Commentary | Why routine federal oversight of local police should be curtailed

Commentary | Why routine federal oversight of local police should be curtailed
GAIL HERIOT
Adding extra layers of bureaucracy to a government agency rarely improves its performance. Yet that was the approach most often taken by the Obama administration in dealing with local police. When police departments were accused — fairly or unfairly — of misconduct, the Department of Justice quickly geared up to intervene and assert control. An accusation that was racial in nature — even if it involved only one police officer and even if it could be disproven — was especially likely to trigger a federal response.   
DOJ investigations would ordinarily result in a lawsuit. But the court would never be called upon to decide definitively whether misconduct had in fact occurred. Instead, DOJ would attempt to foist a “consent decree” on the police department. The court would be called upon simply to rubber-stamp it. Once approved, an agreement would be difficult to rescind or modify.

Consider, for example, the 110-page Cleveland Police Department consent decree. It imposes extensive paperwork and training duties throughout the system. Under it, the department is also required to create and maintain a Force Investigation Team, a Mental Health Response Advisory Committee, a Force Review Board, and a Consent Decree Implementation Unit. It is further required to have a DOJ-approved independent monitor to enforce the decree as well as a 13-member community police commission. Commission members are selected by a specially-constituted selection panel and work with the already-existing Community Relations Board and the District Community Relations Committees (renamed the District Policing Committees).
If you are wondering if all this can get expensive, the answer is yes. In 2012, then-Mayor Mike McGinn told KUOW Radio that the DOJ’s Seattle consent decree could cost that city as much as $41 million per year. According to McGinn, the independent monitor required under the plan would function as a “shadow mayor,” who could interfere with the city’s ability to respond quickly to events. That monitor, not elected officials answerable to the voters, would be calling many of the shots. He or she becomes the superintendent of law enforcement.

Might such an intervention be nonetheless justified? Yes, of course. But it should take a very serious case for the federal government to assert such extensive control over a local government. It should take a case in which the roots of the problem run deep, not one involving misconduct by only a few police officers.
The problem was that the Obama administration’s interventions had become routine. That is why now-former Attorney General Jeff Sessions, as one of his last acts in office, moved to curtail the routine use of such consent decrees. From now on, senior leadership at DOJ must conclude that the police department has been uncooperative. Sessions should be praised for this. It is very much in keeping with constitutional federalism.
Alas, in a report entitled “Police Use of Force: An Examination of Modern Policing Practices,” the U.S. Commission on Civil Rights, whose membership is dominated by Obama appointees, has instead issued a rebuke. Among other things, that report calls for more federal supervision over local police departments. Two commissioners — Peter Kirsanow and I — dissented from those recommendations. 
The real cost of the suffocating bureaucratization of law enforcement cannot be measured in dollars. Officers who are called upon to justify every move they make will inevitably be more reluctant to act. They may think twice before approaching a suspicious person or making a traffic stop. Why make trouble for oneself?
It is not that police officers will entirely refuse to do their jobs. Few are that unprofessional. But only the naïve would believe that such matters have no affect on officer behavior.
We live in the era of Black Lives Matter and concerns over excessive use of force by police. And these concerns are not insubstantial. Where there is power, there will be abuses of power. That is why citizens must be evervigilant, and law enforcement must be willing to adopt sensible reforms like officer cameras, which catch misconduct while protecting officers who play by the rules.
But spare a thought for the problem that has dogged African-American and low-income communities for more than a century: Because these communities have higher than average crime rates and hence higher victimization rates, they stand to suffer the most when police departments are hamstrung by overbureaucratization and discouraged from taking initiative. To protect those communities, the federalization of law enforcement through extensive and expensive consent decrees should be a last resort, not a first resort.
Heriot, a professor of law at the University of San Diego, is a member of the U.S. Commission on Civil Rights.
https://www.sandiegouniontribune.com/opinion/commentary/sd-utbg-federal-oversight-police-20181219-story.html