Vanita Gupta: “No Such Thing as a Perfect Police Department”

The cost of "unconstitutional policing ... can be devastating," says Vanita Gupta of the Justice Department's Civil Rights Division.

The cost of "unconstitutional policing ... can be devastating," says Vanita Gupta of the Justice Department's Civil Rights Division.

June 28, 2016

The beating of Rodney King by Los Angeles police officers in 1991 ignited a national furor over the issue of police brutality against minorities. When the officers involved were acquitted, some of the worst riots in U.S. history erupted in LA. By the end of the six-day rampage, millions were left to wonder whether such abuse could ever be reined in.

Three years later, President Bill Clinton signed a crime bill that included a little-known provision giving the Justice Department new power to investigate police departments for civil rights violations. When the department finds a pattern or practice of misconduct, it can compel reform through what’s known as a consent decree. In all, the government has opened 68 investigations, with varying results.

As head of the Justice Department’s Civil Rights Division, Vanita Gupta is the federal official in charge of such investigations. Since taking the job in October 2014 — two months after the police shooting of Michael Brown in Ferguson, Mo. — her office has opened probes into four departments, including in Baltimore and Chicago.

“The goal with these agreements is always to create a transformed culture around policing and also a transformed relationship between the police department and the community that it’s serving,” she told FRONTLINE. “Usually we’re going into police departments where there’s somewhat of a crisis between the police department and the community. The community doesn’t trust its officers … it’s rather maybe even at war with the police department and vice versa.”

In March, Gupta’s office signed a comprehensive agreement with the city of Newark, N.J. stemming from a 2011 investigation into allegations of civil rights violations, including excessive force, unwarranted stops and arrests and discriminatory policing. The day the agreement was signed, she spoke with FRONTLINE about how it would work, the challenges around reform, and why she says “there is no such thing as a perfect police department.” Here is an edited transcript of that conversation:

I’ll just start with the most basic question, which is that there are 17,000 or so police departments in this country, presumably many of them in need for reform. Why Newark?

Well, the Civil Rights Division always conducts our preliminary investigation based on publicly available information about a police department, and in Newark we have received a fairly lengthy letter from the ACLU New Jersey representing a lot of different points of view. We have received complaints from other community members about what was happening in Newark, and as we do with every police department where we get complaints, we reviewed it and determined that there was enough of a predicate to suspect that there might be a pattern or practice of unconstitutional policing, and we therefore decided to launch an investigation.

How do you measure whether these reforms are successful?

In every one of our agreements, we actually have outcome measures that determine over time whether the agreements that we’re putting in place are having the kind of impact that we want them to, whether it’s successful. So we have a monitor who is reporting to the court what information he or she has been gathering over time using the outcome measures as benchmarks, and those reports are then available to the public. The public can see them, the Justice Department can review them, and that is how we are actually able to measure whether the impact of these agreements is a positive one or not.

So give me an example.

Sure. Let’s say you’ve got a set of provisions dealing with use of force, so some of what will be required is we’ll have outcome measures about the kind of training, whether new training has been put in place. For example, to promote de-escalation of intense encounters, how many officers were trained? Was the training determined to be sufficient and adequate? …

Does compliance signify change in police culture, because a lot of [people] say that this is a cultural problem here?

I think that the Justice Department’s agreements are very comprehensive for that reason. There’s no way to go into a police department, we think, and address a widespread cultural problem without looking at use of force and training and supervision and accountability and community policing and the like. The goal with these agreements is always to create a transformed culture around policing and also a transformed relationship between the police department and the community that it’s serving.

Usually we’re going into police departments where there’s somewhat of a crisis between the police department and the community. The community doesn’t trust its officers; it’s not sharing information; it doesn’t feel like it’s being guarded; it’s rather maybe even at war with the police department and vice versa. The goal of an agreement really is to rebuild that over and across a whole set of systems and metrics over time, because we know that reform doesn’t happen overnight, and to re-create trust where that’s eroded and to really have a police department that protects public safety, better protects its officers, and allows for its citizens to feel guarded by its police department.

This is an expensive proposition.

It is expensive at times, but I guess it depends on how you calculate cost, because of course the cost of unconstitutional policing and of a complete breakdown in trust can be devastating to communities, and I think that we’re seeing that around the country. So yes, it requires an investment into ensuring that you’ve got constitutionally run police departments, but hopefully over the long run you’re also creating better avenues for crime fighting, where you’ve got a community that actually trusts that its officers are protecting the community.

They are hopefully saving in civil lawsuit settlements. There’s all kinds of ways in which I think the costs of not engaging in these reforms, where you do see these kinds of severe breakdowns and trust, there’s all kinds of ways in which the agreements, while they may cost a lot to set up systems and the like and to do the training, ultimately are a really important investment for communities around the country.

… What is the history of these decrees? Talk to me about how they came into existence.

In 1994, when Congress enacted the ’94 crime bill, a very large piece of legislation, there was a little, probably not very noticed provision, 14141, that gave the Civil Rights Division at the Justice Department the jurisdiction and the authority to investigate police departments for unconstitutional patterns or practices. That is what kind of launched the modern era of our work in that area, but before that, the Justice Department did not have the civil tool. We had criminal authority, but we did not have the civil tool to really address systemic deficiencies in the police department, and that legislation or that piece [that] was in the ’94 crime bill came about because of events in Los Angeles — the Rodney King incident, the riots that ensued in L.A. — and Congress thought it was important for the Justice Department to have a way to really address and engage systemic reform in police departments around the country.

How effective have these decrees been?

They’ve been really effective. The net result of our work in a police department does not result in a perfect police department. I don’t think there is such a thing as a perfect police department, but what they have done is really created transformed systems and accountability measures and training and really rebuilt relationships between communities and the police department all over the country, and we know that in part not just because I’m sitting here and saying it but because we have concrete outcome measures built into every one of our agreements in the last several years that really provide us with information.

“The cost of unconstitutional policing and of a complete breakdown in trust can be devastating to communities, and I think that we’re seeing that around the country.”

Information, it’s the data of the kind that we talked about — reductions in uses of force, greater training, whether the accountability systems are working, whether complaints are being followed through — but also we do community surveys on an annual basis to track whether the relationship between the community and its police department are evolving positively over time. And at any point in the life of a consent decree if we find that a particular reform that we thought was going to work when we negotiated the decree needs adjustment or needs to be revisited because our policing experts and others are finding that it isn’t quite having the impact, we can revisit those to make sure that they really have a successful outcome at the end.

How long are we talking about here in Newark before you would anticipate some changes here?

Well, Newark is a jurisdiction that right now is embracing reform. … Right now we’re probably looking at a five-year presence, but we’re not going to leave unless there is compliance after three years and sustained compliance for two years. The Justice Department requires that there be two years of sustained compliance once a jurisdiction has achieved compliance. We don’t want to be here for a day longer than we have to, but we also are not going to leave a jurisdiction until that is achieved. …

So you say that it’s required that there be two years of compliance. What exactly does that mean?

What we don’t want to have is being in a jurisdiction where there is an initial kind of surge of compliance with this agreement, and then we decide we leave, and suddenly everything backtracks. Institutional change, cultural change, the kind of systemic change that our consent decrees are really aimed at are ones that are going to transform culture over the long haul, and they are going to remain in place long after the Justice Department is gone. So that two-year period is really critical to ensuring that police departments have had sufficient, or I would say such transformed, culture change that they are going to continue down this path long after the Justice Department leaves.

FRONTLINE and The Washington Post did an investigation of consent decrees, and what they found is that in about half of them, uses of force by police actually went up after the consent decree was announced. Are there any kind of mechanisms to look at what happens if Newark doesn’t comply and there isn’t substantial change in the short term?

Just on that point, in a lot of jurisdictions where we announce one of these agreements, what we usually see is a surge in use of force complaints. Frankly, what that tells us is that people are beginning to believe that the system might actually work now that we have a consent decree in place, and we’ve been able to track that in a number of jurisdictions where we’ve seen surges initially in the use of force complaints and over time are able to see them die, go down. … We can go by the data that we have and the anecdotes that we have. Right now we’ve been in Seattle for a number of years, and the transformation that we’ve seen — and we can measure that through use of force statistics, through training, through the de-escalation policies that have been put in place — all of those things are telling us what has been working in Seattle and that there has really been a transformation between the police department and the community.

It’s a work in progress. It’s something that we have to absolutely monitor, and it is something — you know, once we leave, there’s a question of how long are these reforms sustained, and again, as I said, I think we’ve been able to see that in some police departments, they have been on the path; they’ve kept up all of their reforms. There are places where there has been some backsliding, but there the goal is that we’ve built in place community oversight mechanisms, a way for the community also to demand accountability on the part of a police department that may backslide after we leave. That’s kind of built in where — and oftentimes we’re going into communities where there has been insufficient ability for the community to hold its police department accountable, so the goal is that if a police department then starts to make mistakes or slide back that it can course-correct because of the systems that were put in place and that the community has a way to keep the police department accountable.

One of the things that we heard was that because the monitor is a paid position, there is a team of people that derive financial revenue from this process, it kind of gives them an incentive to not leave the city. Is there any mechanism to say that this will be a short-term process, and as soon as there is progress, people will be out of the city?

 Yeah. I will say a lot of the monitors work for nonprofit organizations, and the incentives are different, but there is a goal for the monitors to also be able to achieve their own success. They are sometimes entities that we may seek to work with on a regular basis, and if we have any reason to suspect that they are prolonging one of these agreements for their own profit, those are things that we are able to detect. …

One of the parts here is power over who gets fired, who gets hired and so on, and that’s an integral part of the culture. How does that connect with your authority and the consent decree? Do you have any authority here?

We don’t get in the middle of hiring and firing decisions, and I’ll say I push back a little on that question, because I think that a lot of what we see produce culture change is embedded in the systems in place to hold people that commit misconduct accountable — so to get the people who shouldn’t be in policing out; to promote people who are doing a great job and to recognizing that talent, but to build in systems that are going to be in place regardless of who the personnel is that’s coming in either at that rank-and-file level or at the command-staff level, and that the systems piece of this is critically important to producing culture change over time. Of course leadership matters, but we can’t get involved in who the number one person is at any given time and feel good about producing culture change that is so entirely dependent on a particular person.

The goal for us is to ensure that sustainable change happens through systemic reform and accountability and the systems that we put in place so that long after we’re gone, long after the chief turns over or a different class of officers are promoted, that the reforms have taken root within the systems that are in place in any police department.

When we talked with police in the city, one of the things that we heard consistently about complaints and internal affairs was that these are just people who were arrested, who were doing something wrong, and they’re just filing a complaint as a way of getting out of the criminal act that they actually were arrested for committing and really not a lot of acknowledgment that there might be a problem. I would think that would be kind of difficult to get beyond.

I will say that is not what I have heard, and we’ve been very engaged with rank-and-file officers with the police unions and with command staff throughout the course of the investigation and the negotiation. I think there’s a real recognition of serious problems within the police department that frankly have left police officers with fewer resources, less support, less training, less supervision, unfair accountability systems. We heard from police officers that were complaining about how they didn’t want to be subjected to informal quota systems, they didn’t sign up to become police officers to issue citations and tickets, and that the accountability systems were unfair; they were being inconsistently applied. They were identifying some of the real concerns that they were having about how they were being told to police and the lack of resources and training that they were given that frankly, at the end of the day, do police officers a great disservice and do the community a great disservice.

I actually think there’s a real appetite to engage. Now, is everyone onboard? No, I don’t think that; we wouldn’t expect that. But I do think that the goal is really to be able to begin a process by which the officers and command staff can see why this is going to be ultimately a really beneficial process for them to improve officer safety, public safety, and at the end of the day increase trust, because we obviously saw a great deficiency of that within our police department.

We’ve seen lots of efforts at reforming police for really decades now around similar sorts of issues, especially as it relates to race and disproportionate stops, and this has been a very entrenched problem. What makes you think that this is going to be any different?

I think a few things. One is just that even the Justice Department … has learned a lot about what works, what doesn’t work and the like. So I think having court enforceability is really important. You can’t get culture change with a process where you just kind of issue a report and hope that it does the work. This is a report that’s going to — it’s a very loud report. It’s a set of findings and a consent decree and an agreement that is going to be very actively monitored to ensure compliance.

“I don’t think there is such a thing as a perfect police department.”

But look, I also think that a lot of these issues that we are talking about that are around policing, around race, are issues that are kind of top of mind right now. In part because people have demanded that they be through mobilization, law enforcement is having a whole different set of conversations around these issues today than they were even two years ago, around what are community standards for use of force, how can we better meet those and the like. I think that there is also a backdrop of real criminal justice reform, real understanding, and a desire on the part of bipartisan officials, criminal justice actors and the like to say that we need to be smart in the way that we are engaging criminal justice systems, and policing is squarely a part of that. There’s a lot of different factors coming into play today that I think have really teed up this conversation for real transformation in how the people in this country expect their police officers to behave and what standards [police officers are] holding themselves up to as well.

What do people expect from their police department?

I think people in this country expect that police officers are going to enforce the law fairly and equally and as guardians of the community, but also that they’re going to follow the law and the constitution as they’re doing it.

Given the realities of the Newark police department in terms of the pay scale, in terms of the education level, in terms of the number of people who are on the force, is this a bigger set of problems than a consent decree can fix?

First of all, I will say if not a consent decree that is as comprehensive as this, then what fixes this? The reality is that these problems often seem very intractable at the outset, but the reality is that over time, through persistent work, through the enforcement of the agreement which is very comprehensive, which asks a lot of things, there is hope for change, and we’ve seen it happen around the country.

This is not just the Justice Department with a kind of dreamy-eyed look at the way of doing things. We have been in departments that appear to be entirely broken or the culture has appeared to be unfixable or just too deeply entrenched for generations. But our answer cannot be to walk away from that police department because we don’t think there are any ways to address these issues. We’ve seen in police departments over and over again, small and big, that even where there’s deeply entrenched discriminatory policing or problems with use of force or lack of accountability, that those are changeable over time.

But it is true that those things don’t usually happen without a lot of engagement and effort and resources and investment, but we have to do those, because I think police officers deserve it and communities deserve it. And without it I don’t think that we would have culture of laws.

There are 17,000 police departments in this country; there’s been 68 of these investigations. Is this just a drop in the bucket in terms of the size of the problem?

Every one of the agreements that we produce really should serve as blueprints for communities around the country. We’re not going to litigate ourselves to constitutional policing in every part of the country. We’re just not. We don’t have the resources nor would it be a good theory of change if we were all to be relying on that. The goal, though, is — and I think we’re seeing it today, especially with law enforcement leaders that are all over the country looking at our consent decrees — they’re looking at the president’s report on 21st-century policing; they are looking at best practices that are offered though various agencies and departments and trying to protectively engage in the kinds of reforms where they see challenges in their own departments. That ultimately is going to be how we can amplify the work that the Civil Rights Division has been doing around the country on these issues. We just can’t wait for, nor do I think police departments want to wait for, Justice Department intervention to be able to address a lot of the same challenges that they may be confronting.

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