Important literature has advocated for democratizing police departments. This Article furthers that conversation. Part I describes two theories influencing my arguments. The first is legitimacy theory, which aligns with the DOJ’s desire to build broad consensus toward the reforms outlined in consent decrees and serves as a useful tool for inclusivity and transparency. These are core values of democratic deliberation and democracy building. Second, Part I examines Chantel Mouffe and Ernesto Laclau’s theory of agonism as a way to analyze and understand what has occurred with community engagement practices. This concept offers a respectful, yet contentious, approach to analyzing institutions of power. It positions dissenting adversaries as adding normative value in a meaningful democratic process, allowing us to question and appreciate the outsider and contentious insider as part of democratizing community engagement. Rather than viewing the various methods of police reform as consensus building, legitimizing, or transparency mechanisms, I suggest community engagement elevates the role of stakeholders and affected individuals through a contested process. In some circumstances this contestation creates the potential for a shift in power between communities and the police. Litigators and courts can look beyond participatory and deliberative democratic principles to give particular importance to the experiences and expertise of communities targeted by police. Part I suggests that marginalized communities and community stakeholders should have a direct role in the consent decree monitoring process and provides the normative argument for why community participation and power shifting matter to those harmed by police practices, courts, and the public at large.
The inclusion of community engagement in the DOJ’s consent decrees should be understood as part of an important set of changes to earlier police-reform attempts by the DOJ. Part II describes the history of DOJ-initiated police reform. One of the earliest criticisms of police-reform consent decrees was the lack of community involvement in the reform process. The DOJ and 42 U.S.C. § 14141 were not designed to support grassroots efforts for police reform because they are limited by the needs of law enforcement and the DOJ’s need to protect its relationship with law enforcement. Part II also summarizes prior research on DOJ policing consent decrees to place this Article’s contribution in context. The history and prior scholarship illuminate how community engagement is an interruption in our understanding of the limited role that directly affected persons can play in a DOJ-initiated reform process.
Part III surveys community engagement following consent decrees signed by the DOJ and Portland, Oregon; New Orleans, Louisiana; Seattle, Washington; Albuquerque, New Mexico; Cleveland, Ohio; Ferguson, Missouri; and Puerto Rico. This study will inform the existing reform processes, the ones in formation, and future consent decree negotiations. Notably, a distinct pattern has emerged in many of the examined jurisdictions: the community engagement body responsible for voicing the views of community members has felt inadequately represented by the DOJ. In several cities, courts denied community groups’ attempts to intervene as official parties. Such rejection always rests upon the DOJ’s view that the community engagement entities or advocacy groups do not have a separate, protectable interest beyond that of the government’s. This Article questions that view, arguing that for the consent decree negotiations and implementation to be truly democratic, they must provide a meaningful role for community members, despite these members’ diverse political and social viewpoints.
Although community engagement, with little exception, has largely fallen short of advocates’ and harmed communities’ expectations for reform, this Article allows parties, advocates, and courts to consider better models for community participation in the DOJ consent decrees by documenting the possibilities and limitations of community engagement as a power-shifting tool. Such observations may be applicable to remedial phases of private litigation against police departments and in other areas of civil rights. Part IV begins the work of finding solutions and offers initial proposals to improve community engagement, but from the framework of meaningful democratic participation instead of legitimization and consensus-based processes. Part IV considers how community engagement in particular can be wielded carefully to advance the interests of individuals affected by discriminatory police practices and support reformers seeking to shift power in the relationships between the police and the policed. I offer values-based, structural, measurement, and procedural suggestions for improving community engagement. This Part also illustrates challenges and limitations for community engagement within the agonism and legitimacy frameworks.
