The Hennepin County District Court must now decide if it will accept responsibility for enforcing the court-enforceable agreement with the city of Minneapolis to address race-based policing and strengthen public safety (aka the consent decree). The court should say: "Not yet."
The process that led to the agreement began after George Floyd was murdered. The state Department of Human Rights launched an investigation that resulted in a set of findings full of compelling facts and figures that demonstrated a "pattern of race discrimination" in the Minneapolis Police Department. Based on the findings, and on extensive input from both community members and police officers, the Department of Human Rights and the city then negotiated the agreement.
The agreement is over 100 pages and includes hundreds of requirements for changes in policy, practice, training and holding people accountable, along with a plan to hire an independent monitor to oversee compliance. It is intended to make "transformational changes" in the culture and practice of policing in Minneapolis.
While the title of the agreement says it aims to "address race-based policing and strengthen public safety" there is absolutely nothing in the agreement to tell us or the court how we will know if those outcomes are being achieved. The agreement seems to assume that if the city meets all of the hundreds of requirements that are listed, racial discrimination will be reduced or eliminated and public safety will be increased. It further seems to assume that those hundreds of requirements are all that are necessary.
Both assumptions will turn out to be wrong. But we cannot know how wrong until they are tested. The agreement includes dozens of requirements for collecting data but takes a pass on connecting that data to specific discrimination and safety outcomes.
Therefore, the court should require the parties to come back with specific measures that it can use to assess the city's progress in eliminating racial discrimination in policing and increasing public safety. It should also require the city and the Department of Human Rights to use those measures to decide which requirements are working, which aren't and which are missing.
Ultimately, the city should be accountable not just for doing what is required but for doing what works.
While the title says the agreement is "court enforceable" it never says how. Nowhere in the agreement can we find anything meaningful about the consequences for either success or failure. Requirements without consequences make them unenforceable.
To people and organizations consequences matter. Positive consequences are more powerful than negative consequences. Certainty is crucial to their effectiveness. And they are most effective when aligned with overarching goals and aspirations. The current agreement leaves the court with very few positive consequences that it can employ other than the eventual termination of the agreement — and similarly few negative consequences other than to pile on more requirements or extend the period of court supervision. The court is being asked to accept an enforcement responsibility without the effective means to fulfill it.
A more powerful design that links consequences, both positive and negative, to actual outcomes could involve something like this:
Create a $20 million police transformation fund with $10 million deposited by both the city and the state. (At that size the fund would be equivalent to about 10% of the Police Department budget.) The court would develop with the parties a schedule of rewards that would be paid or charges that would be assessed against the city based on its achievement of specific levels of racial discrimination in policing and public safety. The money awarded to the city would only be available for further investments in transforming the culture and performance of the police department. This or a similar design would give the court concrete, predictable consequences to use in furthering the purpose of the agreement.
Finally, the agreement completely cuts the court out of any role in selecting, directing, utilizing or evaluating the independent monitor. The monitor is intended to be an independent party that tracks the performance of the city in complying with the agreement. One would think that the monitor of a "court-enforceable" agreement would have a direct connection to the court. That is not that case. The monitor must play a critical role in informing the court of the performance of the parties and the effectiveness of the agreement. The court should make clear that it expects to play a key in determining who the monitor is and what the monitor does.
The agreement before the court has an awful lot to commend it. The city and the Department of Human Rights have obviously worked hard and courageously to get to this point. Now it is time for the court to enter the negotiations to ensure that any agreement that it signs on to enforce focuses on outcomes not just requirements, provides for effective consequences and assures that the court will have direct access to information on the performance of the parties. Only then will the agreement be a court-enforceable agreement with the city of Minneapolis to address race-based policing and strengthen public safety.
Peter Hutchinson is a former state commissioner of finance, former deputy in the Minneapolis Mayor's Office, and former superintendent of Minneapolis Public Schools.