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Consent Decrees – a Moving Target

Author: Mariann Mckee, Chief Clinical Officer, Healthworks Analytics

A consent decree, established to ensure civil rights are not violated, often times feels like a moving target. Court ordered performance milestones are often times left at the discretion of the court-appointed monitor to interpret. That discretion brings into play a degree of subjectivity that is often times impossible to get past. In the instance of The New Orleans Police Department, who has been under consent decree for 10 years, “court filing also accused the federal monitors of moving the goalposts on compliance with the decree’s 492 specific provisions, saying, “That subjectivity has added years to the process and exhausted the City’s resources.”[i] The tracking and enforcing of492 variables in and of itself is daunting. The thought of those measures being a moving target, at the discretion of the monitor significantly decreases the likelihood of a timely departure from a consent decree. In Jackson Mississippi, a jail consent decree has been in place for over 5 years. In 2022, when it went back to court, it was argued by Attorney James Chelson, the decree “is impossibly overbroad” and has “too many gaps” that give monitors too much saying determining whether the jail is in compliance.”[ii]

One particular area that is overbroad, is the idea of substantial compliance. The terms substantial compliance is often used but more often ill defined. When there are no defined metrics that measure substantial compliance or data is not gathered, collated, or presented in a manner that proves substantial compliance, the possibility of an entity with limited resources getting out from under the controls of a consent decree become bleak.

Data reporting, especially when there can be apperception of moving the goalposts, is more than just an annoyance sin a department – it can take a severe toll on morale and retention, contributing to the staffing crisis experienced by agencies around the country. To help mitigate the effects of the enhanced data collection and analysis, chiefs and agency leaders must be intentional in their methodology and policies.[iii]

This methodology starts with the generalities of substantial compliance being defined by concrete, measurable goals. From there, a mechanism for collecting the data and acting on the data, must be implemented. Without defined metrics and defined data gathering processes, it will continue to be impossible to limit the financial and emotional toll that is brought on by the moving target of consent decree.

[i] Daley, K, (2022) Federal judge gives
no indication she is close to terminating
NOPD consent decree. Fox8 Local First

[ii] Waren, A (2022) Feds say lifting a consent
decree a guarantee of disaster, WLBT3on your side

[iii] Frankel, N (2022) Its all about the Data:
Reflections on Managing Consent Decrees