This leaflet is updated regularly to take into account new political developments. It was last updated on July 8, 2021. Click here for more fact sheets in this series.
On April 21, 2021, the day after a jury in Minneapolis convicted former police officer Derek Chauvin of the murder of George Floyd, US Attorney General Merrick Garland announced that the US Department of Justice (DOJ) had opened an investigation into the city of Minneapolis and the Minneapolis Police Department (MPD). The civil investigation will assess whether the MPD has a sample or practice of unconstitutional or unlawful policing, which is the first sample or practice investigation under the Biden government. Less than a week later, Garland announced a second investigation, this time against the Louisville / Jefferson County subway government and the Louisville Metro Police Department, whose officers shot Breonna Taylor in her home while executing a no-knock search warrant.
As the DOJ increases its use of sample-or-practice investigations under the Biden administration, here’s what you need to know about this important tool for police reform and accountability.
What are pattern-or-practice studies?
In 1994, following a finding by an independent commission linking Rodney King to an institutional failure in the Los Angeles Police Department, Congress authorized the attorney general to investigate law enforcement agencies for “a pattern or practice that deprives persons of rights.” , Privilege or immunities secured or protected by the constitution or law of the United States. ”These investigations, commonly referred to as pattern-or-practice investigations, focus on widespread or systemic misconduct – as opposed to isolated ones or sporadic cases of misconduct – which may include routine use of excessive force; repeated stops, searches, or arrests that are inappropriate; and discrimination based on race, ethnicity, national origin, religion, disability, or gender. As such, pattern-or-practice investigations differ from the DOJ’s prosecution of individual law enforcement officers, who focus on specific cases of police misconduct.
How do pattern-or-practice studies work?
The DOJ’s Civil Rights Division first identifies potential subjects of investigation by examining publicly available information, allegations made by witnesses and complainants, and its own research into common or evolving problems in law enforcement across the country. If the department decides to open an investigation, the Specialized Litigation Department immediately engages a variety of stakeholders in the jurisdiction, including community members and victims of police misconduct, officials of all ranks, police unions and affinity groups, and local government leaders. And while no two studies are alike, almost all of them involve reviewing written policies and systems of accountability, observing the training and activities of officials, and analyzing data on relevant incidents.
At the end of the investigation, the department publishes its results in a public report or letter. If the law enforcement agency is found to have engaged in unconstitutional or unlawful policing, the department can negotiate a package of reforms with the police to address the systemic errors identified in the investigation. A federal court signs the legally binding agreement known as the consent decree and often appoints an independent oversight team to oversee the implementation of the prescribed reforms. Alternatively, the DOJ can offer reform recommendations that are not legally binding in a letter for technical assistance or negotiate a Memorandum of Agreement – a legally enforceable contract that is similar to a consent decree but does not require ongoing supervision. If no agreement can be reached, the department can try to push through the reforms in a civil process.
How have states used pattern-or-practice research?
Building on this federal model, a number of states have legally empowered their attorneys general to conduct their own sample-or-practice investigations. California was the first to do this in 2000, prompting then Attorney General Bill Lockyer to seek a declaration of consent with the Riverside Police Department a year later. In the wake of the 2020 National Police Violence Protests, Colorado, Virginia and Nevada passed similar laws to combat systemic police misconduct. With this newfound authority, Colorado’s Attorney General Phil Weiser opened a sample-or-practice investigation against the Aurora Police Department following the death of Elijah McClain. Similarly, Virginia Attorney General Mark Herring announced that he was investigating patterns or practices of wrongdoing within the Windsor Police Department after officers sprayed pepper spray on a black U.S. Army medic in uniform while he was stopped during a traffic stop held at gunpoint.
What are some common misconceptions about pattern-or-practice exams?
Critics of pattern-or-practice studies argue that the resulting police reform agreements tie the hands of police officers and thus undermine public safety. But research suggests the opposite. For example, a Harvard Kennedy School study found that Los Angeles saw lower crime rates and higher quality enforcement activities after law enforcement agencies issued a consent form.
While some opponents cite data showing an increase in crime in certain jurisdictions immediately after reform agreements were signed, these increases were temporary and decreased over time. In fact, the Center for American Progress found that all 10 jurisdictions it analyzed that complied with a reform treaty saw violent crime decline in subsequent years. Additionally, a University of Pennsylvania research found that the use of consent decrees – in conjunction with court-ordered surveillance – was linked to a 29 percent reduction in officer deaths.
Kenny Lo is a former research fellow on Criminal Justice Reform at the Center for American Progress.