Mueller Panic Overshadows Jeff Sessions’ Final Attack on Police Oversight, People of Color
Saturday, November 17, 2018
AARON MATE: It’s The Real News. I I’m Aaron Mate.
The recent firing of Attorney General Jeff Sessions has sparked a wave of protest and anxiety over the job safety of Special Counsel Robert Mueller. But there’s comparatively very little outcry over what one of Sessions’ final moves means for the safety of people’s actual lives; especially people of color. In his last day on the job, Sessions quietly issued a memo that would drastically curb the use of consent decrees. These decrees impose federal oversight of police departments accused of abuses and civil rights violations, such as in Baltimore and Ferguson, Missouri. Just weeks before his ouster, Sessions criticized plans for a consent decree in Chicago.
JEFF SESSIONS: Under the agreement, police officers were dramatically restricted in their use of proven, effective Chicago police policies. Chicago police are not the problem. Chicago police are the solution. A consent decree is an extraordinary remedy, and should be considered only with great caution.
AARON MATE: With his last-minute act to curb consent decrees, Jeff Sessions is weakening the police oversight that he decried. And while there is widespread alarm over Sessions’ firing, where is the alarm over Sessions’ very consequential final policy?
Joining me are two guests. Ian MacDougall is an attorney, journalist, senior reporting fellow at Pro Publica; and Billy Murphy is a Baltimore-based attorney and former judge. His clients have included the family of Baltimore’s Freddie Gray, whose killing by police helped lead to a federal consent decree. Welcome to you both.
Mr. Murphy, I’ll start with you. Your response to Sessions’ last-minute move?
BILLY MURPHY: Well, we’d heard a long time ago from his own mouth that he was hostile to the notion of consent decrees. And one of the reasons we wanted to hurry Mayor Pugh was because if we delayed any longer, he would have stopped that decree from being presented to the court, and our mere approval of it would have been unilateral and not enforceable. We got under the wire. He instructed the U.S. Attorney’s Office to oppose it anyway. But the ink was already dry. It was an enforceable agreement because the Justice Department couldn’t un-sign it. They’d already signed it.
Around the country could be a problem for any new consent decrees to be entered because of the hostility that he feels towards black people in general, and that love, the unconditional love that he has for law enforcement officers who in his eyes can do no wrong. And so.
There’s one thing I’d like to add before I yield. Jeff Sessions has been a big problem to the left, to civil rights organizations, to everybody who is in their right mind, because he’s been a racist his entire career. But when he became the pivot point for the Mueller investigation such that we had to be on the side of him not being fired, that muted any criticism that we would have had for his abysmal behavior in this issue and on a host of others since he’s been the attorney general. We were just too scared to give Trump a legitimate ground to get rid of him. So we’ve been quiet about it.
AARON MATE: Ian MacDougall, as someone who’s covered this issue of consent decrees very closely, what do you see as the main consequences of Sessions’ decision?
IAN MACDOUGALL: I think there are really two of them, maybe three. And we’ve talked to folks at the Justice Department and people who’ve worked closely on this issue. These are kind of the ones they’ll lay out. You know, in terms of policing and police reform work, Sessions had essentially already killed any new work that is going to be done. As Mr. Murphy mentioned, he attempted to intercede in the Baltimore consent decree. He managed to stop the contemplated Chicago consent decree, although that was picked up by the state Attorney General. But what this does, in essence, is sort of formalize the status quo, kind of gives a sort of dead hand control over the Civil Rights Division’s police reform work even after he is gone from the department.
The second thing, and this might be the more consequential thing, that folks will say at the Justice Department is that it chills enforcement of existing existing consent decrees. So everyone in the Justice Department, and the Civil Rights Division, anyway, kind of knew- they knew that this was, that Sessions and many of his deputies opposed consent decrees, opposed police reform work for a variety of reasons. But it wasn’t necessarily all that widely known. It had been reported, but it was sort of just here and there. Now there’s this formal document that kind of lays out that skepticism about consent decrees, and now, you know, people who’ve worked on consent decrees say every day is a negotiation when you’re trying to implement it. And now the Justice Department has given away or weakened the negotiating position of those attorneys, because they’ll go in and the state or the city will say, to themselves at least, these guys have no leverage. They’re not going to be supported by their superiors. We don’t need to worry about getting pushback if we slow roll things or ignore things altogether.
The example that some folks point to is Ferguson, where if you look at the court records it’s evident, and some advocates filed a letter about this recently, the police department has been quite slow to implement a number of the reforms there. If you look at the Justice Department’s response, it’s pretty tepid. And folks who know a bit about that case say that’s in significant part because they feel like they have no leverage to push back. If they felt like they had more support you would see a more forceful pushback on the timelines, and so on.
So those are the two big ones, the two big impediments to this kind of work that Sessions’ memo leaves behind.
AARON MATE: Right, and let’s talk a bit about some of the restrictions that Sessions has imposed. And one of them is significant to what you just mentioned in terms of a tepid response from the Justice Department, and a slow implementation by local police subject to their oversight of reforms. So now Sessions is saying that any consent decree has to have a sunset period; there has to be a time by which it ends. And he also put decisionmaking in terms of who gets to approve these consent decrees in a number of political appointees versus the way it currently works, right?
IAN MACDOUGALL: That’s right. Well- even before, it generally involved political appointees in the sense that it involved the assistant attorney general for the Civil Rights Division’s Office. But what this does is it requires even higher level approval up to the number two and number three positions; the deputy or associate attorney general. And sort of the further you get up the chain the more likely, I suppose, sort of direct political or policy sort of influence will affect their thinking, or that’s, I suppose, the fear.
AARON MATE: Mr. Murphy, do you think that had Sessions’ memo been the policy back when you helped win a consent decree in Baltimore, oversight of the Baltimore police, do you think that that could have been achieved? And what has been the impact in Baltimore of federal oversight, which resulted in large part from the Freddie Gray case?
BILLY MURPHY: Well, the consent decree. Came directly from the results of an investigation which Sessions would not have- or Sessions, if he did order the investigation, would have whitewashed the Baltimore City Police Department, because he comes in with a bias against the existence of police brutality, the bias against the existence of police corruption. And this was a very corrupt department. And so we have gotten nowhere if Jeff Sessions had been attorney general, and even if we thought we were getting someplace, we would have gotten a whitewash of a report instead of one that revealed all of the problems that fixed in the Baltimore Police Department.
AARON MATE: One of Sessions’ arguments that he made is that these consent decrees are bad for police morale, that they are bad, overally, on the attitude amongst officers of the department, that it makes them feel as if the government doesn’t have confidence in their ability to do their job. What’s your response to that?
BILLY MURPHY: Well, there’s no choice when the government loses confidence in the police to do their job, because the citizens upon which the government has based its legitimacy have lost confidence. That’s the situation in Baltimore. So too bad, so sad.
And Sessons said that these consent decrees were bad because they kept lawful police techniques- they limited lawful police techniques. That’s absolutely a lie. The techniques that the consent decree allows are the ones permitted by the Constitution, and no more. In other words, they outlaw the illegal police tactics, but regulate the lawful police tactics by laying out the roadmap for how police should behave in a variety of situations. Every department needs something like that, whether they are a good department or a bad department, because that’s the road map for constitutionally-based policing. And Jeff Sessions is crazy to get rid of it, but he’s crazy guy, because racism is dumb, and he’s a dumb racist.
AARON MATE: Ian MacDougall, I want to ask you quickly about the other implications beyond policing. You talk about in your latest piece for Pro Publica a bit about the implications that Sessions’ decision has for voting rights and environmental standards, as well.
IAN MACDOUGALL: Yeah, that may be the bigger practical effect, or at least more easily measurable practical effect of that memo. There were certain voting rights cases involving absentee and overseas ballots and and registration processes where the Justice Department was still using consent decrees, even if they really backed away from them entirely in the police context. In addition, the environmental division still use consent decrees for issues surrounding pollution cleanup and other environmental laws. This memo applies to all of those, and so those will now be extraordinarily difficult to get in place. And when the attorneys there, to the extent they manage to get to the point of trying to negotiate one with a city or state, are going to face the same sort of, potentially, intransigence that folks trying to enforce police consent decrees will run into, because the state and city is going to know you’re gonna have a really hard time getting this approved.
And I know in the environmental division in particular, the memo really caught people by surprise. I think in the Civil Rights Division, as Mr. Murphy mentioned, people sort of saw this coming a little bit. But in the environmental division they were quite shocked and surprised, and still I don’t think know quite how this is going to affect their ability to do the part of their work that involves states and city governments.
AARON MATE: Billy Murphy, final question to you. What message do you think police departments across the country will take from Jeff Sessions’ decision, is final decision, here? And what kind of response do you want to see now?
BILLY MURPHY: Well, police departments that are currently badly supervised administratively and are in rough shape are going to get in worse shape, because this emboldens police corruption, police misconduct, police brutality in particular. And couple that with his inclination to keep in place mass incarceration, which he has enthusiastically embraced by asking U.S. attorneys to ask for the maximum sentence for every charge in the indictment, which is stupid beyond words. And you’re going to see a real overkill and a real return to the worst kinds of policing that we’ve seen probably in the past 25, 30 years. That would be a complete travesty. That would be a grave injury to communities of color, to women, to immigrants all over the country. And it will be a wound that would take years to heal because the damage caused by this is so severe.
So I think you’re going to see a return to the dark ages, where we are policed as presumptive criminals rather than as law-abiding citizens.
AARON MATE: We will leave it on that scary note, but certainly we’ll come back to this issue as it unfolds. I’m going to thank my guests Ian MacDougall, attorney, journalist, senior reporting fellow at Pro Publica; and Billy Murphy, Baltimore-based attorney, former judge, who represented the family of Freddie Gray. Thanks to you both.
BILLY MURPHY: Thank you.
IAN MACDOUGALL: Thank you.
AARON MATE: And thank you for joining us on The Real News.