The Folly of ‘Consent’

The recent consent decree relating to ‘racial profiling’ by the State Police negotiated by the Glendening administration and accepted in modified form by Governor Ehrlich appears to put a nasty controversy to rest: one which united ‘hit and run’ politics and identity politics in one toxic package. Such decrees nonetheless raise serious concerns.

Policing is the largest responsibility left to states. Society, not least minorities, has an intense interest in its fairness and effectiveness. Many gains deriving from the civil rights movement have been vitiated by crime and addiction. The styles of policing following the Kerner report in the United States and the Mac Pherson report in Britain were not policy success stories. Racist police forces are evil; so are demoralized ones. Excess breeds failure; consent decrees against double celling in the 1970s gave rise to reaction against releases that has chilled prison reform ever since. Consent decree abuses on the national level gave rise to the Prison Litigation Reform Act of 1995 limiting prison consent decrees to two years.

States were once thought incapable of surrendering their discretion by consent decree. Since the retirement of Attorney General Burch in 1979, these alliances of advocacy groups and the Attorney General’s office have unhappily become commonplace in Maryland. A special education decree has lasted 20 years, exploding costs for bureaucracies, computers, and gifts to parents while doing nothing to recruit qualified teachers. A school financing decree produced vast Thornton appropriations, while leaving unreformed the recruitment, testing, education, assignment, pay, and discipline of unionized teachers. A housing decree limiting its unwisely selected beneficiaries to residence in areas chosen for them by the consenting parties has damaged communities, including Patterson Park and Columbia.

Two former advocacy group lawyers, Profs. Ross Sandler and David Schoenbrod, recently published Democracy by Decree (Yale U.P.). This shows how even the most innocuous consent judgments enlarge themselves, “easy to enter, but hard to exit.” Consenting agencies lose their bargaining power. Violations occur : “no matter how well officials run a prison [or] police department, they simply cannot guarantee that all of its employees will stick to rules.” When officials are cited for contempt, “courts do not allow them to challenge belatedly the obligations to which they consented.” Contempt citations are dropped in exchange for more decrees, a process which takes place largely in secret. Legislative bills can be read on the internet, but finding a decree requires time, patience and money. Any citizen can testify in Annapolis; intervenors are as welcome in federal litigation as skunks at a garden party. “The great mass of less organized and sophisticated interests…get no seats at this judicially managed, invitation-only table of government.” Once a decree is entered, “a legal and moral cloud hangs over…governments.” Righteousness turns to self-righteousness; plaintiffs with “special claims on government and an entitlement to attorneys’ fees” have an interest in making everything a matter of high principle. “Peace becomes impossible”, though plaintiffs and defendants learn to conspire to increase agency budgets.

Private corporations frequently settle damage cases, but not for limits on their future action. Politicians are more careless. But people who ‘care not who makes the laws nor how, so long as the laws are to their liking’ betray the democratic process. Legitimately needed restraints on state agencies should come from executive orders or state laws which, unlike court decrees, can readily be changed if found to be inadequate or excessive. Legislators concerned with behavior of the state police or other agencies have every reason to legislate, but no business asking the Governor to surrender by decree their right to do so.

Posted in: Comment, Judiciary and Legal Issues