be an unreliable national census of custodial and arrest-related deaths, including national statistics on mortality rates, demographic impact, circumstances of these deaths, and implicated law enforcement agencies. Simply put, the federal government still does not know how many people are killed by law enforcement every year. Rather, police-caused fatalities are tracked by groups like Mapping Police Violence, which estimates at least 781 people have been killed by police in 2020 alone, and 6,552 from 2014—when DCRA was enacted—to 2019.
Knowing the number and circumstances of police-caused fatalities is crucial to developing policies that could reduce the number of such fatalities. This data is also critical to providing the public and DOJ the information needed to ensure law enforcement agencies are complying with civil rights laws, and to assisting DOJ with fulfilling its enforcement responsibilities. DCRA enforcement would also provide data that could be compared to data resulting from investigations, monitoring, and/or settlements of DOJ’s Civil Rights Division.
Thank you in advance for considering these comments. If you have any questions, please contact Kanya Bennett of the ACLU at 202-715-0808 or kbennett@aclu.org or Sakira Cook of The Leadership Conference at (202) 263- 2894 or cook@civilrights.org.