Trump’s Department of Justice could kill police reform
If and when Alabama Sen. Jeff Sessions assumes the role of United States attorney general in Donald Trump’s new administration, he will inherit a Department of Justice that has devoted considerable attention and resources to police reform over the past eight years.
In fact, former Attorney General Eric Holder repeatedly described the Civil Rights Division — which investigates law enforcement agencies that may be discriminatory or violating people’s rights — as the department’s “crown jewel.”
Sessions’ voting record and statements as a senator, however, reveal that he mostly wants the federal government to stay out of policing. And the president-elect, who called himself the “law and order” candidate, campaigned on a tough-on-crime, pro-police platform. Their stances signal a dramatic shift in priorities for the nation’s top law enforcement agency at a time when tensions surrounding police shootings show no sign of easing.
The Justice Department under President Barack Obama focused on criminal justice and police reform more heavily than past administrations did.
Laurie Robinson, who served as assistant attorney general from 1993 to 2000 and then again from 2009 to 2012, characterized Obama’s personal interest in the issue as “highly unusual” for a president but “helpful in spearheading attention.”
Ezekiel Edwards, director of the Criminal Law Reform Project at the American Civil Liberties Union, added that “the Obama administration understood better than previous administrations the calamities that were taking place.”
To their points, in the past seven years, the Justice Department has launched investigations into 23 law enforcement agencies. While the number itself isn’t much of a departure from the Bush administration, according to an analysis by Frontline, what’s different is the number of investigations that led to consent decrees. A provision in the 1994 crime bill gives the Civil Rights Division the authority to investigate law enforcement agencies for structural problems, and where necessary, mandate reforms through court-enforceable agreements called consent decrees.
Under Obama, 11 law enforcement agencies, including in Seattle; Ferguson, Missouri; and Cleveland, have been forced to comply with changes recommended by the Justice Department through consent decrees. During the Bush administration, by comparison, the department imposed only three consent decrees: one in Cincinnati and two in Detroit.
Sessions, it would appear, is no fan of consent decrees. In the introduction he wrote to a 2008 report from conservative think tank the Alabama Policy Institute, Sessions described consent decrees as “dangerous” and creating a “run around the democratic process.”
In the interest of a smooth transition, William Yeomans, who served in the Civil Rights Division from 1978 to 2005, thinks Sessions would initially continue to enforce consent decrees, as well as allow some ongoing investigations to continue. But for how long, he isn’t sure.
“I’m afraid, based on Trump’s rhetoric and Sessions’ background, that we’re going to see a decline in enforcement, and investigations will slow down,” Yeomans said. “There’s a sense that they don’t believe that police departments should be put under federal supervision.”
Sessions has also made it clear he believes the Justice Department and the Civil Rights Division under Obama have politicized reform efforts.
“I’m afraid, based on Trump’s rhetoric and Sessions’ background, that we’re going to see a decline in enforcement, and investigations will slow down.”
“There is a perception, not altogether unjustified, that this department and the Civil Rights Division goes beyond fair and balanced treatment …. That’s been a troubling issue for a number of years, frankly,” he said at a Judiciary Senate Committee hearing in November 2015 called “The War on Police: How the Federal Government Undermines State and Local Law Enforcement.”
Sessions slammed the then-newly appointed Civil Rights Division head Vanita Gupta and her predecessor Tom Perez for taking what he described as a “punitive approach to law enforcement agencies.” He also interrogated Gupta on her previous positions at both the American Civil Liberties Union and the National Association for the Advancement of Colored People. “I’m just saying you come from a background that indicates an aggressiveness in these cases,” Sessions said.
In June, outgoing Attorney General Loretta Lynch announced a new program that would train all federal prosecutors and law enforcement in understanding and recognizing their own unconscious biases — whether related to race, gender, sexual orientation, socioeconomic status, or religion.
“It’s been a difficult couple of years for this conversation,” Lynch said recently at a panel on race relations and law enforcement. “The problem is the lack of open discussions about the impact of race relations in this country.”
There’s a saying in policing, according to Seth Stoughton, an assistant professor at the University of South Carolina School of Law and a former Tallahassee police officer: “There’s two things that cops hate: change and the way things are now.”
Reluctance might stem from the perception that Obama, Holder, and Lynch have been overly sympathetic to concerns raised by the Black Lives Matter movement, a decentralized activist movement that formed in 2012 after a neighborhood watchman was acquitted of fatally shooting Trayvon Martin, an unarmed black teenager, in Florida. “Administration officials have been viewed as siding with activists and agitators, rather than siding with law enforcement,” Stoughton said.
“There’s two things that cops hate: change and the way things are now.”
After police shot and killed Alton Sterling in Louisiana, and Philando Castile in Minnesota a day apart, Trump said videos of civilians being shot by police officers were “terrible” and “disgusting” but also accused Black Lives Matter of “dividing America.” Those high-profile deaths sparked protests, and during one in Dallas, a sniper unaffiliated with the demonstration opened fire on police, killing five and injuring nine. A little over a week later, a separate ambush on police took place in Baton Rouge. Afterward, Trump accused Black Lives Matter of helping to instigate the incidents and suggested he would have his appointed attorney general investigate the movement.
Sessions, at the “War on Police” hearing, criticized what he saw as the Civil Rights Division’s failure to condemn inflammatory statements like “Pigs in a Blanket, Fry ’Em Like Bacon” made by individuals claiming affiliation with the Black Lives Matter movement. “I do think it’s a real problem when we have Black Lives Matter making statements that are really radical, that are absolutely false,” he said.
Meanwhile, Sessions has been unable to shake off allegations of racism, which cost him a federal judgeship 30 years ago, making him a controversial pick for attorney general with a tough confirmation ahead.
During a Senate hearing for the End of Racial Profiling Act of 2001, which died in Congress before lawmakers could vote on it, Sessions did recognize bias in policing as a genuine problem. He said the fact that some Americans felt like they were “more likely to be arrested or held to account or stopped and searched than someone else simply because of the color of their skin” was unacceptable.
The bill proposed that law enforcement agencies would collect data on “routine investigatory activities” — including stop data, arrest data, and so on — and submit that information to the Justice Department, which would make a determination if any agencies were racially profiling.
Sessions’ opposition to the data collection hinged on what’s now known as the “Ferguson effect” — that increased scrutiny on law enforcement conduct could have a chilling impact on how aggressively officers police high-crime neighborhoods and place them in what he described during the Senate hearing as a “catch-22.”
Sessions quoted an article from a Seattle newspaper: “‘Amid charges of racism, many Seattle police officers say they are cutting back on the number of arrests they make in minority communities,”’ he read. “The practice is growing among individual officers who fear more aggressive police work will be labeled racial profiling.”’
On the other hand, Lynch testified before the House Judiciary Committee in November 2015 that no data backed up the Ferguson effect, and in early October, the department announced it would begin tracking use-of-force incidents, previously handled by high-profile projects like The Guardian’s The Counted.
Aside from federal oversight, the Justice Department awarded $119 million in October to Community-Oriented Policing Services, or COPS, a subdivision of the department established by the 1994 crime bill. COPS provides federal grants to law enforcement agencies to hire and train community police officers, who are assigned to one neighborhood in an effort to build relationships with residents.
At the “War on Police” hearing last year, Sessions said he thinks that community-based policing is “a great thing,” but it was “clear that police officers all over America are concerned” about the actions taken by the Justice Department against police departments and officers in recent years.
And in 1999, Sessions voted against an amendment that would have authorized $1.15 billion per year from 2000 to 2005 to continue and expand the COPS program. He also voted against reinstating the same amount in 2007.
While Trump told the International Association of the Chiefs of Police he would support community policing at a federal level when necessary, he has also called police officers “the most mistreated people in the country” and supports stop-and-frisk policing on a national level.
“If you take Donald Trump at his word, he is not a fan of community policing. He has used the [former New York City Mayor] Rudolph Giuliani line, which was that stop and frisk was a great thing and we need hard law enforcement, not more community policing,” Yeomans said.
As part of recommendations set by a multidepartmental Task Force for 21st Century Policing report last year, Obama signed an executive order curtailing military surplus equipment, including grenade launchers and armored vehicles, made available to law enforcement agencies through the Department of Defense’s 1033 program. The bottom line was that a cultural sea change was needed, that law enforcement must shift away from creeping militarization and toward community policing.
When courting the Fraternal Order of Police during his campaign, Trump promised them he would reinstate the “excellent” 1033 program — which provides equipment from blankets to armored vehicles — in its entirety. The group, the nation’s largest police union, endorsed Trump. He was the first candidate to win their approval since Bill Clinton did in 1996.
Additionally, Sessions supports civil forfeiture and has said that ending the program would be a “huge detriment to law enforcement.” The practice, made possible by the Justice Department’s Equitable Sharing Program, allows police to seize assets related to criminal investigations without having to file charges. Police can also keep up to 80 percent of what they seize.
Two years ago, The Washington Post obtained records dating from 2008 that showed departments were spending civil forfeiture money on “guns, armored cars, and electronic surveillance gear.” The current Justice Department has flip-flopped on the issue.
One of the many tasks that will land on Sessions’ desk — unless wrapped up by Lynch before her departure — would be the long-stalled federal investigation into the controversial death of Eric Garner in 2014. Garner, a 43-year-old black man, died as a result of a police chokehold, a banned maneuver, more than two years ago in Staten Island, New York.
Garner’s final words, “I can’t breathe,” became a rallying cry for police reform, helped trigger the growth of the Black Lives Matter movement, and shone a spotlight on the withering trust between police and the communities they serve.
David Harris, a professor at the University of Pittsburgh School of Law who once testified before Sessions at a Senate hearing on racial bias in 2001, thinks the incoming attorney general could instead shift focus toward other issues, like human trafficking or voter fraud, by shuffling career attorneys between divisions within the Justice Department. “That might change the trajectory of police reform,” he said.
If Sessions’ record in the Senate or as Alabama’s attorney general is any indication, these are all issues he has litigated and feels passionately about. But a new attorney general in town, with a new focus, doesn’t necessarily mean police reform efforts in the Obama years are moot.
“I don’t think that the DOJ under Sessions or a Trump administration is going to be able to derail police reform efforts,” Stoughton said. “But I think over the next four years, police reform efforts are more likely to move despite federal policy, rather than because of federal policy.”