What Should the Feds Do About Bad Cops?

Attorney General Jeff Sessions and the ousted top federal prosecutor for Chicago offered two different visions this week.

Yuri Grigas / Reuters

Zachary Fardon, the former U.S. attorney for the northern district of Illinois, was one of the 46 chief federal prosecutors who were ousted by the Trump administration last week. But he’s the only one who released an open letter on his way out.

In his five-page statement released Monday, Fardon emphatically defended the use of consent decrees to enact meaningful reforms in troubled police departments.  Fardon speaks with some experience here: During his tenure as the top federal law-enforcement official in Chicago, the Justice Department found systemic violations of constitutional rights during an exhaustive review of the Chicago Police Department’s practices and policies.

Two days later and a half-dozen states to the east, Attorney General Jeff Sessions offered his own vision of the federal government’s role in American policing. Bad cops do exist, he told an audience of federal and local law-enforcement officials in Richmond, Virginia. But he focused on how they allow other officers to be “unfairly maligned and blamed,” claimed that in turn leads to a rise in violent crime rates by demoralizing local police.

The implications of these two worldviews are significant: In Sessions’s view, bad cops are an individual problem, not a systemic one requiring federal scrutiny. In Fardon’s view, federal intervention is sometimes necessary to rein in unconstitutional policing.

What’s interesting is that Sessions and Fardon operate from roughly the same premise in their statements: that increased scrutiny of local police departments can lead to increased violent crime. (Activists and criminal-justice reform organizations are quick to challenge that theory by pointing to major cities like New York City and Los Angeles, where reforms didn’t lead to spikes in violent crime.) But Fardon and Sessions’ conclusions from there differ significantly, with important implications for the future of federal oversight of local policing.

Fardon began his tenure as the chief federal prosecutor in Chicago in 2013, shortly after a stray bullet killed 15-year-old Hadiya Pendleton a week after she performed at President Obama’s second inauguration. Her death focused national attention on the city’s gun crime problems, which have only grown since then. Fardon himself framed that rising tide of violence in stark and personal terms.

“At no moment during those three and a half years did the gun violence abate,” he wrote. “Every month, every year, innocents died, kids died. In 2014, 2015, and 2016 I showed pictures during speeches I gave—pictures of children, sweet and innocent, and dead from gun fire.” His letter outlined both the short-term and long-term causes that create those tragedies.

The short term factor, he explained, is a surge in violence since January 2016, shortly after the city experienced four major events: the release of the Laquan McDonald video, the opening of a Justice Department investigation into the Chicago Police Department, the firing of Superintendent Garry McCarthy, and a stop-and-frisk agreement between the ACLU and the CPD. The combination of those incidents, Fardon wrote, widened the gulf between the CPD and the communities they police. They also “poured gasoline” on the damage already done to Chicago’s communities of color by decades of plunder and racial segregation:

The long term is that Chicago has an entrenched gang problem in a limited number of neighborhoods on the south and west sides. For decades, those neighborhoods have been neglected. The reasons for that historic run of neglect are rooted in ugly truths about power, politics, race, and racism that are a tragic part of our local and national history and heritage. And as a consequence of those ugly truths, and the neglect they brought, these neighborhoods stand wrought with poverty and inadequate schools, businesses, jobs, and infrastructure. For many growing up in these neighborhoods, there is a sense of hopelessness, a belief cemented early in life that they’re not good enough for higher education and that they’ll never get good jobs. Gangs and guns are ubiquitous, and gangs fill the void created by that hopelessness; they teach kids crime and violence, and give kids protection, money, and a sense of belonging. That’s the long term reality, and long term challenge.

To address those entrenched issues, Fardon offered a few ideas. He wrote enthusiastically about building “brick-and-mortar” youth centers with existing federal grant money to create hubs for social services in each neighborhood, which could serve as alternatives to gangs. He recommended curbing gang members’ use of social media with direct interventions and through cooperation with parents, community members, and social media websites. (“Don’t send in the National Guard, send in the tech geeks,” he insisted.) And he complained that Chicago’s draconian bail-bond system traps impoverished nonviolent Chicagoans while allowing those accused of violent offenses to walk free.

Sessions made no reference to these historical forces in his Richmond remarks, let alone any solutions to them. His prescription for issues with American law enforcement was simple: more policing and less criticism of it. On the former, he called for tougher prosecution of violent crimes by federal prosecutors and closer cooperation by law-enforcement agencies to crack down on the illegal-drug trade. On the latter, he raised the specter of more violent crimes if police authority was undermined.

“Unfortunately, in recent years law enforcement as a whole has been unfairly maligned and blamed for the unacceptable deeds of a few bad actors,” Sessions said. “Too many of our officers, deputies, and troopers believed the political leadership of this country abandoned them. Amid this intense public scrutiny and criticism, their morale has gone down, while the number of police officers killed in the line of duty has gone up.”

Sessions then drew a direct connection between the rise in violent crime and increased public scrutiny of local police departments. “Many of you who are law enforcement leaders have also told us that in this age of viral videos and targeted killings of police, something has changed in policing,” he said. “Some law enforcement personnel are more reluctant to get out of their squad cars and do the proactive, up-close police work that builds trust and prevents violent crime. In some cities, arrests have fallen even as murder rates have surged.”

Fardon doesn’t seem to entirely disagree. In the letter, he painted a similar picture of the Chicago Police Department’s struggles in the aftermath of the Laquan McDonald shooting. “By January 2016, the city was on fire. Cops were under scrutiny. Cops had to worry about the ACLU deal. And many of them just no longer wanted to wear the risk of stopping suspect,” he explained. “So cops stopped making stops. And kids started shooting more—because they could, and because the rule of law, law enforcement, had been delegitimized. And that created an atmosphere of chaos.”

But his solution to this problem was more scrutiny of police departments, not less of it. Outside intervention, he argued, is necessary to bring about change. “The media routinely calls [the Justice Department report] a scathing indictment of CPD,” he wrote. “Not accurate. The report is not a scathing indictment. It may be hard hitting but it is measured and fair. We didn’t say cops are bad. We said CPD has systemic problems that prevent it from supporting good officers, or checking bad officers. And so culture and morale suffer. That’s the truth.”

The federal component, Fardon argues, is especially critical when facing complacent or easily distracted local political bodies. “If you leave correcting those deficiencies to the vagaries of city politics, then you likely lose the long term fight,” he wrote. That may be doubly true for Chicago itself, a city with notoriously ossified political systems. “This city’s history is replete with examples of saying the right thing, in some cases starting the right thing, but then losing focus, particularly if and as the media and public attention pivot toward whatever is the latest crisis.”

That pivot may be imminent. As a senator representing Alabama, Sessions was a prominent skeptic of tighter constraints on law enforcement. He carried that stance into his new role as attorney general, telling legislators during his confirmation hearings that he worried consent decrees “undermine the respect for law enforcement.” Fardon may be right about what’s needed to fix struggling police departments. But Sessions is the one with the opportunity to put his theory to the test.