Tierney Blog

AGs in CA and IL Seek Police Reform Through Collaboration and Consent Orders

The federal government has largely shifted away from efforts to reform police abuse and misconduct.  That’s not going to change if William Barr is confirmed.  But state AGs in CA and IL, among other states, are carrying on with their own efforts to reform police departments. 

The CA DOJ announced the release of a report on use of force in the Sacramento Police Department.  Find the report here.  The Sacramento Police Department invited the CA DOJ’s involvement after public outcry over the police shooting of an unarmed black man named Stephon Clark last March.  The CA DOJ’s report is not binding on the Police Department. 

A federal judge in Chicago just approved a consent decree mandating reforms for the Chicago Police Department.  Find the decree here.  The consent decree follows from the IL AG’s lawsuit against the City of Chicago.  Read more about the lawsuit here, which itself followed after former US AG Jeff Sessions abandoned efforts at reform in the city.

The initiatives in CA and IL show two different models for police reform.  One involves a voluntary relationship with the AG offering advice and assistance, like the federal government used to offer through its Collaborative Reform Initiative.  The other involves the AG obtaining a court order and judicial oversight, which the federal DOJ used to do following its pattern-or-practice investigations.

Most state AGs, however, do not have explicit statutory authority to obtain consent decrees to curb police misconduct.  There have been calls (here, here and here) for the expansion of AG authority in this area.  We think state legislatures will be seeing proposals soon, if they haven’t already. 

State AGs Carry Responsibility for Police Department Reform

Although the US DOJ continues to abandon efforts to reform local police departments, state AGs remain active in this area.

One tool available to state AGs is the consent decree. Just last week, in a last-minute act, now Former AG Sessions signed a memo making it more difficult (some would say nearly impossible) for the federal DOJ to use consent decrees to curb civil rights violations by local police departments. But state AGs can still turn to federal courts to create oversight by the federal judiciary using consent decrees.

Chicago provides an example. When the Sessions DOJ walked away from an agreement in principle to reform Chicago’s police department, the Illinois AG stepped in to get a consent decree. You can read more about this in our earlier post about the Illinois AG’s lawsuit. The proposed consent decree, submitted by the Illinois AG and the City of Chicago, is still pending in federal court. Other AGs will be monitoring the Chicago matter with interest in following General Madigan’s lead.

State AGs have broad authority, and AGs throughout the country have been using their authority to reform police practices. They’ve taken over investigations into police shootings, taken on direct review of police department reforms, and acted to increase transparency on police use of force. 

The State AG Project at ACS will continue to compile a list of efforts by state AGs to reform police departments and the criminal justice system. With the federal government creating a leadership vacuum, we’re likely to see more action by state AGs in this area.

Delaware Attorney General Matt Denn on Criminal Justice Reform

One of the most important developments in the fight for criminal justice reform has been the rise of prosecutors who are willing to grasp the larger issues that lie in their law enforcement capacity. Delaware AG Matt Denn is wrapping up his term in office with this reflection on his solid reform accomplishments even as he calls upon his state's leaders to continue to push for more reform and progress.

Illinois Attorney General Lisa Madigan Takes Action to Compel Reform in the Chicago Police Department

On Tuesday, the citizens of Chicago woke up to discover that their own Attorney General, Lisa Madigan, had sued the City of Chicago and its Police Department and is now asking a federal judge to force the City and other stakeholders to negotiate a consent agreement that would bring about long overdue police reform. Chicago Mayor Rahm Emanuel supports the lawsuit and stood with the Attorney General at her press conference. This odd coupling is the result of U.S. Attorney General Jeff Sessions backing away from an agreement in principle that followed a scathing U.S. DOJ report in January 2017 detailing civil rights violations by the Chicago police. Indeed, the U.S. DOJ initiated its pattern and practice investigation and issued its findings at the urging of General Madigan.

Regarding Tuesday’s lawsuit, General Madigan said, “[a]s the state attorney general, we are essentially stepping into the shoes of the U.S. Department of Justice – shoes that the DOJ has abandoned....”

Without weighing in on the specifics of Chicago police reform, I want to note the importance of Madigan's decision. The Illinois Attorney General is showing that, in the face of actions taken by an administration rolling back reforms initiated by the previous administration, state officials can turn to federal courts to create federal oversight, compel reform and ultimately bring about justice.

The importance of Madigan's decision is therefore not limited to police reform. As has been well chronicled, the Trump administration has walked away from numerous initiatives in criminal justice, environment, labor and, of course, civil rights.

As Madigan's suit makes clear, this administration’s politically motivated actions do not change the facts, nor do they change our federal and state laws and constitutions. State attorneys general have broad jurisdiction in all of these areas, and many are guided by a sense of justice that will not allow facts and injustices brought to light by the Obama administration to simply be ignored.

Most initiatives brought by Democratic attorneys general have been aimed at stopping federal retrenchment. But in the months ahead, many more state attorneys general are likely to follow Madigan's leadership and take their own actions in both state and federal courts. We should all be proud, and somewhat relieved, that our constitutionally guaranteed system of federalism has ensured that the flawed actions of one president and his attorney general cannot stop our state attorneys general in their pursuit of justice.

Maryland Attorney General Issues Report on Rape Kits

One of the great scandals of our criminal justice system is the failure of police departments and prosecutors to expeditiously and appropriately process rape kits. State attorneys general are moving into this void using a variety of techniques including dedicating settlement funds to the processing.  In Maryland, Attorney General Brian Frosh has essentially issued a stinging report telling his legislature and Governor to get their acts together.  Let's hope that they do.

Well-Trained Police Working with Prosecutors Safeguard Against Hate Crimes

Hate crimes are increasing and law enforcement is responding as described in my hometown newspaper where well-trained local police got the facts, communicated them to a skilled District Attorney who in turn sent the file to the Attorney General for a final decision.

The message was therefore immediately sent to this Muslim community, and the entire state, that hate violence will not be tolerated. Treating hate as a serious crime results in the deterrence that produces public safety, which is the goal of law enforcement.

Too many well-meaning philanthropists and academics miss the vital role that well-trained police and prosecutors play in keeping us all safe, and that is a shame.

  • AG to investigate Burger King assault as possible hate crime, Sun Journal (Nov. 25, 2016).

Ohio AG Curtails High Speed Police Chases

Ohio Attorney General Mike DeWine continues to impress with his steady, day-by-day efforts to improve policing in his state. This week he received a report from a Task Force he appointed to analyze, curtail and develop police policies on high speed chases. This is exactly the kind of leadership that saves lives, and it should not go unnoticed nationally. Other attorneys general should follow AG DeWine's lead.

  • Tim Rudell, Ohio's Attorney General Announces Guidelines for Police Chases, WOSU Radio (Nov. 3, 2016).

Delaware AG Establishes "Actual Innocence Project"

Since 1992, "The Innocence Project" has pursued litigation and public policy initiatives dedicated to the exoneration of wrongfully incarcerated individuals through the use of DNA testing. In almost all of these cases, the Innocence Project has gone head-to-head with the prosecutors who carried out the initial prosecution.    

It is therefore noteworthy that in Delaware, where the Attorney General is the exclusive prosecutor, AG Matt Denn has announced the formation of a Delaware specific "Actual Innocence Project" that will operate to provide review opportunities for those who believe they were wrongfully convicted of a crime. This is another example of Denn's national leadership in criminal justice reform.

See: Delaware DOJ creates The Actual Innocence Project

Maryland Attorney General Frosh Concludes Excessive Cash Bail Potentially Unconstitutional

Writing that "you can't imprison someone for poverty," Maryland Attorney General Brian Frosh opined that failure to be able to pay cash bail may well be unconstitutional under the 8th Amendment to the U.S. Constitution. While not legally binding, Frosh's Opinion has provided ammunition for those legislators seeking to reform the Maryland criminal justice system. Frosh's Opinion stated that a Judge or Commissioner "may not impose a financial condition set solely to detain the defendant," and some Maryland legal observers are calling Frosh's letter "revolutionary," in that it has shifted the debate on this important issue.

See: Maryland Attorney General Brian Frosh questions legality of bail defendants can't afford


Police Shootings

A string of high publicity shootings by police officers has led to a nationwide soul-searching reexamination as to how these cases are investigated and prosecuted. The concern that local prosecutors are "too close" to these emotional cases has led an increasing number of states to consider having the state attorney general handle these matters. Long the way it has been done in many states (Maine, New Hampshire, Louisiana, Wisconsin), others are following suit (New York) or considering doing so as evidenced by a recent Report from the Ohio Supreme Court.

See: The Columbus Dispatch, Task force: Attorney general should handle fatal police use of force cases 

NY Times Editorial Discovers the Obvious

There are days when the New York Times just infuriates this Maine voter. Today's editorial writers have read and written with approval about an excellent report from the Vera Institute on state criminal justice reform, and noted, "Gee!  Look what state governments are doing on criminal justice!  Who knew?" Just back myself from Indianapolis where I keynoted a gathering of state leaders convened by the In. AG at a law school deeply committed to on the ground justice, and having noted last week the statements of the ND AG, perhaps a little less myopia and a little more getting out of New York City by the grey lady is in order.

ND AG Outlines Thoughtful Response to Prison Overcrowding

The well respected AG of North Dakota - Wayne Stenehjem - outlined a multi-pronged initiative to both relieve his prison overcrowding and accomplish the real "roll up your sleeves" way to accomplish criminal justice reform. The AG calls on his legislature to increase access to behavioral health treatment services in a vaiety of ways, including creating more addiction counselors. "I also know that a lot of these people ... could, if they got good, available, affordable, often long-term treatment, become contributing members of society," he stated.  For this and other criminal justice reforms being carried out by attorneys general, go to this site.

AG's Lead on Criminal Justice Reform

AG's around the country are leading their Governors and Legislatures through the myriad of issues inherent in the criminal justice reforms that are occuring in many states. Working closely with prosecutors, state correction officials and advocacy groups, AG's such as Sam Olens in Georgia and Tom Miller in Iowa are shepherding reforms and emerging as national leaders far from the glare of the national spotlight.  We at the National State Attorney General Program are continually monitoring these historic efforts and will continue to do so on this page and in my blog.