The Empty Promise of the Baltimore Consent Decree: A Progressive Critique
Updated: Jul 21, 2019
Stories involving Baltimore policing are often presented, debated, and discussed among officials and media as if everything is normal and most of the Baltimore Police Department command structure hasn’t been a mess of corruption, dysfunction, blame shifting, and/or criminality for some time.
I've spoken with dozens of police and legal sources who have confirmed that the Baltimore Police Department is essentially broken. Even commanders admit it when they leave the department. BPD has been under both criminal and civil rights federal investigations for years. Two commissioners left in disgrace within three months in 2018. Last year, there was one headline story of officer misconduct after another. Police have spoken in court about institutional support for overtime fraud, among other issues.
One source of hope has been that the federal government, under President Obama, stepped in to oversee BPD, beginning with the "patterns and practice” civil rights investigation that resulted in the 2016 Department of Justice report. That report led to the January 2017 “Consent Decree,” a court-mandated program in which BPD would be responsible to a “Monitoring Team” made up of a selected group of legal outsiders and a list of reform objectives. The selected team began its effort in January 2018.
Early stories about the Consent Decree emphasized two opposed camps: critics, ranging from former Attorney General Jeff Sessions to former BPD Deputy Commissioner Tony Barksdale, who expressed that police would be hindered from practicing some of their basic crime-fighting skills; and local residents, desperate for outside eyes on the department, including a mother whose son was killed by police.
Yet, within those early discussions were also some skeptical voices on the progressive left. Local activist Tawanda Jones, whose brother was killed by police in 2013, was quoted in the New York Times: “What does a piece of paper mean? It means nothing. It’s not a training issue; it’s a system that is broke. It’s a system that doesn’t hold people accountable.”
Unfortunately, a year into its efforts, and Jones’ fears seem to have been proven true. Surely, the Consent Decree will achieve some good. But, as I learned in a recent community meeting, the city will be spending over $1.5 million annually to paint yet another coat of reform on the department, duplicate some efforts that have already taken place, and actively decline to investigate specific cases and individuals where corruption might be an issue.
THE COMMUNITY CONVERSATION
On January 30th, I attended a “community conversation” at the Impact Hub that was advertised as a chance to learn more about “measuring progress with the Baltimore Consent Decree.” It ended up being a confusing panel-led rambling session with an underlying interest in recruiting interviewers and participants for the community survey.
The session did explain the Monitoring Team's slow roll-out. The team has had trouble gathering quantitative data from BPD. At one point, one of the speakers listed the four identified areas of concern covered by the DOJ report that the BPD monitors will address:
(1) police making unconstitutional stops, searches, and arrests;
(2) police using enforcement strategies that produce severe and unjustified disparities in the rates of stops, searches and arrests of African Americans;
(3) police using excessive force; and
(4) police retaliating against people engaging in constitutionally-protected expression.
A few people in the audience (myself included) raised questions about a missing puzzle piece in terms of holding BPD accountable, namely the agency’s “pattern and practice” of covering up its own officers’ misconduct. That’s not on the list, but it’s arguably the most important area that could lead to long-term reform. Local residents shared about police reports not matching their lived experiences and investigations that were swept under the rug. Journalists and other investigators, like myself, shared about documented examples of evidence manipulation, protected or overseen by higher-ups. Residents also referred to the information that came out in the GTTF trials about supervisors protecting criminal officers.
The representative of the BPD Monitoring Team, Seth Rosenthal, made it clear that it was not going to be the team’s job to investigate BPD at that level. When asked directly, he answered, “no.”
Instead, he promised that these issues would be addressed via training provided to Internal Affairs and departmental supervisors to do better at monitoring their own officers. This wasn’t the answer the audience needed to hear. The rest of the discussion was tense. Audience members asked Rosenthal what happens when those supervisors are part of the problem. He had no answer.
Rosenthal pointed to the State’s Attorney’s Office as the guardians of that line of work, but SAO isn’t actively monitoring BPD on a daily basis. It doesn’t have the capacity, for one, let alone the political will. Prosecutors rely on the cases that BPD brings them. SAO does have a small office called “Police Integrity,” but half of its job involves negotiating how much (or little) BPD personnel history to hand over to defense attorneys. So that office has a build-in conflict of interest.
It’s not Rosenthal’s fault that the scope of his efforts is so limited. The limits of the BPD Monitoring Team are a direct result of the 2016 DOJ report itself. The report exposed shocking behaviors of officers but stopped at documenting low-hanging fruit. The Monitoring Team’s first year plan emphasizes a primary focus on training and policy. Even the objectives related to “Misconduct Investigations and Discipline” are all related to "policies and systems."
It is nonetheless frustrating that Rosenthal seemed entirely uninterested in the evidence that audience members were willing to provide of unethical leadership. In fact, he came off as annoyed by the questions and comments.
Like other police Consent Decrees around the country, Baltimore’s agreement is limited to surface changes in technology, training, and protocol. The programs are designed to work with police departments as partners, not to question or undermine their leadership.
A HISTORY OF PERFORMED REFORM
I truly hate to say it, but some of what Jeff Sessions complained about was right: Baltimore’s Consent Decree was rushed into place before Trump’s administration could destroy it. This speedy process allowed for too much involvement with Baltimore’s leadership at the time.
By way of background, Anthony Batts took over BPD in 2012, branding himself as a reformer. The changes he instituted - from getting rid of patrol officer "beats" to instituting a Force Investigation Team (FIT) that lacked the training or capacity to investigate deaths in custody - earned him the nickname “Hurricane Batts.” Batts invited the DOJ to investigate the department. By mid-2015, Batts was pushed out.
Batts’ successor, Commissioner Kevin Davis, continued to set a reform-minded tone publicly. Like Batts, he smiled with DOJ leaders in photo-ops. By the time the Consent Decree was signed, in early 2017, a new mayor, Catherine Pugh, had just taken office. A New York Times article quoted her highest priority: “training, training, training, training.”
Certainly, training could be improved within BPD. Yet, with some exceptions, policies today are quite detailed and progressive. They became even more detailed and progressive under Batts and Davis. The problem is that policies are often disregarded without accountability, especially as they have grown more technical. According to experts, cops are often instructed by their supervisors to “throw out the book” and focus on what they learn on the streets.
So the conversations around the Consent Decree would sound positive and fruitful if we were talking about a department with a some bad apples and not a rotten barrel. Another thing that went wrong in the establishment of the Consent Decree is that the DOJ negotiated in good faith with bad (or at least compromised) actors.
CONFLICTS AND PAYCHECKS
The Consent Decree will be around for a long while, according to monitors. Rosenthal said it would continue for as long as it was needed, which he probably doesn’t mind, given his $152,000 a year paycheck. An April 2018 invoice to the city from the Monitoring Team showed expenses of over $160,000 for that month alone.
The Monitoring Team submitted this invoice to the city’s legal department, under City Solicitor Andre Davis. Davis helped select the team, which has received criticism for its high number of law enforcement professionals and pattern of representing police in civil cases. Davis also helped staff and oversees the Consent Decree-required Community Oversight Task Force (COTB), which includes some of the mayor's political supporters. Davis is a controversial figure who has already caused a stir by trying to get the Civilian Review Board (CRB) to sign a non-disclosure agreement.
The CRB, Monitoring Team, and COTB are supposed to provide a public check on governance. They should not be beholden to the city’s legal advocate, whose job it is to protecting the city from harm and negotiate settlements with police victims.
Overall, the Consent Decree is yet another example, like the Sean Suiter Independent Review Board, of money being spent on outsiders that are not fully independent. The Monitoring Team relies on BPD and City Hall for good faith information and paychecks.
And this trend continues. Acting Commissioner Gary Tuggle told Consent Decree Judge James K. Bredar that Johns Hopkins would be involved in helping examine how GTTF was allowed to happen. Presumably, he was referring to the Hopkins Center for Gun Policy. Tuggle sits on its Advisory Board.
The Center’s last report, released in January 2018, came to the conclusion that the solution to Baltimore shootings was best met by police units like the Violence Crime Impact Section (VCIS) and Gun Trace Task Force (GTTF), rather than community-oriented approached. This was published a year after GTTF supervisors and officers were indicted, officers who had honed their criminal skills for a decade in VCIS squads. The report made only brief mention of corruption.
More important, the Hopkins 2018 report failed to disclose conflicts of interest in its advisory board. For instance, Deputy Commissioner Dean Palmere, who oversaw VCIS and GTTF, sat on the advisory board for that report. A few weeks after the report was published, he was named in court as a co-conspirator to the GTTF officers; he retired the same day.
I reached out to the Center’s leader, Daniel Webster, to inquire who sat on their advisory board today. This was the list he provided:
Acting Commissioner Gary Tuggle Deputy Commissioner Andre Bonaparte BPD Chief of Staff James Gillis Col. Byron Conaway (Criminal Investigations Division) Col. Richard Worley (oversees Violence Reduction Initiative) Lt. Col. Donald Bauer Major John Herzog
Lt. Azalee Johnson and Sgt. Tom Smith - Crisis Intervention Team leads Various other BPD commanders and staff over the years, depending on the project
From SAO: Marilyn Mosby Michael Schatzow Terence Nash (heads Crime Strategy Unit) Charles Bloomquist (heads Gun Violence Enforcement Division)
From the Mayor's Office of Criminal Justice: Andrew Vetter (director who just left) Tyrone Roper (new acting director)
This team should not be continuing to advise on any academic review of police corruption, especially GTTF. These are individuals that have a given interest in protecting themselves and their friends and colleagues.
Once again, the problem is that an enormous amount of money will be spent on watchdog entities promising to cure the city’s disease of corruption. But these watchdogs (even the FBI, to an extent) will not make progress by continuing to negotiate in good faith with compromised actors. Someone, at some point, needs to be the bad guy and make enemies.