December 2018

By Jim Newton

Cameron McLay knows what it’s like to guide a police department emerging from life under a federal consent decree. He took over the Pittsburgh Police Department in 2014, assuming responsibility for an agency that was the first to be governed by a consent decree – and whose experience in its aftermath had lessons for both advocates and critics of such decrees. The question raised by Pittsburgh’s experience, McLay said recently, was one of “sustainability of impact.”

 In 1996, Pittsburgh was facing complaints of excessive force by its police department. These complaints in the city drew the attention of the US Department of Justice. DOJ had recently gained new power under a 1994 law giving the Justice Department the ability to investigate a “pattern or practice” of police unconstitutional misconduct. DOJ also was granted authority to sue cities or other governments to enjoin unconstitutional policing. Often, cities would settle these lawsuits by negotiating a written agreement with DOJ to institute and maintain widespread police reform.  When countersigned by a federal judge, the agreement became an order of the court known as a consent decree. The federal judge retained jurisdiction to enforce progress until the police department achieved full and effective compliance with the letter and spirit of the consent decree and maintained it for two years.  Pittsburgh’s consent decree was the first in the nation, launching a new era in police reform.

During the period that the decree was in effect, Pittsburgh leapt forward in modernizing its police. Officers received improved training and new technology – prior to the decree, the department lacked even rudimentary computers and was stuck in a 1950s-level of paperwork. Officers welcomed some of those improvements and balked at others, including requirements that they keep track of the race and gender of those who they stopped and cited for traffic and other offenses.

 By the time the decree was lifted in 2002, all sides seemed pleased.

 Twelve years later, McLay arrived in Pittsburgh to find that the progress of the 1990s had largely halted when the decree was lifted. By 2014, Pittsburgh had moved from the lead in police agencies to a far-behind trailer.

 “An awful lot of the systems that had been state-of-the-art no longer were by the time I got there,” McLay said in a recent interview. Data that the department had begun to collect in the decree era – including the racial and gender composition of those stopped by officers – continued to be gathered, but the department had fallen four to six months behind on reporting it. Officer flagged as potential problems were interviewed, but the interviews, McLay said, were “more superficial than remedial.” The department continued to collect information regarding problems, but failed to act on them, effectively documenting its own incompetence rather than fixing problems.

 In short: “Internal accountability had collapsed,” McLay said.

 Pittsburgh struggled in the aftermath of its experience with federal oversight, but other cities, notably Los Angeles, absorbed their decrees with more lasting effect, largely because U.S. District Judge Gary Feess would not let the city and the LAPD out from under the decree until he was convinced that the reforms were accepted as the right way to police, a cultural shift that took 12 years to attain. In the decree era for the LAPD, the police department became far more diverse – what was once considered a white, male, “occupying army” now is roughly as diverse as Los Angeles itself – and systems for monitoring and disciplining officers were refined and, eventually, accepted by the rank-and-file. It helped to have two consecutive chiefs, William Bratton and Charlie Beck, who thoroughly supported the reforms mandated by the decree and had time to implement them and sell them to the department’s ranks.

 Pittsburgh was let out from the decree far too soon, before the reforms became part of the bedrock undergirding the Pittsburgh PD. The police union led the charge to return the PD to its pre-consent decree days. Correctly perceiving that Chief McLay was not going to abide this, the union set about to drive McLay out of town. After tussling with the union for two years, McLay was out.  Thereafter, reform sputtered, and those opposed to it gained back some of the ground they lost during the decree period.

 The jury is still out on the Pittsburgh PD. Still, a woefully retrograde police department undeniably improved, and though it backslid, it has not returned to where it was before it attracted the attention of the federal government.

 What are the secrets to making the most of federal oversight? That question occupies McLay, who was recently hired to help push forward reform in the Seattle police department. The key, he believes, is not technology or systems, but rather a shift in attitude. Those departments that benefit most from federal oversight, McLay said, are those that use the decree experience to change their thinking from compliance with orders from a federal judge to a desire to improve and professionalize their work. Or, as he puts it, shifting “to developmental rather than punitive.” In other words, the police department needs to undergo a cultural shift toward seeing the consent decree reforms not as punishment but as the right, proper, safe, and lawful best practices for 21st century policing, as occurred in the LAPD.

 This suggests that judges with pending consent decrees should hold out for that lasting  cultural change. They may be the last best hope for reform in the face of the Trump Administration’s near implacable hostility to consent decrees.