Department of Justice

Stop Expecting the Justice Department to Fix Your City's Abusive Fining and Policing Practices

Accountability starts at home.


Jeff Sessions
Yin Bogu Xinhua News Agency/Newscom

One would be forgiven for thinking that over the holiday weekend, Attorney General Jeff Sessions gave cities permission to throw poor people in jail and burden them with huge fines. There were headlines that suggested exactly that. (Here's one from Vice: "Jeff Sessions gives OK for towns like Ferguson to hit the poor with heavy fines.")

What actually happened was mostly symbolic: Right before Christmas, Sessions announced that the Department of Justice was rescinding 25 "guidance" documents produced over several decades. These documents were essentially Justice Department interpretations of what federal regulation and statutes meant in practice, often based on court rulings. Sessions argues that these guidance documents were either "unnecessary, inconsistent with existing law, or were otherwise improper."

It would be more accurate to say that what Sessions' action does is signal that his Department of Justice is not going to be coming into cities and demanding that they be less harsh on the citizenry. That's not terribly surprising, unfortunately. We've seen Sessions' criticism of Justice Department agreements with city police departments to try to restrain abusive policing practices.

Sessions' revoking this guidance technically changes nothing at all. If the Justice Department believes cities are violating citizens' civil rights, it can still sue them. Former Civil Rights Division head Vanita Gupta said the guidance letter came specifically because cities were asking the Justice Department for information and says that the letter explained existing laws and court precedents.

One of these guidance documents was a "Dear Colleague" letter from 2016 from the Civil Rights Division warning municipalities against using fines and fees—particularly against poor people—as a mechanism to fund the government. This guidance came in the wake of the unrest and protests in Ferguson, Missouri, after the killing of Michael Brown by local police. Brown's death wasn't connected to the town's court system, but the sudden media attention on St. Louis County highlighted that many of the small communities that lacked a strong tax base were bankrolling their government and courts with harsh, relentless systems of fees and fines.

This Justice Department guidance warned this behavior by cities could be considered an unconstitutional violation of civil rights and could result in federal lawsuits and encouraged cities to develop alternatives to tossing poor people in jail if they couldn't afford fees or fines.

Sessions' actions serve as a useful reminder that the federal government should not be seen as the cavalry that can come running in to fix abusive behavior by police departments. It's not, and typically when the Justice Department comes in and tries to tell local police what to do, it's all about demanding more training and bureaucracy and much less about getting rid of bad cops. When the Justice Department got involved in Ferguson's operations, they actually ordered the town to pay its police officers more at the same time that it was warning them about fining the citizenry too much.

All of this inappropriate focus on whether the Justice Department will and won't punish bad policing practices distracts from the real problem: the wholesale inability or unwillingness of states and cities to punish and expel bad police officers. The emphasis on training and constitutional enforcement is a way of trying to ignore that union power has made it next to impossible to get rid of the bad apples. Federally mandated institutional changes are not going to matter as long as state and local laws and union-negotiated processes prevent law enforcement agencies from kicking out bad cops. Nor does it do anything about the oppressive municipal laws themselves that push the police to ticket and punish poor people over the things they have to do to get by in the first place (like street vending).

As an example, right now Chicago's police union is suing because the police department is implementing stricter guidelines on the use of stun guns, attempting to stop officers' overreliance on them on people who are running away or intoxicated. The police union's complaint is that these rules were implemented without their participation and approval. But the circumstances by which the police are allowed to unleash violence on citizens should not be something subjected to collective bargaining.