Jeff Sessions Lets States Off-Hook for Criminal Justice Issues before Exiting Position
Before he left as Attorney General in November, Jeff Sessions issued a final memo in an attempt to limit federal oversight of police officers accused of abusive and unconstitutional conduct. Specifically, he limited the Department of Justice’s ability to enforce certain patterns of conduct via court-enforced consent decrees when it comes to police departments repeatedly engaged in unconstitutional behavior. In doing so, Sessions took two huge steps back in criminal justice reform; alongside his efforts to increase civil asset of forfeiture, push for longer prison sentences, and eliminate a policy implemented by the previous administration to legalize marijuana without significant interference by federal law enforcement.
The memo goes into great detail about how consent decrees between federal entities such as the Department of Justice and state and local entities can undermine these local and state governments as “sovereigns.” His memo indicates that, before any civil action against a state or local governmental entity is resolved by consent decree via the federal government, the Department of Justice must first provide these entities with an opportunity to respond to any allegations, use special caution before using consent decrees in general to resolve disputes, meet certain guidelines before considering a consent decree in the first place, operate under limited terms if they do pursue consent decrees, and operate under a new process for the approval of these decrees.
Requirements That Are Impossible To Meet?
The notice and approval requirements for consent decrees with state and local government entities are particularly cumbersome and convoluted. Absent a special exception, the state Attorney General must be notified of any decision by a federal entity to initiate negotiations with a state or local government entity for a consent decree that would:
- place any court in a long-term position of monitoring compliance by a state or local governmental entity;
- Create long-term (i.e. likely to take 24 months or longer) structural or programmatic obligations or financial obligations for a state or local governmental entity; or
- otherwise raise novel questions of law or policy that merit review by senior leadership.
The notification must include a description of the alleged violations and an explanation of why a consent decree is absolutely necessary. A separate memo must also be included for federal leadership in order to establish the legal basis which describes how the local entity violated federal law, their anticipated defenses, an explanation of how they were given the opportunity to respond to the allegations, and an evaluation of estimated costs of compliance. Under the memo, a consent decree is only appropriate in the first place if at least one of the following factors is present; i.e. the local entity has:
- An established history of recalcitrance ;
- Unlawfully attempted to obstruct the investigation;
- Engaged in a pattern or practice of deprivations of rights or other violations of federal law (where other remedies have proven ineffective); and/or
- A consent decree is absolutely necessary to secure statutory protection or relief.
If You Have Been Subjected To Police Abuse, Contact Our Criminal Defense Attorneys
If you are being criminally prosecuted as a result of abusive or otherwise illegal police conduct, you need to speak with an experienced criminal defense attorney right away. If you live in New York or New Jersey, contact the office of Phillip J. Murphy today to find out how we can help.