Last week, U.S. Sen. Bernie Moreno suggested to newly confirmed U.S. Attorney General Pam Bondi that she could use a legal maneuver to end a 10-year-old agreement between the U.S. Department of Justice (DOJ) and the City of Cleveland. The agreement, called a consent decree, requires the city to reform policing.
Two weeks earlier, the then-acting attorney general, appointed by President Donald Trump, sent memos to DOJ staff ordering them to freeze work on consent decrees and similar agreements that were approved in the final months of President Joe Biden’s term.
According to the memo, “The new administration may wish to reconsider settlements and consent decrees negotiated and approved during the prior administration.”
During Trump’s first term, the Department of Justice restricted the use of consent decrees, and he spoke out against them in the recent campaign. It’s not clear whether his new administration might eventually re-evaluate consent decrees as old as Cleveland’s, and, if so, whether it could impede or halt them.
But history provides some guide for the factors that will be at play if it comes to that.
What is a consent decree?
If the Department of Justice finds that a state or local government is violating people’s rights, it tries to negotiate an agreement to fix that problem rather than file a lawsuit, according to the DOJ web site.
One option to avoid a lawsuit is a consent decree, a type of settlement between the DOJ and the other governmental entity (typically a police department). But unlike most settlements, a consent decree is not the end of a process, it’s the beginning of one that may or may not have a fixed end date.
The Cleveland consent decree, a 105-page document filed in federal court in May 2015, lays out the expected reforms — for example, reigning in officers’ use of force. It also empowers the Cleveland Police Monitoring Team to evaluate progress. U.S. District Court Judge Solomon Oliver Jr. oversees the entire process, holding hearings, setting deadlines and mediating disputes between the parties.
The consent decree is considered completed when the city has shown “sustained and continuing improvement” for two years.
If the city disagrees with the monitoring team’s assessment of its progress, it can file a motion with the court asking to terminate the consent decree. That has never happened in the almost 10 years that it’s been in effect (though Cleveland Cleveland Mayor Justin Bibb has at times suggested it should end, citing the costs).
The Bibb administration learned of Senator Moreno’s letter to Attorney General Bondi through press reports, according to a spokesperson, who declined to comment further: “We will have more to say if and when a decision is made since it appears these are just conversations at this point.”
Can the Department of Justice end the Cleveland consent decree?
Moreno wrote that it’s his “understanding” that when Barack Obama was president, the DOJ failed to file an important document with the federal court that oversees the consent decree. He then suggested that because of that supposed oversight, the consent decree can be “dismissed.”
“I read the Bernie Moreno letter,” said Subodh Chandra, a civil rights attorney, former assistant U.S. attorney and former Cleveland law director. “It makes no sense.”
“The consent decree is a court order,” Chandra told Signal Cleveland. “It’s not just some settlement agreement, and there is no case to be dismissed because [the issue] was resolved by the court order. … The monitor reports to Judge Oliver. The monitor doesn’t report to Pam Bondi or Bernie Moreno. So it would be nice if U.S. senators stay in their lane and not try to politicize either the Department of Justice or the federal courts.”
Moreno’s office did not respond to Signal Cleveland’s request to explain the basis for his suggested method for dismissal.
The consent decree does not describe a scenario in which the DOJ can terminate or withdraw from the agreement. But could it do so anyway?
“At least in principle, nobody could just walk away,” said Jonathan Entin, professor of law and political science at Case Western Reserve University. “They would have to go ask the judge to release them.
“Now, that’s sort of the lawyer answer. But if you look at what’s been going on in Washington, as a practical matter, could the Justice Department walk away? Yeah, probably.”
He cited Trump’s unprecedented firing of Democratic members of the Equal Employment Opportunity Commission and the National Labor Relations Board, leaving them with too few members to legally function.
If the Justice Department walked away, what happened next would be up to Judge Oliver, he said.
What next?
“The law is clear: Judge Solomon Oliver Jr. will retain jurisdiction over this case until the consent decree has been substantially complied with,” said Karl Racine, leader of the Cleveland Police Monitoring Team, on Friday.
Racine said that his team is working with “a sense of urgency” and “trying to get this work done without delay,” but he did not explicitly tie that to Moreno’s letter or Trump’s opposition to consent decrees.
At a City Club forum on Friday, Cleveland Division of Police Chief Dorothy Todd and Leigh Anderson, executive director of the mayor’s Police Accountability Team, talked about the progress the city has made in 10 years.
“We’re a completely different Division of Police” from when she joined in 2000, said Todd, who has been chief for one year. She said the division is committed to constitutional policing, a term for law enforcement strategies based on respect for people’s rights.
Todd said the reforms implemented thus far are “very durable,” and will continue regardless of decisions made in Washington, D.C.
Anderson agreed, saying that Cleveland has more civilian oversight of policing than any city in the country. She also relayed a story from speaking to a police academy class and asking how the soon-to-be officers felt about being scrutinized.
“This is all we know,” a cadet responded. “Constitutional policing is what we execute.”
Signal Cleveland’s government reporter Nick Castele contributed to this story.
