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Tuesday, December 16, 2014

What the Hell is a Consent Decree? Making Sense of What's to Come After the DOJ Report

Posted By on Tue, Dec 16, 2014 at 12:47 PM

click to enlarge dojcrest.jpg
What the hell is a consent decree? 
A consent decree is part of a court settlement — in practical terms, it's a document — in which a person or a company (or, in this case, the City of Cleveland) agrees to take specific actions without admitting fault or guilt for the situation that led to the lawsuit. The court maintains jurisdiction over the consent decree to enforce agreed-upon terms.  Full legal definition here.

What's the point? 
Largely, consent decrees and agreements of its ilk are designed so municipalities can avoid "the cost, delay and effect" of protracted litigation. It's just like a settlement in other civil or criminal cases in this regard. 

How long will its terms be enforced?  
U.S. Attorney Steven Dettelbach and his team haven't yet specified, beyond saying that it's much less about duration and more about achieving the agreed-upon goals. He said pointedly in a heated forum with residents Monday night that the consent decree wouldn't be removed if terms hadn't been met, regardless of how long it takes.

That said, time frame is of course one of many items to be negotiated with Mayor Jackson and his staff. And there's precedent. In an agreement after a DOJ investigation into the Seattle Police Department, for example, time frame for the agreement's terms was structured to recognize a period to achieve certain benchmarks, and then a further period of "sustained compliance."  It's not like the moment the Cleveland Division of Police reaches its goals, the consent decree is no longer in effect. Dettelbach and one of his team members said (4+2) was a reasonable time frame in Seattle — four year to achieve a goal, two years of sustained compliance — but that these things are tailored specifically to each city.  

Is there any assurance that the changes will be permanent?
Unfortunately, no. But part of the "sustained compliance" idea is that major changes to the Cleveland Police — consistent disciplinary procedures, for example, or regular community policing — are more thoroughly integrated into the culture.  

Why didn't this happen last time? 
Last time, when the DOJ conducted its first investigation into the CPD's use of force in 2002, Dettelbach said the city entered into a "voluntary agreement" which lasted only one year. "Boxes were checked off," in Dettelbach's characterization, and at the end of the year, the agreement expired. The fact that the changes were then almost immediately ignored (or at the very least, diffidently enforced) by police leadership is why the U.S. Attorney's Office is now so insistent on a consent decree, which will be managed by an independent monitor.   

Who will the monitor be? And who will appoint him or her?
At least in other consent decrees, the monitor is usually a lawyer. Dettelbach said the appointment will be a negotiation point with Mayor Jackson and his staff, but that they will assemble a national pool of candidates. The monitor will work closely with the consent decree, but likely won't relocate to Cleveland, said Mike Tobin, the Attorney's Office's public information officer.  

When will these negotiations between the City of Cleveland and the DOJ begin? 
According to the city, nothing is yet set in stone. Mayor Jackson intends to finish an internal review of the DOJ report before entering into negotiations. That review, which the city now chafes at calling an "investigation" will "determine which areas we agree with, which areas we do not, and which areas of the report we believe do not go far enough," said Assistant Director of Media Relations Daniel Ball. And for the record, said Ball, the city is entirely in support of a consent decree.

Jackson has been characterized (by Scene, certainly) as more or less discounting the exhaustive DOJ report to steadfastly defend Michael McGrath and police leadership. Ball said Jackson has been cooperative and supportive of the DOJ, that he "welcomes their findings."

"His biggest problem," Ball said, "is that he thought it didn't go far enough in terms of arbitration, that it focuses only on the police."

Ball said that the City of Cleveland's internal review, led by Law Director Barbara Langhenry and her staff, is ongoing.   

Who will represent the city in their negotiations with the DOJ to create the consent decree? 
Via Ball, these are legal negotiations, so "Director Langhenry and her chosen staff" will be running point. 


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