The Obama-Era Police Reform Biden Can’t Wait to Restart

Erick Trickey

On December 4, 2014, Cleveland was in turmoil. Just days before, a white police officer had killed a 12-year-old boy playing in a park with a toy gun. The city was outraged at its police department, which many said was ill-trained, poorly supervised, and deeply troubled. On that day, Attorney General Eric Holder arrived in town with a report that seemed to bear out those complaints.

“In recent days, millions of people throughout our nation have come together, bound by grief and bound by anguish,” Holder said, mentioning Tamir Rice’s death and the killings earlier that year of Eric Garner in New York City and Michael Brown in Ferguson, Missouri.

With that, Holder announced the results of the Justice Department’s 1½-year investigation in Cleveland. “There is reasonable cause to believe that the Cleveland Division of Police engages in a pattern and practice of using excessive force,” he declared. The report Holder delivered was a scathing indictment of Cleveland police for “poor and dangerous tactics,” pistol-whippings, guns fired at “unarmed or fleeing suspects,” and of supervisors “all the way up the chain of command” who usually “approved the use of force as appropriate.”

By this point in Obama’s second term, the Justice Department had issued 13 reports alleging sweeping civil rights violations by police forces in major cities across the country. The reports from these “pattern or practice” investigations formed the basis for consent decrees that mandated reforms under the eye of a federal judge. Cleveland’s consent decree, signed five months after Holder’s visit, included 380 specific reforms, including new training on the use of force, protocols for responding to the mentally ill and bias-free policing, and changes intended to hold police more accountable for violations.

Obama-era consent decrees are still underway in about 20 cities, making them the dominant police reform effort in the nation. Police accountability experts say they have brought meaningful, if mixed, results to dozens of police departments. Cleveland, for example, has seen its use of force numbers drop by nearly a third. Today, in the wake of a series of shocking killings of Black people, the U.S. House of Representatives has passed a sweeping legislative package to overhaul the nation’s 18,000 police departments, while Senate Republicans and Democrats clash over competing reform bills. And activists across the country are demanding changes as drastic as defunding the police. But the Justice Department‘s pattern-or-practice investigations remain perhaps the best predictor of how a Biden administration would approach police reform.

In his Rose Garden remarks on June 16, President Donald Trump, announcing his own executive order on police reform, said Obama and Biden “never even tried to fix [police behavior] during their eight-year period. The reason they didn’t try is because they had no idea how to do it.” But in fact, it was Trump and Jeff Sessions, his first attorney general, who called a near-halt to investigations of police departments, all but abandoning enforcement of the most powerful federal powerful law to combat police misconduct. Their argument that the federal government shouldn’t regulate local police pleased police unions. In Cleveland, the patrolman’s union had endorsed Trump in 2016 after its president complained to him about the “false narrative” of Black Lives Matter and extracted a promise that “you’re going to have a friend in the White House.”

Trump’s executive order makes concessions to the intensifying clamor for wholesale change, such as a national database of police officers fired for excessive force and encouragement of deescalation training. But it stops well short of threatening the goodwill he has enjoyed with law enforcement and its unions. Trump’s attorney general has demonstrated no interest in using the “pattern or practice” tool that unions have found so noxious to investigate Minneapolis police, though the Department of Justice has not ruled it out.

Biden wants to revive pattern-or-practice investigations. The former vice president—whose relationship with police unions is much frostier than with the rest of the labor movement—has already pledged to bring back federal oversight of police departments, which he says ought to follow “basic standards of decency and honorableness.” He has promised to seek subpoena power for pattern-or-practice investigations, which could force reluctant police officials to answer questions about why they adopted their policies. Rather than heeding calls to “defund the police,” which he opposes, Biden would pump more money into programs that would help local departments meet the standards established under the consent decrees.

As Biden and Trump debate how to remake the nation’s police departments, it’s worth looking at what the consent decrees have accomplished.

Five years in, Cleveland’s police reforms are still a work in process. Use of force incidents are not only down, they’re less likely to result in injuries to police and civilians. Cleveland has rolled out new policies, training, and disciplinary rules. It’s negotiated a change in the police union contract, eliminating a rule that purged misconduct records from officers’ personnel files.

But Cleveland activists, a prominent civil-rights lawyer and members of an advisory commission on police issues say the work is far from finished. The biggest question — the change none of them can vouch for — is whether the reforms have altered the police department’s culture.

“I think the fact that we have someone who’s policing the police provides a certain level of stability and confidence that we don’t live in a police state,” says the Rev. Jawanza Colvin, pastor of Olivet Institutional Baptist Church and one of the first Clevelanders who asked the Justice Department to investigate the Cleveland police. “We know there’s a way to get a redress of grievances.”

In other cities, some police departments have completed the mandated reforms and are nearly ready to be released from their consent decrees, according to federal monitors. But it is worth noting that even those cities have experienced massive protests over the past several tumultuous weeks. And, most worrisome for activists in those cities, the police have often responded to those protests with levels of violence that raise questions about how much has really changed.

“If you read the decree, everything on paper, it’s a wonderful concept,” says Toca Allen, a Cleveland activist who fled police tear gas at a protest of George Floyd’s death. “But if we’re not implementing those things, it’s all in vain.”

Joe Biden’s progressive critics often blame the 1994 crime bill he helped author for furthering mass incarceration of Black Americans. But one of the bill’s less discussed, most progressive provisions gave the Justice Department the authority to investigate local police departments.

The Clinton Administration used the new law to investigate the Los Angeles Police Department, in the wake of the 1991 beating of Rodney King. Its consent agreement with the LAPD, which cost $300 million, took nine years to implement. A Harvard University study of the L.A. reforms found that uses of serious force dropped for five years straight as the decree was implemented, and that at the end, 83 percent of L.A. residents, including more than two-thirds of Blacks and Hispanics, said the LAPD was doing a good or excellent job.

The Clinton administration forged six such agreements, including with the Pittsburgh police and the New Jersey State Police. The George W. Bush administration struck 11 agreements, mostly with cities where Clinton lawyers had opened investigations, including Detroit, Buffalo, and Washington, D.C. In 2008, it initiated a probe of the Puerto Rico Police Department, the second-largest police force in the U.S., which led to a consent decree five years later.

The Obama administration used the law even more aggressively. It launched 23 investigations, found constitutional violations in nearly all of them, and forged 25 reform agreements. Most remain in effect today; once they’re signed, a federal judge and a court-appointed monitoring team enforce them, with some input from local Justice Department lawyers. They’re typically set up to last until the reforms are implemented — a process that takes at least five years, usually more. Data on the reforms’ effectiveness usually emerges late in a consent decree’s lifespan, after cities rewrite policies, train police on them, and collect new data about their effects.

Many consent decrees have successfully improved police departments, police accountability experts say, though some have stalled due to stubborn resistance from police or local officials.

“I think the major accomplishments of the Justice Department’s program have not been recognized, not appreciated and not even been discussed,” says Samuel Walker, a criminology professor emeritus at the University of Nebraska, Omaha. “Probably the most astonishing success story—I wouldn’t have believed it—is New Orleans,” Walker says. “Right before the consent decree, it would have been on anybody’s list as one of the worst police departments in the country.” Now, police shootings, pursuits and citizen complaints there have all declined; police shot nine people in 2012, none in 2018. Meanwhile, says Walker, sergeants’ internal complaints against officers are up, an indication that they’re holding officers more accountable.

Today, the consent decrees in New Orleans, Seattle and Portland are nearing completion. Seattle’s monitor found that more serious uses of force declined 60 percent between 2011 and 2016 as its decree was enforced, while crime rates remained flat. In Portland, the police used force against nearly 300 people in the first quarter of 2018; that declined to less than 200 in the last quarter of 2019 as reforms set in. (Consent decrees aren’t intended to lower uses of force, but to make sure they’re constitutional; still, a decrease could suggest that deescalation training has reduced violence between police and citizens.)

“There’s nothing like a consent decree to force a focus on long-term police reform,” says Vanita Gupta, who was Obama’s last head of the Justice Department’s civil rights division. “It forces the political will locally to stay focused on police reform—and not focused on it after a crisis.”

Other Obama-era consent decrees are farther from completion, either because they started later, or due to intransigence from local leaders. In Puerto Rico, the consent decree monitor faced opposition from former Gov. Ricardo Rossello. The monitor resigned last year, charging that the Justice Department and the federal judge overseeing the decree weren’t taking enough action and that $5 million to $7 million a year in legal fees were going to waste. In Albuquerque, the 6-year-old consent decree is nowhere near completion. The monitor warned last year that “Sergeants and lieutenants, at times, go to extreme lengths to excuse officer behaviors that clearly violate established and trained [police] policy.” Police officials, the monitor wrote, sometimes let violations lie dormant until time limits for internal investigations, required in the police union contract, run out.

Local resistance is the key reason that consent decrees’ successes have been mixed, according to Craig Futterman, a University of Chicago law professor who’s helped expose police brutality in his city. “Generally, you have a culture that’s deeply ingrained” in troubled police departments, Futterman says. “Culture trumps policy anytime. Changing the culture of a police department takes time.”

Some police departments under consent decrees go through a progression something like the stages of grief. “The first stage is, in some departments, you just get resistance: People can say they won’t do this,” says Chuck Wexler, executive director of the Police Executive Research Forum, which promotes progressive policing in big cities.

“In the second stage, you get acceptance, but now the hard work begins. In the third stage, you start to get momentum.” Wexler says police chiefs who’ve gone through consent-decree reform have told him it improved their departments. “It’s probably like root canal surgery,” he says. “While you’re undergoing it, it’s not so great. But when it’s done, you’re happy you had it done.”

Reforms in Baltimore and Chicago are just getting started. In the Obama administration’s last days, the Justice Department signed a consent decree with Baltimore and released a report finding a pattern of excessive force among the Chicago police. After Trump’s inauguration, incoming attorney general Jeff Sessions tried unsuccessfully to delay the Baltimore agreement. Rather than negotiate one with Chicago, Sessions opposed the Illinois attorney general’s decision to step in and reach a consent agreement with the city in January 2019, calling the agreement a “colossal mistake,” “anti-democratic” and an “insult” to Chicago police officers.

In Baltimore, reform has moved slowly, in part because of turnover in the mayor’s and police commissioner’s offices. The monitor’s latest report, from January, says the police department “is still in the ‘easy part’ of the reform process—policy revision, training, self-evaluation, planning. [It] has yet to prove that it can do the ‘hard part’”—implementing its new plans.

Meanwhile, Trump’s Justice Department has barely used the police-reform law—no surprise, given Trump’s wink at police brutality in a 2017 speech to police on Long Island. Sessions sharply limited its use in 2017 and 2018 memos. Justice has negotiated just a pair of settlements, with the city police and local sheriff in the same small town of Ville Platte, Louisiana, and opened only one pattern-or-practice investigation: into the police narcotics unit in Springfield, Massachusetts.

Cleveland’s clamor for police reform rose up after November 29, 2012, the night that 13 officers fired 137 shots after a 60-car police chase, killing the unarmed driver and his passenger. Rep. Marcia Fudge, the local NAACP, and the Rev. Colvin of Olivet Baptist each asked the Justice Department to investigate the police department’s use of deadly force. (Cleveland’s mayor followed suit a few weeks later.)

But it took almost five years for the first substantive reform to arrive: a more restrictive use-of-force policy that emphasizes deescalation. In 2017, all Cleveland police were trained on it. Now, the city’s police use force less often, and when they do, they injure civilians less often.

“I think we’ve made a drastic improvement,” said the Rev. Frederick Knuckles, co-chair of the Cleveland Community Police Commission, an advisory board created under the consent decree.

The use-of-force policy introduced bans on chokeholds and pistol whipping and severely restricted force against handcuffed suspects. It also strengthened officers’ duty to intervene if another officer uses excessive force, and it added a duty to provide emergency first aid to anyone the police have injured.

The new training requires officers to role play use-of-force scenarios, including peer intervention. Some parts of the training read as if written to prevent a repeat of the Tamir Rice killing—in which an officer, responding to a report of “a guy with a gun,” shot the 12-year-old at nearly point-blank range within two seconds of leaving his squad car. “Separat[e] from the threat and create a safe distance to speak with subject(s),” the policy advises. “When safe and feasible to do so, and before using force,” it adds, “officers shall attempt to slow down the situation so that more time, options and resources are available.”

In 2018, the year after the new training, use of force by Cleveland police officers dropped 29 percent, from 237 to 168 incidents, according to the consent decree monitor, who uses data compiled by the police department. Police injured people half as often—in 20 percent of incidents, down from 39 percent the year before. Injuries to officers while they used force declined too, by 22 percent. Meanwhile, major crime in the city declined. In the first half of 2019, force incidents ticked up slightly, but stayed far below 2017 levels. Crime kept declining. “I believe the policy has made a strong difference,” said Sgt. Richard Jackson, who represents the Black Shield, an association of Cleveland’s black and minority police officers, on the Cleveland Community Police Commission.

The consent decree requires Cleveland police to improve their search and seizure policies, measures for disciplining officers and responses to mentally ill people in crisis. Police training now includes a half-day a year on bias-free policing. The decree was designed to last five years, but that anniversary arrived last month, and the city isn’t in compliance yet: It’s got to rewrite more policies and add more data collection on the practices being reformed before the monitor will release it. The cost of reform is expensive—about $4 million a year, borne by the city—one of the reasons Cleveland voters approved an income tax increase in 2016.

Some activists on police issues don’t think they’re getting their money’s worth. Toca Allen, who attended a May 30 protest of George Floyd’s death in downtown Cleveland, criticized the police’s use of tear gas and flash-bang grenades after some in the crowd threw plastic bottles and other objects. “[It] was an example of them not following any of the things they’d laid out to protect themselves, and to protect our city, and to protect our citizens,” she says.

Kareem Henton, co-founder of Black Lives Matter Cleveland, has criticized how police handled the April 9 killing of Desmond Franklin by an off-duty officer. “The consent decree is very powerful on paper,” he says, “but because there’s a lack of willingness to give it some teeth and actually enforce it, because of the complicit culture that exists within the Cleveland Division of Police, it’s just paper.” Henton feels Cleveland’s mayor and City Council haven’t pushed hard enough to hold police accountable. “I contend we have the wrong people in office around us for that decree to be effective.”

Subodh Chandra, a civil rights attorney in Cleveland, says his firm still receives as many complaints of excessive force by city police as it did before the decree. “Any purported changes in policy are only as good as the buy-in you have from police officers,” Chandra says. He’s not optimistic, “given the Cleveland police unions’ overt hostility to any change and defiant denial that there’s any problem at all.”

Police accountability activists and experts say police unions’ opposition to discipline of officers is a major barrier to reform. Cleveland’s consent decree mandates 74 changes in police accountability procedures, but decrees can’t force revision of union contracts. Cleveland Mayor Frank Jackson has complained that the Justice Department didn’t challenge binding arbitration, a common provision of police contracts that gives arbitrators the power to overturn punishments and force cities to rehire fired officers.

Steve Loomis, who was president of the Cleveland Police Patrolmen’s Association in 2015 when the consent decree was signed, denounced the decree, engineered the union’s 2016 endorsement of Trump, attended one of Trump’s inaugural balls, and called the new Cleveland Community Police Commission, on which he served, “a farce.” Loomis lost the union presidency in late 2017. His successor, Jeffrey Follmer, continued the union’s appeal of the firing of Timothy Loehmann, the officer who killed Tamir Rice, while taking a less defiant public tone than Loomis. Follmer calls the Justice Department report “one-sided” and the consent decree unnecessary but adds, “it’s here, and we gotta deal with it.” Follmer says the union won’t endorse a presidential candidate this year. “Obviously, a lot of police officers were pro-Trump,” he says, but “they don’t want to be crossed up in between the Democratic and Republican [parties].”

Recommendations in Cleveland’s consent decree did lead to changes in the union’s contract. Until 2016, the contract required the city to remove disciplinary records from officers’ service records after two years and records of lesser discipline after six months. Critics have called such provisions—common in police union contracts across the nation—barriers to tracking and punishing police misconduct and keeping rule-breakers from being promoted. In the consent decree, the city agreed to “work with the unions to allow for sustained disciplinary findings to stay in an officer’s record for ten years” and to eliminate a contract provision that banned anonymous citizen complaints against police.

In 2016 contract negotiations, the union agreed to drop the provisions that required handwritten citizen complaints and removal of disciplinary records. But it rejected the Justice Department’s recommendation of a 10-year time frame for considering past discipline in officer evaluations. The contract now includes a rule that “disciplinary suspensions shall not be used for progressive discipline purposes after three years,” nor lesser discipline after one year. Those times didn’t budge in the new contract negotiated in 2019. Follmer says the city didn’t press to increase the three-year limit then. “In your job or my job as a police officer, if you hold discipline over someone’s head three years, that’s a long time,” he says. “As a union, we’ll never go for anything more.”

Follmer’s just as committed to binding arbitration. “Arbitrators are the only place where we get a fair shake,” he says.

Reform by consent decree hasn’t kept protesters from demanding further changes in policing. Today, New Orleans and Seattle police, like Cleveland’s, face criticism for firing tear gas and other projectiles amid recent protests and unrest. Seattle took a step toward ending its consent decree in May, then reversed itself after residents filed 14,000 complaints about the department’s response to recent protests. Seattle activists have forced the shutdown of a police precinct and created a protest zone around it; many are demanding that the city abolish the police. Chicago’s consent decree monitor announced this month that she’ll investigate possible rights violations by police during protests there. This month, Albuquerque’s mayor announced he intends to create a “community safety department” of unarmed professionals who’ll respond to calls about nonviolent concerns such as mental-health crises, instead of police.

Still, if Biden wins in November, he and congressional Democrats are unlikely to meet an invigorated left’s demands to defund or abolish police. Instead—if his website’s pledges are any indication—pattern-or-practice investigations and consent decrees could come back stronger and better-funded than ever. Clevelanders and national police accountability experts say Biden could make federal police-reform efforts more effective by learning lessons from Obama-era enforcement. Ex-Justice Department lawyers say new ways could be developed to measure the progress of reform.

Wexler, of the Police Executive Research Forum, says he’d like to see the federal government collaborate more with local police reforms. “Consent decrees are a method to deal with the most intransigent departments,” he says. But they can deal with only a tiny fraction of the country’s departments. “The one part of this process that is a tough pill to swallow is this notion that the department is under federal oversight,” Wexler says. “Is there a way to build a model that accomplishes the same thing, but somehow gives police departments that sense that they’re making the changes?”

Advocates say the Justice Department should let community groups join its cases, which could lead to stronger enforcement. In Chicago, Black Lives Matter, the NAACP, the Urban League and other groups reached an agreement with the city and the Illinois attorney general that gives them the power to enforce the consent decree in court. “That’s one of the things that gives me hope, or far greater hope,” says Futterman, the University of Chicago professor.

Consent decrees, advocates say, should insist on stronger permanent civilian oversight of police, even after the decree has ended. Clevelanders complain that the new police commission and an older civilian police review board lack the power to compel reform or discipline officers; they can only recommend it.

Justice Department lawyers “need to mandate community control over some aspects of the review of law enforcement when they’re behaving badly,” says Henton, the Black Lives Matter Cleveland co-founder. Chandra, the attorney, favors a police commission similar to the Los Angeles Board of Police Commissioners, which oversees the police chief and sets policy. He says the Justice Department shouldn’t shy away from requiring restructuring of city government to increase accountability. “[It] requires charter reform,” he says, “but I think the voters would support it.”