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Biden’s plan for “strengthening America’s commitment to justice†reads like a Black Lives Matter wish list; there is no reason to think that a Biden–Harris Justice Department will not implement it. Among its most consequential proposals, it calls for a return to the practice of imposing weakly-justified consent decrees on police departments. During the Obama years, career attorneys in the Justice Department regularly opened civil rights investigations into police departments (called “pattern or practice†investigations) without credible evidence that an agency was systematically violating citizens’ constitutional rights. Those investigations almost invariably resulted in settlements (called consent decrees) that placed police departments under the control of a nonelected federal monitor and a federal judge; monitors collected millions of dollars in taxpayer-funded fees while they held police departments to draconian deadlines and mindless paper-pushing mandates for years on end.President Trump’s first attorney general, Jeff Sessions, reformed that practice. On the very day that Trump vindictively fired Sessions in November 2018, Sessions had signed a directive requiring that a high-level DOJ official approve each consent decree, that those decrees have a sunset date—usually no longer than three years—and that they specify what a department must do to terminate the decree. The directive stipulated that police agency’s alleged constitutional violations must be truly systematic and unlikely to be corrected absent a de facto federal takeover of the department. Justice Department attorneys must balance any expected benefits from the consent decree against its costs. High-paid monitors should be a last resort; Justice Department attorneys should ordinarily oversee the measures that they have imposed.This sensible set of guidelines will now be torn up, if Biden’s narrow victory holds. Biden’s criminal-justice plan promises to “reverse†the Trump “limitations†and to “prioritize†the use of consent decrees. Police departments are now on notice: they may expect a knock on the door at any time from a Washington attorney, demanding truckloads of documents as the prelude to years of federal interference and budget-busting compliance rules and fees. Strikingly, the justice blueprint goes further than even Obama-era policy by calling for pattern-or-practice investigations of prosecutors’ offices, on the ground that they, too, engage in “systemic misconduct.â€
