May 1, 2021

Investigations of Police Departments Are Important, but Let’s Streamline the Process


Dear PERF members, 

PERF members often tell me that one event they look forward to each year is our Town Hall meeting. For me, I feel like a ringmaster standing in the middle of a crowded room and doing what I think PERF does best: allowing all of you to tell your stories. People always compliment us on what a great event it is, but honestly all we do is get to know your stories and then ask you to tell them. Unscripted, candid, and from the heart.

I was new to PERF in the 1990s, and my longtime colleague and friend Charlotte Lansinger and I had just finished doing the search for a new police chief in Pittsburgh. A bright young captain within the department named Robert McNeilly had been chosen. The mayor wanted to make changes, and he knew of Bob’s reputation as a respected, innovative leader.

At a Town Hall meeting after Bob’s selection, I remember calling on him and asking how his first year was going. Always thoughtful and soft-spoken, Bob talked about a new federal investigation into the Pittsburgh Bureau of Police (PBP) and the “consent decree” he had just signed agreeing to comply with its findings. While many people in the room were familiar with this concept, none of us knew what it would mean practically speaking.

The Pittsburgh investigation resulted from a provision in the 1994 crime bill that gave the Department of Justice’s Civil Rights Division the authority to investigate state and local law enforcement agencies that it believes have unconstitutional policies or engage in unconstitutional patterns or practices of conduct.

In a subsequent Town Hall meeting, then-Cincinnati Chief Tom Streicher talked about being in Chicago for a PERF meeting when one of his officers was involved in shooting. Very little information was coming out about the incident, and angry community members ended up rioting. Before Tom knew it, his department was being investigated by the DOJ and a memorandum of agreement (another type of DOJ “settlement agreement”) was implemented.

Pittsburgh and Cincinnati became the living laboratories for this emerging practice, and police executives everywhere were paying attention. This was new territory, and no one really knew what the implications would be, for these two agencies or potentially their own.

Both Bob and Tom would later report that while they had initially found the process to be intrusive and sometimes daunting, they had come to see their settlement agreements as painful but necessary hammers. They were able to acquire resources they never would have obtained otherwise, and they were able to make the changes needed to propel their police departments forward.

In Bob’s case, the consent decree allowed him to implement a number of reforms that otherwise would not have happened. One story he told was the requirement to implement an early warning system to detect emerging patterns of officer misconduct. The system initially developed was expensive and didn’t work. So with the support of Bob’s wife, Kathy, a respected commander in the department, the PBP created a highly functional new system – one of the first in the country – all because the consent decree mandated it.

In Tom’s case, the MOA led to the adoption of a comprehensive community and problem-solving approach to policing. It came to define the Cincinnati Police Department for years to come.

(In January 2017, the Civil Rights Division published a helpful report that explains the process by which investigations are conducted and agreements reached. The report also provides useful historical information on many of the investigations and agreements the Division has undertaken since 1977.)

As generally positive as these initial experiences were, there was a significant issue which would become increasingly challenging as time went on. It involved the outside monitors appointed to oversee implementation of the agreements. In one celebrated case, Tom Streicher essentially banned a consultant from the city because she was ordering around his officers.

The power and control exerted by outside monitors would become one of the most controversial and problematic aspects of consent decrees and MOAs. PERF got a hint of this in 2012, when we brought together police executives who had gone through the process, along with members of the DOJ’s Civil Rights Division and its Special Litigation Section. That meeting resulted in the PERF publication, Civil Rights Investigations of Local Police: Lessons Learned, which focused on a number of issues, including outside monitors, how to define compliance, and the costs and benefits of consent decrees. A big issue, then and now, isn’t how you start an investigation but rather how you end it.

So when Attorney General Merrick Garland announced within a week that the police departments in Minneapolis and Louisville would be the subject of DOJ investigations, there was a collective sigh. Police executives understood why DOJ was initiating these investigations, and both Chief Medaria Arradondo and Chief Erika Shields immediately expressed support, recognizing that the investigations could bring badly needed resources to help reform their departments.  

But there was also trepidation about a number of issues: the role of monitors, concern about what success looks like in these cases, and wariness about entering into agreements that have a beginning but no clear ending and which can result in enormous and ongoing costs to cities, sometimes long after the agreements had reached the point of diminishing returns. PERF’s 2012 publication defined success as 95% or higher compliance over two years, which is a very daunting measure even under the best of circumstances.

Would the Department of Justice be sensitive to these concerns?

Shortly after the announcement of the Minneapolis investigation, Attorney General Merrick Garland asked to meet with leading police organizations to let us that he very much wanted our input on a range of issues. Baltimore Police Commissioner (and PERF President) Mike Harrison and I attended the meeting, which also included Deputy Attorney General Lisa Monaco and Associate Attorney General Vanita Gupta. We appreciated the outreach from the Attorney General and his top leaders.

At the meeting we learned that, as part of his April 16 order rescinding the previous Administration’s policy of not pursuing pattern or practice investigations, the Attorney General directed Associate AG Gupta to spearhead a 120-day review of the monitoring process and what improvements could be made.

This seems to be an excellent opportunity for us to identify a set of principles that could help streamline this process and make it less onerous and more transparent. Here are some initial thoughts I had:

Rethink the process. One option would be for the DOJ to complete its investigation and issue findings, but prior to negotiating a settlement agreement have the police department develop an action plan on how it would address the findings. A set of goals could be created and if the department fails to meet them, then a formal agreement could be negotiated and an outside monitor named.

Importantly, police chiefs take great pride in their departments and understandably want to exercise leadership over it. Giving chiefs more independence to show what they can do on their own, without being told what to do by an outsider, could go a long way toward getting departments to buy into the reform process.

Selection of monitors. Monitors must add value to the process. They must know about the changes in policing that have been taking place over the past five years. What happens in some cases is the current chief is more familiar with new ways of thinking than the monitors are, and this can lead to conflict.

Evaluate monitors. We might consider imposing “term limits” on monitors and evaluating them on what they are accomplishing – what value they continue to bring to the process. Monitors could be required to issue monthly reports of their activities.

Contain costs. We all recognize that reforms implemented through a consent decree can ultimately save money by minimizing costly litigation. Still, in many cases, monitors are compensated at rates that are above industry standard, costing cities considerable sums over the lifetime of an agreement. And these are on top of the already large costs associated with policy revisions, training, and other mandated changes.

Speed up the process. There have been approximately 40 settlement agreements – consent decrees and MOAs – between the DOJ and local governments since the Pittsburgh agreement in 1997. The majority of them have lasted five years or more. Some stretched out 8, 10 or (in the case of Detroit) 11 years. Seattle’s 2012 agreement is still ongoing, as is the 2009 consent decree in the U.S. Virgin Islands. The Oakland Police Department has been operating under a consent decree for almost two decades, since 2003. While that agreement was not the result of litigation by the U.S. Department of Justice, it is overseen by a federal judge.

In many instances, agencies have achieved substantial, near 100% progress, but the process drags on. And because the monitors continue to be paid, there is little incentive for them to declare success. We should look for ways to speed up the implementation and monitoring process and set realistic time expectations.

Define what success looks like. We should try to figure out what success looks like in these situations. We could go back and look at past consent decrees that have been successfully closed, learn from those experiences, and try to come up with some general standards of success. Ultimately, the goal should be to get the reforms implemented – and quickly. That is the win-win. And if a department can accomplish this one their own, without having to engage an outside monitor, that is huge!

These are just a few ideas. I’m sure there are many others, and I would like to hear about them from you.

The new Administration is taking a more assertive role in trying to advance local policing – and that is a good thing. This 120-day window of DOJ review provides an opportunity for us to help shape the process moving forward.

PERF is interested in your comments to share with DOJ on how to make the process more effective, timely and done in a way that is a win-win for everyone.

Enjoy the rest of your weekend.