More than five months after her nomination, Loretta Lynch has finally been confirmed as attorney general of the United States. No sooner did she assume office than Baltimore exploded into a level of civil unrest not seen there since 1968. Charm City is the latest symptom of a profound crisis of law enforcement that began with the killings of Eric Garner and Michael Brown last summer and continues as high profile police killings of unarmed black men occur almost every week. This crisis is one of the biggest issues facing Lynch, but unfortunately the record of the Department of Justice (DOJ) on police reform is discouraging.
Many advocates, including the Rev. Al Sharpton, have called on the federal government to hold local police accountable for misconduct and investigate the systematic policies that lead to abuses. Activists often feel that local district attorneys are unwilling to bring officers to justice. Thanks to rules developed during the civil rights era, the Justice Department is authorized to pursue individual police officers through civil rights prosecutions. This power has been used successfully on occasion, including high-profile federal convictions for the officers in the Rodney King case and New Orleans officers who killed Hurricane Katrina survivors and then covered it up.
Since 1994, the DOJ has also been authorized to undertake pattern and practice investigations, reports and litigation in cases in which there is evidence of systematic civil rights abuses. The ability of the DOJ to expose problems and bring pressure to bear on local departments under the threat of legal action or withholding federal funds is an important check on local political and police power. Certainly, no one expected the police department in Ferguson, Missouri, to reform itself. In addition, many activists hope that federal intervention will give the DOJ more power in its future dealings with local police.
The first problem with DOJ intervention is that individual prosecutions and pattern and practice investigations are fairly rare. The DOJ civil rights division that oversees this process has only 50 lawyers, some of whom are assigned to other tasks. In individual actions, the standard of proof requires evidence of intent to deprive someone of his or her rights under the law — a hard standard to meet, since if actions are taken in the heat of the moment and if any possible threat to officers exists, that undermines such prosecutions. Even former Attorney General Eric Holder said that the bar in such cases is very high. The DOJ is reluctant to undertake such prosecutions because they can be viewed as major federal intrusions into local justice systems; only the most clear-cut cases are likely to be brought. In a country with close to 1 million police officers, only about 100 cases a year are pursued. The DOJ was unable or unwilling to bring charges in the Trayvon Martin and Brown cases.
Pattern and practice cases are expensive and complicated and always politically fraught. Local police are often reluctant or completely unwilling to cooperate, forcing additional litigation, increased costs and delayed reforms. Another challenge is that the U.S. has about 17,000 independent police departments, each with its own way of doing things. While some states have uniform policy standards and the Supreme Court has set some limits on police, most departments have remarkable autonomy. A political or legal victory imposing changes on police in one jurisdiction may have no bearing on the one next door.
More important, even successful cases rarely result in sustained or systematic changes in police behavior. In 1999 the DOJ entered into a consent decree (in which a court supervises a settlement without any party admitting liability) with the New Jersey State Police for racially disparate traffic stops. But an in-depth study of its practices from 2005 to 2007 showed that stops were still racially disproportionate, with 75 percent directed at black or Latino motorists — despite the DOJ’s finding that the New Jersey State Police made the procedural changes the department requested.
In Cleveland the DOJ spent four years investigating allegations of excessive use of force and got the local police to agree to a change in policy prohibiting officers from shooting at fleeing vehicles unless there was an immediate threat to life and to provide new training to officers. That agreement seemed to have little effect last May, when officers killed an unarmed driver and passenger after firing 137 shots at them because they mistook an engine backfire for a gunshot.
One reason for the DOJ’s poor track record is that it tends to impose procedural rather than substantive changes in policing. Its most cutting-edge proposals call for improved training, installing dashboard and body cameras and improving recordkeeping and the use of technology. The DOJ’s report on police practices in Ferguson contained some laudable recommendations for reducing the abuses of summonses and low-level arrests it identified. Unfortunately, its main recommendation was to implement a system of community policing — a solution that has historically proved ineffective or worse.
What is not discussed in the Ferguson report or in any other DOJ document is the most pressing issue facing law enforcement today: ending the overpolicing of communities of color. Instead of taking cosmetic steps to contain local crises, the DOJ should demand a long-term re-examination of the expanding role of the police and the ways in which that exacerbates racial and class inequality. A respectful, nonracist and legally justified arrest for marijuana possession can still threatens catastrophic consequences, including unemployment, loss of federal benefits and the stigma of a drug arrest. As I’ve written before, we need fewer cops, not just better cops.
Unfortunately, nothing in Lynch’s past suggests that she will undertake structural reform. As U.S. attorney for the Eastern District of New York, she was involved in only one case of police misconduct, the brutal 1997 beating and sexual assault of Abner Louima. While her team won a conviction, Louima’s lawyer accused her of failing to bring charges in other clear cases of abuse. Others charged her with ignoring broader patterns of misconduct that might have implicated the NYPD’s street crimes unit — the plainclothes anti-crime unit involved in the 1999 killing of Amadou Diallo — and then-Mayor Rudolph Giuliani.
Lynch has continually stressed that minority communities need to place more trust in police. According to her aides, she sees improving police morale as one of her top priorities. Unlike Holder, she has been a forceful participant in the war on drugs and opposes exploring changes in federal marijuana law. The Justice Department has never been an ideal institution for taming the police, but under Lynch the fight for reform may become even more difficult.