An end to the war on the police? The Sessions Memo

An end to the war on the police? The Sessions Memo
Sen. Jeff Sessions

The days of the Justice Department wrongly labeling police departments as racist because blacks have a higher arrest rate than whites may be coming to an end. The Washington Post reported today on a March 31 memorandum from Attorney General Jeff Sessions ordering a review of Obama-era consent decrees with police departments:

Attorney General Jeff Sessions ordered Justice Department officials to review reform agreements with troubled police forces nationwide, saying it was necessary to ensure that these pacts do not work against the Trump administration’s goals of promoting officer safety and morale while fighting violent crime.

In a two-page memo released Monday, Sessions said agreements reached previously between the department’s civil rights division and local police departments — a key legacy of the Obama administration — will be subject to review by his two top deputies, throwing into question whether all of the agreements will stay in place.

The memo was released not long before the department’s civil rights lawyers asked a federal judge to postpone until at least the end of June a hearing on a sweeping police reform agreement, known as a consent decree, with the Baltimore Police Department that was announced just days before President Trump took office…. Sessions has often criticized the effectiveness of consent decrees and has vowed in recent speeches to more strongly support law enforcement.

Since 2009, the Justice Department opened 25 investigations into law enforcement agencies and has been enforcing 14 consent decrees, along with some other agreements.

The Obama administration and liberal politicians wrongly assumed that higher black arrest rates were proof of racism, even though they just reflect a higher crime rate among blacks. By peddling this false notion, the Obama administration fanned the flames of hostility towards the police. Hopefully, Attorney General Sessions’ memo, which was filed on April 3 in the Justice Department’s case against the Baltimore Police Department, will lead to the Civil Rights Division revisiting consent decrees that reflect that false assumption.

This erroneous assumption about arrest rates being racist appears to be embedded in the proposed consent decree for the Baltimore Police Department drafted by the Obama Justice Department, although the consent decree is so confusingly worded it is hard to be certain. That’s because it defines “‘discriminatory policing'” to include “disparate impact on individuals” of a particular race (which might include colorblind police arresting more blacks only because the black crime rate is higher, not because of racism), but confusingly also prefaces it with the words “differential enforcement” (which might require a showing that blacks are being treated worse by police than whites, rather than just committing more crimes). Here is its confusing definition of “discriminatory policing” from page 196, paragraph “cc” of the consent decree: “Differential enforcement or non-enforcement of the law, including the selection or rejection of particular policing tactics or strategies, that has a disparate impact on individuals of a Demographic Category.”

This erroneous assumption was definitely found, over and over again, in the Justice Department’s shoddy Ferguson report, which found Ferguson guilty of racial discrimination based on embarrassingly obvious statistical mistakes. Former civil-rights lawyer Hans Bader pointed out that Ferguson may not have been guilty of institutional racism, even if it was badly run and sometimes treated its hapless citizens as ATM’s. As he observed, the Justice Department complained that “’even though only 67 percent of Ferguson’s population is black, from 2012 to 2014, 85 percent of people stopped by Ferguson police, 93 percent of people arrested, and 90 percent of people who received citations were black.’” But such crude comparisons to the general population are frowned on by the Supreme Court, even in disparate impact cases. (See, e.g., Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 992 (1988)). As Bader pointed out, the Justice Department’s unfounded assumption

led a black labor lawyer and civil-rights official to conclude that “the Ferguson Report is a Farce” that disregards basic “math.” He wrote that “several studies over the last 20 years (including data adduced before the U.S. Commission on Civil Rights) show that black drivers commit various types of traffic offenses – including speeding, driving under suspension, DUI, and running red lights and stop signs – more often than drivers of other races.”

The Justice Department’s statistical assumptions contradict the U.S. Supreme Court’s 8-to-1 ruling in United States v. Armstrong (1996). That ruling rejected the “presumption that people of all races commit all types of crimes” at the same rate, which is “contradicted by” reality. For example, blacks commit nearly half of America’s murders, according to the FBI, even though they are only 13 percent of the population, according to the Census Bureau.

Contrary to President Obama’s suggestion that the statistical racial disparities identified in the Ferguson report were not typical or “the norm,” the Justice Department itself in a footnote on page 77 of its report that disparities are worse throughout the state of Missouri than in Ferguson. It views this as raising “considerable concerns about policing outside of Ferguson as well.” (Similarly, USA TODAY reported that “at least 1,581 other police departments across the USA arrest black people at rates even more skewed than in Ferguson, a USA TODAY analysis of arrest records shows. That includes departments in cities as large and diverse as Chicago and San Francisco and in the suburbs that encircle St. Louis, New York and Detroit.”)….

Under federal court precedent, the fact that the Ferguson’s statistical disparities weren’t greater than disparities in other cities across the country seriously undercuts the Justice Department’s conclusions of intentional discrimination. In People Who Care v. Rockford Board of Education (1997), a federal appeals court ruled that racial disparities in school suspension rates in a school district weren’t evidence of intentional discrimination, where they were no greater than disparities nationally. (It also ruled that the school district could not constitutionally be ordered to not suspend a higher percentage of black students than white students, since that would create pressure to consider race in suspensions, in light of the potentially higher black infraction rate). Moreover, as I have explained elsewhere, the Justice Department’s disparate-impact regulations are themselves of dubious legality under the logic of the Supreme Court’s 2001 decision in Alexander v. Sandovalwhich blocked private “disparate impact” lawsuits under Title VI, and held that the Title VI statute does not reach disparate impact.

Moreover, it is questionable whether the Justice Department properly controlled for non-racial factors in its statistical analysis. For example, the white population in Ferguson is a lot older on average than the black population. Every criminologist will tell you crime rates go down as people age. You don’t as often see a middle age or elderly person speeding or resisting arrest. So you would not expect to see the same arrest rate for whites as blacks in Ferguson given how much older whites living there are.

These Justice Department errors were obvious. Even disparate-impact claims require that non-discriminatory factors like age be taken into account, as courts have long said. For example, when one of the nation’s most liberal appeals courts allowed an employer to be sued for “disparate impact” for disciplining more blacks than whites, it did so only because the disparity existed even after controlling “for various factors that one would expect to be relevant to the likelihood of disciplinary action,” such as “age,” seniority, “department,” and whether the employee was in “management.” (Caridad v. Metro-North Commuter Railroad Co., 191 F.3d 283, 292-93 (2d Cir. 1999)).

Claims that police are racist in shootings are debunked by a recent study by a liberal-leaning black Harvard economics professor, Roland G. Fryer. His study, analyzing more than 1,000 officer-involved shootings across the country, found no evidence of racial bias in police shootings. Another study cited by the Manhattan Institute’s Heather Mac Donald in the Wall Street Journal, by Washington State University researcher Lois James, also debunked claims that police shootings are the product of racism against blacks. Nor are such shootings the result of a lack of racial diversity in police departments, as diversity provisions in the proposed Baltimore consent decree might suggest. As Mac Donald notes, “In 2015 a Justice Department analysis of the Philadelphia Police Department found that white police officers were less likely than black or Hispanic officers to shoot unarmed black suspects.”

Liberal politicians claim that police must be racist because 26% of those shot by police in 2015 were black, compared to 13% of the population. But that higher rate simply reflects the higher crime rate in the black community, and the fact that black suspects are disproportionately likely to pose a risk to police. As the Daily Wire notes, “Blacks are more likely to kill cops than be killed by cops. This is according to FBI data, which also found that 40 percent of cop killers are black.” Moreover, a “police officer is 18.5 times more likely to be killed by a black than a cop killing an unarmed black person.” And the risk of violent crime comes disproportionately from blacks. More than half of all murders in America are committed by blacks, who are just 13% of the population. (See FBI, “2014 Uniform Crime Reports: Crime in the United States,” Table 43A, Arrests by Race, 2014.)

The Obama administration’s attack on police was echoed by its attack on school teachers and principals. They were similarly deemed guilty of racism if they suspended more black than white students. Now that the Obama administration is reviewing police consent decrees, it should also review Obama-era settlement agreements with school districts demanding that schools eliminate disparities in suspension rates, or “disproportionate” rates of suspending black students — demands which legally constitute racial quotas in suspensions. (See, e.g., Agreement to Resolve Oakland Unified School DistrictOCR Case No. 09125001 (Sept. 27, 2012)). Some of those agreements followed the issuance of Obama administration’s 2014 school discipline guidance pressuring school systems to have informal racial quotas in suspensions. (See, e.g., Settlement Agreement between the United States of America and Wicomico County Public SchoolsJan. 2017).

Never mind that, as Katherine Kersten wrote months ago in the Minneapolis Star-Tribune, black students’

discipline rate is higher than other students’ because, on average, they misbehave more. In fact, a major 2014 study in the Journal of Criminal Justice found that the racial gap in suspensions is “completely accounted for by a measure of the prior problem behavior of the student.” That problem behavior can manifest itself in other ways. Nationally, for example, young black males between the ages of 14 and 17 commit homicide at 10 times the rate of white and Hispanics of the same ages combined.

You can find that 2014 study, by the University of Cincinnati’s John Paul Wright and four other researchers, at this link. (It is entitled “Prior problem behavior accounts for the racial gap in school suspensions,” and is found in the Journal of Criminal Justice, Volume 42, issue 3, pages 257-266, May-June 2014). But many progressives refuse to accept this reality. They believe the false notion, at odds with state and Justice Department juvenile delinquency statistics, that student misconduct rates do not differ by race, when they in fact differ profoundly.

Based on this fallacy that misbehavior rates do not differ, the Justice and Education Departments have pressured school districts to adopt veiled racial quotas in school suspensions. (See their Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline, issued on January 8, 2014).

But as the Daily Caller noted in 2014, “an appeals court ruled in People Who Care v. Rockford Board of Education (1997) that schools cannot use racial quotas in discipline, striking down a rule that forbade a ‘school district to refer a higher percentage of minority students than of white students for discipline.’ Ignoring that ruling, the Obama administration has pressured school districts such as Oakland and Palm Beach County into imposing veiled racial quotas.”

Given the staggering percentage of black kids born into fatherless homes, higher rates of misbehavior among black kids are to be expected. Consider these frightening statistics about how the vast majority of juvenile delinquents and young criminals come from broken homes:

  • 85% of all children that exhibit behavioral disorders come from fatherless homes (Source: Center for Disease Control)
  • 80% of rapists motivated with displaced anger come from fatherless homes (Source: Criminal Justice & Behavior, Vol 14, p. 403-26, 1978.)
  • 70% of juveniles in state-operated institutions come from fatherless homes (Source: U.S. Dept. of Justice, Special Report, Sept 1988)
  • 85% of all youths sitting in prisons grew up in a fatherless home (Source: Fulton Co. Georgia jail populations, Texas Dept. of Corrections 1992)

As the liberal Brookings Institution recently pointed out, “black students are also more likely to come from family backgrounds associated with school behavior problems; for example, children ages 12–17 that come from single-parent families are at least twice as likely to be suspended as children from two-parent families.” (Tom Loveless, The 2017 Brown Center Report on American Education: How Well Are American Students Learning?, Brookings Institution, March 2017, pages 30-31).

Sessions’ memo is titled “Supporting Federal, State, Local, and Tribal Law Enforcement,” and is addressed to “Heads of Department Components and United States Attorneys.” It was filed in United States v. Police Department of Baltimore City, et al., Civil No. JKB-17-0099.

Jerome Woehrle

Jerome Woehrle

Jerome Woehrle is a retired attorney and author, who writes about politics.


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