This fall, a federal judge in Manhattan will consider whether to turn over control of Rikers Island from the city government to a court-appointed receiver who would be responsible for improving jail conditions. The decision comes amid continuing civil rights violations and systemic dysfunction. Since 2015, Rikers has been operating under a “consent decree,” which empowers the judge to enforce a negotiated plan to improve conditions inside the jail complex. Twenty-seven people have died in city jails under the current mayoral administration—eight this year alone.
Rikers is far from the only part of the criminal legal system under federal scrutiny. At any given time, some of the largest police departments and jail systems in the United States are operating under consent decrees. Jurisdictions under these agreements are required to change their unlawful practices, which in some cases have led to discrimination or death, with progress enforced by a federal court and often tracked by a court-appointed monitor. If a jurisdiction repeatedly fails to comply with the requirements of the agreement, it can be held in contempt of court and, in extreme cases of noncompliance, the court could even decide to turn over control of the department to another party.
There are nearly 30 active consent decrees involving law enforcement and jail systems. Cities like Chicago, New Orleans, Seattle, and Los Angeles have all had jail systems or police departments operating under this kind of federal oversight due to investigations into unlawful patterns. But what does that mean in practice? Here’s how consent decrees work, and how they impact the criminal legal system.
What does a consent decree do?
A consent decree can be thought of as a legally binding performance improvement plan. It is a court-enforced settlement, agreed to by all parties and approved by a court.
Consent decrees are legal tools used in everything from antitrust cases to environmental regulation. When one is used to compel a jurisdiction to reform its jail system or police department, it typically arises from a Department of Justice (DOJ) investigation into a pattern of misconduct. The consent decree, issued by a court, follows a DOJ lawsuit against the jurisdiction that operates the department in question and compels the jurisdiction to comply with the agreed-upon terms.
How does a department come under a consent decree?
Consent decrees can follow many paths. According to people who have worked extensively with them who spoke with Vera, the path of a typical federal consent decree involving a jail system or police department is:
The community impacted by a department’s practices calls for an investigation.
The DOJ opens an investigation into an unjust practice or pattern. (Other agencies or non-governmental entities can also enter consent decree judgements with cities, but consent decrees with federal oversight often have roots in DOJ investigations.)
Once the investigation is complete, the parties involved can negotiate a settlement—sometimes before a lawsuit is filed, and sometimes after. Either way, a lawsuit must be filed to bring the issue before the court, which ultimately issues the consent decree based on this settlement.
The court approves the agreement and typically appoints a federal monitor—a single person—to track progress on the plan and provide regular reports on the department’s performance against the agreed-upon metrics. The federal monitor employs a team that works with them, many of whom are subject matter experts, and sometimes includes people directly affected by the unlawful practices.
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