What is a consent decree? What would federal oversight mean for Phoenix police?
Corrections & Clarifications: A previous version of the article provided incorrect information about the number of agencies that have been released from DOJ agreements and the status of the consent decree in Seattle.
Since 1994, the U.S. Department of Justice has started more than 70 investigations into civil rights violations and discrimination by police, 40 ending with consent decrees or other agreements.
The investigations typically last a year. In rare cases, they have taken three years.
For two years and counting, the DOJ has been looking into claims the Phoenix Police Department has engaged in unlawful arrests, discrimination and First Amendment violations. The investigation has cost the city about $5.5 million as of June.
As Phoenix waits for the DOJ to reveal what it has found, some city leaders have started to question what effects the oversight that follows federal investigations have on policing.
Those in support of consent decrees look to the potential decrease in police use of force and civil rights violations, which are typically the focus of DOJ intervention, according to Ben McJunkin, an associate professor of law and associate deputy director for Arizona State University's Academy for Justice.
"But critics of consent decrees primarily point to the possibility that these things will hinder police from doing their jobs effectively," McJunkin said.
Darrell Kriplean, president of the Phoenix Law Enforcement Association, the Phoenix police union, wrote in an opinion piece that a consent decree would hurt police morale, hinder efforts to curb crime and become brutally expensive.
Some studies show that consent decrees lead to lower rates of police violence, while a few others claim that they slow proactive policing and increase crime rates.
But research on the effects of these consent decrees is still new, and it isn't easy to draw clear-cut conclusions.
"There's been a small number of investigations during the last 30 years, so we don't have a lot of data points to work with," McJunkin said.
What is a consent decree?
Consent decrees are one of the few federal tools to encourage systemic reform in police departments, McJunkin said.
Since 2009, there have been at least 16 departments that have entered into consent decrees. Eleven others have entered into other types of agreements with the DOJ in that time.
There are some crucial differences between consent decrees and the other agreements the DOJ might use.
A court orders a consent decree, so if a law enforcement agency doesn't meet the court's standards, it can be held in contempt, and the court can impose hefty fines.
Other DOJ agreements with police agencies — usually a "memorandum of agreement" — are enacted outside the court system and act as a contract. They can lead to lawsuits if broken.
While agreements can have a third-party monitor assigned to oversee their implementation, all consent decrees have one appointed by the court.
These monitors are typically retired police chiefs or lawyers.
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What effect does federal oversight have on police use of force?
Studies that look at police use of force show that consent decrees have had a positive effect on limiting the use of force.
Data available for 12 departments operating under a consent decree after 2009 showed that seven saw slight decreases in shootings by police, and five saw little change. But none had an overall increase.
Decreases were seen in major cities like Seattle, Baltimore and New Orleans, while some smaller cities, like Albuquerque, saw no dramatic difference in police shootings during the years they were under a consent decree.
A University of Texas study published in 2017 looked at 23 places where federal oversight focused on reducing civil rights violations and found that there had been a moderate reduction in use-of-force incidents.
Seattle saw a 68% decrease in the use of force during its decade-long consent decree, according to reports from that city. New Orleans reported that police use of force decreased by nearly 50% between 2016 and 2019.
The University of Texas study's cautious conclusion slightly tips the scales in favor of continuing this type of federal oversight for Michael Scott, clinical professor and director of the Center for Problem-Oriented Policing at ASU.
But the scope of the DOJ's intent should broaden beyond just stopping unconstitutional policing and include promoting good policing, he said.
What effect does a consent decree have on violent crime?
Four of the 26 law enforcement departments that have entered an agreement with the DOJ since 2009 have fulfilled those agreements, according to the DOJ: Miami Police Department, East Haven Police Department, Missoula Police Department and the University of Montana Office of Public Safety.
According to FBI data, three cities with populations over 500,000 saw violent crime increase while under federal oversight. Some had a violent crime trend that paralleled what was happening nationally. Others exceeded the national rise.
A 2020 Harvard study suggested that increases in violent crime may be the result of a chilling effect the agreements had on officers conducting community-based policing. Chicago decreased its police-civilian interactions by almost 90%. St. Louis saw a 46% drop in self-initiated policing.
Portland was placed into a consent decree in 2015. The DOJ launched an investigation there after the killing of Aaron Campbell in 2010. The city saw increases in violent crime following the consent decree, and by 2022, its violent crime rate rose by 59%, passing the national increase of 31%.
Albuquerque, which has also been under a consent decree since 2015, has seen its violent crime rate consistently increase. But its rate, an overall 35% increase, more closely resembles the national 31% rise.
Seattle terminated most provisions of its consent decree this year, according to the DOJ. It also saw increases during its time under federal oversight. The consent decree went into place in 2012, and by 2022, Seattle's violent crime rate was up 37%.
Still, most smaller cities and some larger ones saw decreases in violent crime while under DOJ oversight.
Ferguson, Missouri, which entered into a consent decree in 2015 after the fatal shooting of Michael Brown the year before, saw a drop in violent crime. As of 2022, the rate had risen but has not reached pre-consent decree levels.
Newark, New Jersey, has been under a consent decree since 2016 and has seen a decrease in violent crime year over year, with a 44% drop as of 2022.
Miami, which just exited the consent decree that it entered into in 2016, also saw its violent crime fall. By 2022, its rate was 33% lower than in 2016.
The Los Angeles Police Department was under a consent decree from 2001 to 2009 and saw a decrease in violent crime during that period and for four years after. In 2013, the city saw its rate increase, though it remained lower than in 2001.
Scott said "the key to success" for these cities was that police departments worked with the DOJ and got businesses, city agencies, and communities "off the sidelines and actually engaging with the police in identifying discrete public safety issues."
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How much do consent decrees cost cities?
The cost for a third-party monitor alone can hit over $10 million depending on the length of a consent decree, and the total cost of being under a decree can reach over $50 million.
Albuquerque officials recently said that the city has spent nearly $20 million on overall costs.
Chicago planned to set aside $25 million after entering a consent decree in 2019, according to Chicago records.
The New Orleans Police Department has been under monitoring since 2013, and city staff has reported the total cost, including staffing, monitoring and other changes, to be upward of $55 million.
In 2021, U.S. Attorney General Merrick Garland announced new rules for consent decrees in an online meeting with the International Association of Chiefs of Police.
"The department has found that, while consent decrees and monitorships are important tools to increase transparency and accountability, the department can and should do more to improve their efficiency and efficacy," Garland said.
The DOJ wants monitors to avoid conflicts of interest, so it limited the monitors' fees to discourage profit-oriented applicants. The monitors now also receive training when they start working and are prohibited from being the primary monitor in more than one place at a time.
Additionally, term limits are now set for monitors, with the possibility of renewal through judicial evaluation. The DOJ also increased transparency by making it easier for the public to access monitor bills and review their methods. It also announced that a five-year target should be set to achieve reforms and terminate consent decrees.
DOJ has gained much experience with agency oversight
Scott said the DOJ has learned much after years of implementing oversight agreements. He said Cincinnati is a success story.
After police shot and killed Timothy Thomas in 2001, civil lawsuits led to a federal court agreement that set standards for a board to hear citizen complaints about police misconduct, created a community policing strategy and required the collection of data on police activity, like the use of force, to ensure fair policing.
After six years, federal oversight ended, but the city continued with the reforms and kept working with communities.
In the past 20 years, the city has seen a 27% drop in violent crime and an overall decrease in civil rights violation complaints.
"I think what the DOJ learned out of the Cincinnati experience was that they cannot and they don't need to tell a police agency exactly how to police. They just have to get them to agree to stop doing the unconstitutional things and to support them in adopting new strategies that are both effective and lawful," Scott said. "But changes often require the community itself or the other parts of the government to engage with the police to help them in their public safety efforts. And police ought to see that as a welcome opportunity to get that help."
Reach the reporter at miguel.torres@arizonarepublic.com.
This article originally appeared on Arizona Republic: What would a consent decree mean for Phoenix and its police force?
