One day in Chicago, a 16-year-old girl took a cellphone to school. This was against school rules, so school officials asked her to leave. When she didn’t, they called the police to arrest her for trespassing. The officers said that as they began to arrest her, she flailed her arms. So they hit her with a baton and then used a Taser on her.
According to a new report from the Department of Justice, this incident wasn’t unusual. That report concluded that the city’s police department—the second-largest in the country—habitually violates Chicago residents’ constitutional rights. Whether it’s using Tasers on children, shooting at unarmed suspects who are fleeing, or singling out residents for arrest just because they’re black or Hispanic, the DOJ concluded that Chicago’s police department has deep, systemic problems.
If he’s confirmed as attorney general, Jeff Sessions will be able to decide what to do about it—including whether to use the federal courts to force the department to make substantial reforms. Justice Department experts expect Sessions to be less proactive about policing oversight than Obama’s attorneys general have been.
Sessions’s confirmation is all but guaranteed, given that he has no Republican opposition in the Senate. The Senate will likely vote to confirm him in early February.
Meanwhile, the city of Chicago will be negotiating what’s called a consent decree with the Justice Department, based on the report’s findings and recommendations. Consent decrees are enforced by federal courts and usually take months to negotiate. And as attorney general, Sessions would have the power to end them—meaning there wouldn’t be a legal requirement that the Chicago Police Department reform itself.
Samuel Walker, a professor emeritus at the University of Omaha and expert on policing, said there’s a good chance Sessions will make that move.
“That’s a very real possibility,” he told The Daily Beast.
Of course, Chicago’s police department can reform itself without pressure from the DOJ or federal courts. But civil rights advocates argue that the legal weight of a consent decree can make reforms more impactful than voluntary changes alone. Critics of consent decrees note there’s little data to indicate they have long-term results (though that doesn’t mean they aren’t effective).
If Chicago Mayor Rahm Emanuel and the DOJ don’t come to an agreement before Sessions becomes attorney general, then the city’s police department may get off the hook.
“This is going to be a real political test for Mayor Emanuel,” said Walker. “If he wants to drag it out beyond Feb. 1, such that Sessions can then order it stopped, that could happen. That will say that Mayor Emanuel, despite all his words in the last year and a half, he’s not really serious about police reform.”
Emanuel has said he will make changes in the department regardless of whether or not Sessions gets confirmed.
“We’re going to negotiate,” Emanuel said, according to The New York Times. “I can’t negotiate, assuming Jeff Sessions gets confirmed, I can’t negotiate for him. But we’re going to be at the table.”
Conservative critics of consent decrees predict that the Justice Department will pursue them less frequently if Sessions becomes attorney general. Hans von Spakovsky, a legal scholar at the Heritage Foundation, argued that the Justice Department uses consent decrees to bully police departments into making changes they don’t want but can’t afford to fight in court.
“All of this will end with Jeff Sessions,” von Spakovsky told The Daily Beast. “He will pursue violations of the law to the full extent but he is not going to go beyond the authority of those statutes. And the Left is going to no longer be funded through these nefarious consent agreements. Those kinds of corrupt practices will no longer be acceptable in the Justice Department.”
Tom Fitton of Judicial Watch is another conservative critic of the Obama Justice Department’s use of consent decrees.
“The process is abusive and part of the War on Police that Mr. Trump and Mr. Sessions have highlighted,” he said.
“Many taxpayers may be surprised to learn that they don’t actually run their police departments anymore, that they keys of the police departments have been turned over to the Justice Department-allied activists and federal judges,” he added.
At his confirmation hearing, Sessions expressed skepticism about DOJ investigations of police forces. Those investigations have increased significantly under the Obama administration.
“I think there is concern that good police officers and good departments can be sued by the Department of Justice when you just have individuals within a department that have done wrong,” he told Hawaii Democratic Sen. Mazie Hirono when she asked him about the issue. “These lawsuits undermine the respect for police officers and create an impression that the entire department is not doing their work consistent with fidelity to law and fairness, and we need to be careful before we do that.”
The DOJ’s new report on Chicago makes a pretty thorough case that the city’s police department as a whole—rather than a few bad-apple officers—needs an overhaul.
But Monique Dixon, deputy director of policy and senior counsel for the NAACP Legal Defense Fund, said she doesn’t expect Sessions will look to use federal courts to force change troubled police departments—like Chicago’s—to change.
“It’s our expectation that we will not see the number of investigations and consent decrees that we have seen under the Obama administration, and that’s troubling,” she said.