There are many statements that can strike fear into the heart of a police chief, but hearing the agency is under a federal consent decree is among the most daunting. Once a chief reads the document and understands the requirements—and the panic subsides—his or her next thoughts are likely, “This will take years!”; “How can we afford this?”; and “Crime is going to go through the roof!” It is important to take a step back and look at the big picture. Something happened to get the situation to this point. Consent decrees and all the other forms of external monitoring and oversight have all started with some form of diminished “trust” between the community and the agency.

A leader should accept this, embrace it, and use the opportunity to mold the department into an agency that serves the community in the ways the community wants to be served.

How can this be done? First, the critical elements in the consent decree must be identified and analyzed against existing practices—and a framework for changes needs to be outlined. Most of the time, the critical elements in the decree involve police-citizen interactions (e.g., “stop and frisk”), police use of force, department policy and training deficiencies, and insufficient supervision and accountability. No chief would argue that these are not important areas that can always be improved. Second, an independent, internal mechanism needs to be created to facilitate how the department will comply with the various decree requirements; incorporate the necessary changes; and develop the data collection, analysis, and reporting mechanisms needed to show compliance. Third, and perhaps most important, people with the knowledge, skills, temperament, and vision should be selected to make it all work. This will probably include new, noncommissioned professionals with diverse skills and a broad, outside view of the issues. Fourth, do not become defensive of the criticisms presented in the consent decree or obstruct the processes or changes needed. Change will come. How long it will take, how much it will cost, and the upheaval engendered is significantly under agency leadership’s control. Make sure the messages communicated to the officers and personnel about the process, leadership’s commitment, and the changes needed are positive and consistent.

Step 1:
Identify and Understand

Consent decrees are written by lawyers. The language will be “legalese” and will not easily translate into law enforcement lingo. Be prepared to ask the monitoring team, the Department of Justice (DOJ), and the agency’s legal advisor before diving too deep into outlining an approach to address a particular issue. It will save a lot of time and frustration if everyone is speaking the same language.

Once the critical areas outlined in the consent decree have been identified, clearly break down what the agency has been doing in those areas (e.g., policy, training, supervision, discipline) and try to identify weaknesses or points of failure. This will often involve meetings with internal subject matter experts. Objectivity will be difficult to maintain as some may become defensive about the areas under their purview. This process should produce an outline of corrective measures to attain compliance in each area. Always remember to touch on all aspects of policy, training, supervision, and accountability for each critical area under review.

As an example, if a department needs to revise its use-of-force policy, then the proposed solution should specifically address the type and cycle of training to be done to ensure the changes get out to the entire department and that all training is documented. This will mean a review of the written lesson plans (both basic and in-service), training bulletins, roll call training, and other forms of communication the department uses for messaging, as well as a review of how training will be documented. A tracking mechanism to show to the monitoring team and DOJ that every member has successfully completed the updated training within the time frame required must exist. A mechanism of supervisory reporting and for review of a subordinate’s use of force should be in place to ensure members are applying the guidelines correctly or to identify issues that need to be addressed by training or policy changes. An audit or review process should exist to allow for ongoing sampling of actual uses of force in the field to ensure that close and effective supervision is taking place. Finally, there should be a mechanism for accountability and corrective action for those identified cases where members (or supervisors) did not follow policy and training.

Step 2:
Create an Internal Compliance Unit

A department that does not effectively internally “police” itself will subject itself to external controls. A law enforcement agency should have an internal unit that focuses on processes. The structure or mechanism to facilitate compliance will, for most agencies, involve creating a compliance unit to act as the facilitator and buffer among the consent decree monitoring team, the DOJ, and the rest of the police agency to smooth the way. This unit can reduce the inherent friction and misunderstanding caused by change. It should also provide consistency, both internally and externally, in messaging and reporting. The compliance unit should foster the development of professional, working relationships among the monitoring team, the DOJ, and the police agency.

The compliance unit can be responsible for the various con-sent decree requirements, including incorporating the necessary changes and developing the data collection, analy­sis, and reporting mechanisms needed to show compliance. The compliance unit must have internal independence and answer directly to the chief or agency executive in order to accomplish its mission effectively. There can be significant inertia and resistance to change from those units responsible for the daily operational requirements of calls for service and investigations, as they may view the changes as directly impacting their productivity or ability to fight crime. This inertia tendency precludes the compliance unit from being placed within the chain of command of an existing operational unit’s structure.

Every element of a consent decree will be subject to reporting as progress is made. The reporting and analysis will have to have an objective, factual basis (evidence based and data driven) that can be audited and reviewed by the monitoring team and DOJ. In many cases, data collection processes will have to be created or expanded to meet the reporting requirements.

As an example, if the consent decree has a bias-free policing component, the agency will be put in the position of having to show it is not discriminatory (trying to prove a negative). This hurdle may require capturing all official interactions between the community and agency members. In many cases, this “proof” requires an expansion of existing field interview documentation to include all types of official interactions and not just Terry stops. By collecting all official interactions, the agency can analyze the entire body of data to show it is nondiscriminatory and free of bias in its policing.

Step 3:
Select the Right People

Staffing the compliance unit must focus on identifying the diverse skill set needed to address all elements of the consent decree. Law enforcement agencies might have some capabilities fulfilled internally (e.g., policy writing), but they often have to fill additional staffing needs from outside the agency (capacity building). Most agencies do not have sufficient capability for the amount and type of data collection and analysis required by consent decrees, nor the auditing capability necessary to satisfy the reporting (proof) requirements. Hiring civilian professionals with the required skills who can provide an outside perspective can be of benefit. The unit and agency benefits by the outside perspective and the interdisciplinary approach available by bringing in civilian professionals. It is also important that all members of the compliance unit have good “people skills”—a significant component of the work will involve working with others internally and externally and being able to get buy-in for the process and final product.

Agencies going through a consent decree can learn more about the process by reading the special issue on consent decrees of Police Quarterly (volume 20, no. 3). See especially, Geoffrey Alpert, Kyle McLean, and Scott Wolfe, “Consent Decrees: An Approach to Police Accountability and Reform,” Police Quarterly 20, no. 3 (September 2017): 239–249.

Consent decrees generally require a four-step process: (1) changes are reflected in sound policy, (2) the department conducts effective and ongoing training on the policies, (3) close and effective supervision ensures policies and training are followed, and (4) a system of accountability is in place and effectively utilized to manage any identified misconduct. Compliance is achieved when the agency under the decree can demonstrate that the process has been institutionalized and applied consistently over time.

Step 4:
Embrace Change

No one likes to be publicly criticized, and police officers of all ranks are often very protective of their agencies. Federal consent decrees do not occur easily and generally are issued in reaction to a significant action or incident (e.g., the shooting of Michael Brown in Ferguson, Missouri, or Freddie Gray’s death in Baltimore, Maryland) or systemic issues involving civil rights and constitutional policing. However the agency got there, a consent decree dictates what changes must take place. A consent decree is an agreement or settlement to resolve a dispute between two parties (the law enforcement agency and the DOJ) without admission of liability (in a civil case). Policy makers in the agency have to accept the criticisms as valid and move forward. The willingness of a chief and agency to embrace the opportunity for change can have a significant, positive impact on the duration of the process. The acceptance of the process has to be effectively and consistently communicated to the members of the department to prevent the passive-aggressive grassroots resistance that can develop out of miscommunication from the chain of command.

Consent decrees offer agency leaders an opportunity to bring their agencies to the forefront of modern policing; redefine their missions and branding; and establish a closer, more effective relationship with the communities they serve. The collateral benefits to retention, recruitment, job satisfaction, community support, crime prevention, and the overall image of the department are immense and important.

Please cite as

Michael A. Pfeiffer, “Embracing the Opportunity for Change: Leading Under a Federal Consent Decree,” Police Chief 87, no.1 (January 2020): 26–28.