There’s a new sheriff in town. But he doesn’t care much about how his deputies behave — as long as what they do is in the name of stopping crime.
Over the past few months, Attorney General Jeff Sessions has made his early mark as the top law enforcement official in America, the head of the US Department of Justice. All this time, he’s been clear about what he’s doing: Just as his boss, President Donald Trump, has called for, he’s moving the country in a direction that’s “tough on crime” — tough meaning that the police are allowed to be more aggressive, frisking the edge of what’s constitutional, with a singular goal of cracking down on crime.
For police officers across the country, this has translated to a Justice Department that is willing to look the other way when there are protests and criticisms against police over excessive use of force and other kinds of misconduct. So whereas the Justice Department under President Barack Obama would launch investigations into police departments and even individual officers after protests over a police shooting, the Justice Department under Trump and Sessions has explicitly said it will not do that — and might even encourage the practices that led to protests in the first place.
Sessions has said this outright. In February, soon after becoming attorney general, he acknowledged that his Justice Department would “pull back” on civil rights lawsuits and investigations against police. And in defending that decision, he’s painted himself as an ally of police officers, who wants cops to be able to do nearly anything to stop crime.
Sessions seems to believe that federal oversight will somehow handcuff the police, rendering them less able to crack down on crime. So he’s decided to pass on federal oversight altogether. That has effectively removed a major watchdog for local police, giving officers far more leeway to be aggressive — even if it’s not constitutional — in their day-to-day work.
A tale of two police shootings
We’ve known this shift in the Justice Department was coming for months — ever since Sessions was nominated to the attorney general position in November. But this was really driven home this week in the tale of two police shootings: that of Walter Scott in South Carolina in 2015 and Alton Sterling in Louisiana last year.
In the South Carolina case, the former police officer who shot and killed Scott, Michael Slager, pleaded guilty to federal civil rights charges. This was effectively the work of the Obama Justice Department. Federal prosecutors under Obama got the indictment of Slager last year, lining up the case before it was in any way clear that Trump would become the next president. It wasn’t really something Sessions could stop at this point.
In the Louisiana case, meanwhile, the Justice Department announced this week that it would not pursue federal civil rights charges against the officer who shot Sterling, concluding that there wasn’t enough evidence — which tends to be particularly tricky in these cases, since the bar for legally proving an officer knowingly violated someone’s civil rights is fairly high. Still, this was the first high-profile police case that Sessions was in charge for — and it’s not exactly surprising that under him, charges weren’t filed.
Now, the shootings were different. Scott was unarmed and shot in the back. Sterling had a gun in his pocket, although he was pinned down on the ground and, based on video, couldn’t move when police shot him at point-blank range. So maybe not much would have changed if Obama was still in office or if Hillary Clinton had won instead of Trump.
But Americans should expect this contrast between what the Obama administration did on police cases and what the Trump administration will do to continue.
Sessions wants to unleash the police
Sessions had explicitly told us that he would pull back investigations into the police shortly after taking his new office. He admitted that he hadn’t even read the reports from previous federal investigations into police in Chicago and Ferguson, Missouri. And there’s a long history to his approach: In 2015, for example, he criticized police reforms led by the Obama administration during a Senate hearing called “The War on Police.”
But by pulling back from investigations of police, Sessions will effectively rob people of a major source of information about law enforcement abuses across the country.
Consider what the Justice Department uncovered in just three cities: In Ferguson, it found police were encouraged to crack down on petty offenses to raise as much revenue from fines and court fees as possible — often in a way that targeted black residents. In Baltimore, it found a police department that regularly violated residents’ constitutional rights throughout virtually every aspect of policing, at times pursued racist practices, and frequently did nothing when it uncovered wrongdoing within its ranks. And in Chicago, it found police often used excessive force and treated black residents “as animals or subhuman.”
These were basic violations of citizens’ constitutional rights by the police, typically finding enough for a court-enforced consent decree through which the federal and local governments would work together to implement reforms. (These, however, have a mixed record due to financial restraints.)
But Sessions doesn’t want to even look into whether other police departments are similarly troubled, much less agree to consent decrees.
To Sessions, the primary worry isn’t whether police are breaking the law; it’s whether police are doing everything in their power to stop lawbreaking from others. His concern is that if the federal government gets too involved in local and state police practices, it creates a chilling effect on police — leading officers to reconsider “tough on crime” strategies that Sessions believes reduce crime.
In a speech given on the 99th day of the Trump administration, Sessions said as much: “I have directed our department to develop strategies to support the thousands of law enforcement agencies across the country that seek to prevent crime and protect the public. And I have made clear that this Department of Justice will not sign consent decrees that will cost more lives by handcuffing the police instead of criminals and stopping lawful police procedures that have been proven to reduce crime.”
Indeed, that’s why after the Justice Department found out that the Baltimore Police Department was practically broken in every way and local officials pushed for federal help to reform the troubled agency, federal prosecutors under Sessions actually called for a pause on any consent decree. The court had none of it, moving forward with the consent decree anyway.
In this case, it didn’t matter to Sessions and his staff that they had clear evidence of abuses at the Baltimore Police Department. The primary goal — above all else — was to prevent a chilling effect on the police.
Baltimore isn’t an outlier. Last month, Sessions’s Justice Department argued that “New York City continues to see gang murder after gang murder, the predictable consequence of the city's ‘soft on crime’ stance.” This has been a common criticism among the right after a court ended the unconstitutional implementation of stop and frisk, which the court found illegally targeted minority residents.
Never mind that after the end of stop and frisk, crime is actually at historic lows in the city. To Sessions, any sign that the New York Police Department is being pulled back from the “tough on crime” tactics of old is abhorrent; it doesn’t even matter what the actual statistics say — surely, it must have led to more crime.
Sessions wants to make sure this vision is that of the federal government. That’s why, in March, he launched a review of basically all policies at the Justice Department, including consent decrees, in part to “help promote officer safety, officer morale, and public respect for their work.”
This was all predictable under Trump and Sessions. But it’s still worth emphasizing the signal that police are now getting from this administration: It’s okay to continue what you’re doing to fight crime, even if past administrations or courts may have found that it was unfair, racist, or unconstitutional. You are unleashed.
It’s not just police, either. The Trump administration in general has moved toward a “tough on crime” strategy ripped from the 1980s and ’90s. As University of Chicago criminal justice expert John Roman told me, “There’s a lot of interest of returning to the policies of the ’90s. So three-strikes [laws], mandatory minimums, stop and frisk, [and] more of a National Guard and federal law enforcement presence.”
Whether this sticks mostly comes down to local and state officials
If there’s a glimmer of hope for police reformers, it’s that the federal government typically has very little say over criminal justice issues.
In the US, there are about 18,000 law enforcement agencies spread across cities, counties, other municipalities, and states. Only a dozen or so are federal agencies. The great majority are state and local agencies that work almost entirely under the guide of state and local law.
“It’s very hard for the federal government to do much of anything” on criminal justice, Roman said. “Policing is, of course, a state and local matter, as are corrections policies.”
While the federal government can incentivize states to adopt specific criminal justice policies, studies show that previous efforts — such as the 1994 federal crime law — had little to no impact. By and large, it seems states will only embrace federal incentives on criminal justice issues if they actually want to adopt the policies being encouraged.
So whether any of what Sessions is doing actually sticks depends largely on how local and state officials react — barring any direct federal law enforcement involvement in some cases.
As it stands, there are signs that at least a few places aren’t buying what Sessions is selling. After he launched his review of Justice Department policies and consent decrees in March, officials in cities that were investigated by the Obama administration — including Baltimore and Chicago — insisted that they want to move forward with police reforms anyway.
That’s the chance that police reform has right now. A Trump administration may fail to investigate abusive police departments. But after years of Black Lives Matter protests and calls for criminal justice reform, maybe some local and state policymakers will move forward with reform anyway.
Or maybe Sessions’s advocacy for aggressive police policies will be enough for local and state officials to also pull back from reform. It remains to be seen.