Now that Ferguson police chief Tom Jackson has resigned, is the federal government going to get off the city's case?
Not hardly. Jackson's resignation — just like the resignation of the city's municipal judge, and of three city employees who were caught sending racist emails — might be necessary moves for the city to make. But the Department of Justice spent months investigating deep, systemic problems with the criminal justice system in Ferguson, and it's not going to walk away just because a few individuals resigned.
The Department of Justice has gone through this sort of thing before: after investigating a local police department, they enter an agreement with the department that requires reforms and federal oversight until the problems are fixed. But that process takes years, a lot of money, and, often, a lot of resources to do paperwork. It's placed a burden even on large police departments like the Los Angeles Police Department — and could easily be more than Ferguson can handle. There are alternatives to working with the DOJ to make reforms, but they don't look good for the city, either.
None of the potential plans of action will be painless for the city. But at this point, fixing the relationship between police and residents in Ferguson, and rebuilding trust in the criminal-justice system, depends on the city making the reforms the DOJ suggests. Without cooperation, if not enthusiasm, from local government and police, reform can't happen. And refusing to get on board with reform isn't necessarily going to cost Ferguson any less money or time. So the question is what the city of Ferguson can do to make itself acceptable to its citizens again.
Plan A: a consent decree that forces federal oversight of the department for several years
Most of the time, after investigations like this, the federal government and the local police force enter into an agreement called a consent decree, which is enforced by a federal judge. The consent decree says that the department is going to be monitored by the federal government for a while, and lays out reforms the department needs to make before it can be trusted to look after itself again.
In the case of Ferguson, since the DOJ also found constitutional violations in the city's municipal court system, the consent decree is likely to include it, as well. The section of the DOJ's Ferguson report that lists recommendations for reforming the police and courts is likely a good guess of what the feds would require of the city.
The consent decree is usually the result of negotiations between the local police force and the DOJ, but make no mistake: the federal government has the upper hand in setting consent decrees down, because it can hold the threat of a lawsuit over the local government's head.
The legal structure's been in place since the mid-1990s, when Congress passed a law in the wake of the Rodney King riots giving the DOJ the ability to keep an eye on misbehaving local police departments. As of fall 2014, the DOJ was involved in consent decrees with about 20 agencies — including other departments that have gotten national attention for use-of-force problems, like Albuquerque and Cleveland.
The Los Angeles Police Department is held up as an example of how a consent decree can provide the impetus a department needs to remake itself in a better image. Over eight years (plus four more in a transitional agreement), the LAPD worked under a consent decree that required much more careful record-keeping and oversight, and ended up inspiring a shake-up among department leadership. By most accounts, it worked: use-of-force incidents went down, and crime did, too.
Many of the police chiefs who've gone through the process also have good things to say about it. The Police Executive Research Forum, a policing think tank, held a 2013 summit on consent decrees; many of the chiefs who attended said that going through federal monitoring had made their departments better and were worth the cost. The former chief of police for Cincinnati, which went under a consent decree in 2001, put it bluntly: "Prior to the consent decree in Cincinnati, we paid out $10 to $11 million to settle a number of lawsuits. But since the consent decree, the ACLU has not sued the Police Department. That is a tremendous savings."
While police chiefs may appreciate consent decrees after the fact, they don't always like them at the time. Even in LA, as the New Orleans Times-Picayune reported in 2011, the consent decree wasn't exactly beloved in the department:
Still, when asked about the consent decree, most people in the department will roll their eyes. Beat cops call it a "pain in the ass." Police leaders prefer to call it "arduous" or "onerous."
If police officers are so frustrated with what the federal government expects them to do that they feel they can't do their jobs, they may deliberately start doing the bare minimum — like what happened in New York earlier this year during the NYPD "slowdown."
"When I was in Cincinnati, they had a huge uptick in crime after the DOJ announced their investigation, because — basically — the police department shut down and they stopped working," Tim Fitch, a former St. Louis County police chief who assessed Cincinnati and other departments that were under consent decrees, told USA Today. "They stopped doing proactive things. They had to say to themselves, 'Do I really need to pull over this car, and then take the chance that I'm going to get tagged with some sort of discriminatory practice that the DOJ will not like?'"
In Seattle in 2014, a group of police officers filed a lawsuit against the Department of Justice over the consent decree, saying it had caused "hesitation and paralysis" among police. And in Oakland, resistant officers responded by simply refusing to comply for nine years; as a result, the department lost its independence entirely and was placed under federal "receivership."
In addition to possible issues with police cooperation, a consent agreement with the federal government is expensive. First, it requires the city to pay for a monitor, which, according to the Police Executive Research Forum, typically costs about $1 million per year. That's no small sum for Ferguson: the police department's entire annual budget in 2014 was $5.2 million. And under an agreement with the DOJ, the city will likely pull in even less money due to what will surely be a severe crackdown on its use of municipal fines and court fees as revenue.
And it's not just the monitor that's costly. Based on the DOJ's report, a consent decree would likely require police to get a lot more training, in areas such as use of force and implicit bias. And it will almost certainly require the police and courts to take much more careful records, so that they can evaluate officers' performance and make sure cases are being treated equally; that added layer of "checks and balances" was enough to put a strain on the resources of the much larger LAPD.
As former St. Louis County police chief Fitch told the Huffington Post: "My guess is it's going to be so expensive to the city of Ferguson, they're going to have to make a survival decision...to implement all of the changes that DOJ is going to require is going to be so expensive, they're not going to be able to do it."
Plan B: dissolve the Ferguson Police Department
So bringing the Ferguson police into compliance with the Constitution could cost more than the city can afford. And given the abuses outlined in the DOJ report, it might be even more impossible for the city to repair police-community relations. Fulfilling the demands of the federal government doesn't automatically restore residents' faith in police after decades of distrust; in Fayetteville, North Carolina, trust in police was so low that even a letter sent by the Department of Justice affirming that Fayetteville was doing the right thing was interpreted by the community to mean the police were still acting unconstitutionally.
Can Ferguson just cut its losses, by simply dissolving the department and bringing in another jurisdiction to replace it — either temporarily, while a new police force is rehired, or permanently?
It might seem like an appealing option, when faced with the impossibly expensive alternative. Local officials in Ferguson haven't given any indication that they're considering disbanding the police department — but they also haven't given any indication about what they are doing in response to the DOJ report.
In the St. Louis area, there's precedent for dissolving troubled departments. The Jennings, Missouri, police department was disbanded by the local government in 2011, and all officers were fired. (Many reapplied to get their jobs back, but officer Darren Wilson, who would later kill Michael Brown, went to Ferguson instead.) The Jennings police department wasn't under threat of a lawsuit by federal authorities, but there were still serious tensions between the city's largely white police force and its black community — which was a big part of the reason the force was disbanded.
Former St. Louis County chief Fitch presented dissolving the police department to the Huffington Post as the least expensive of the three likely options facing the city of Ferguson right now. It wouldn't cost as much as complying with a consent decree, and it wouldn't cost as much as fighting a lawsuit.
But the issues identified in the DOJ's report don't stop with the Ferguson Police Department. Much of it focuses on the city's municipal court system, and it's certain that the city will have to make reforms to that, as well. Disbanding the police department might allow the city to focus on reforming the courts, but it won't be enough on its own.
It's also not clear that other jurisdictions in the area are that much better than Ferguson is. After all, residents had plenty of experience with the St. Louis County police last summer during the protests after Michael Brown's death — and they didn't treat protesters any better than Ferguson police did.
The DOJ report calls out several things that police and courts around the St. Louis area do that are unconstitutional or unfair, like immediately arresting people who show up to court but are unable to pay their fines. And the report suggests that black residents in the area are being mistreated by law enforcement more broadly, rather than in any one jurisdiction: "Individuals’ experiences with other law enforcement agencies in St. Louis County, including with the police departments in surrounding municipalities and the County Police, in many instances have contributed to a general distrust of law enforcement that impacts interactions with the Ferguson police and municipal court."
Plan C: do nothing and risk a lawsuit
Technically, the city of Ferguson doesn't have to do anything right now. It can just wait it out and hope the Department of Justice decides that it's not worth it to force the city to reform itself.
But it's extremely unlikely the DOJ is just going to let this issue fade away. So if the city of Ferguson doesn't take action, it's widely expected that the DOJ would file a civil-rights suit against the police department and courts.
This is something the DOJ isn't afraid to do. Right now, it's suing Sheriff Joe Arpaio in Maricopa County over discrimination against immigrants and Latinos, as well as the sheriff's department in Alamance County, North Carolina, also for discriminating against Latinos.
There isn't a whole lot of upside to this option for Ferguson. Lawsuits cost a lot of money, and the Department of Justice has a lot more money to spend on this than the city of Ferguson. It's not at all clear that the city could win — or even wear down the federal government enough that the DOJ might offer a less-onerous consent agreement. (The best hope for the city might be that they could wait out the first couple of years of a lawsuit, and hope that whoever is elected president in 2016 puts such a low priority on civil-rights investigations of police that his or her Department of Justice drops the suit in 2017.)
However, compliance with the DOJ might not even be entirely up to the city. In Portland in 2012, the city government accepted the DOJ's report on excessive force among police, and promised to implement recommended reforms. But the police union intervened in the agreement, because the union said it violated collective-bargaining rights. For several months, it looked like the police union's intervention was going to cause the federal suit to go to trial. An agreement between the federal government, the city, and the police union was reached in late 2013.
The city of Ferguson doesn't appear to be as enthusiastic about working with the federal government as the city of Portland was. So far, Mayor Knowles has announced that one city official who sent racist emails has been fired and two more are being investigated; he also said that the department has undergone "diversity training" as evidence that reforms are already being made. But that barely scratches the surface of the problems identified in the DOJ report, or the recommendations the DOJ made to fix them. The city of Ferguson might like to move on, but it doesn't look like that's going to happen without a great deal of growing pains.