Jeff Sessions made a last-minute change — and it could limit SLO County Jail reforms

On his way out the door, U.S. Attorney General Jeff Sessions issued a policy memo changing how the U.S. Department of Justice oversees reforms at police departments and prisons with histories of civil rights abuses.

Civil rights advocates say last-minute policy changes could have implications for how reforms are enforced at the San Luis Obispo County Jail, where 13 inmates have died over the past six years.

On. Nov. 7, San Luis Obispo County officials announced that the Department of Justice’s civil rights division will be opening an investigation to examine how the county provides mental and physical healthcare to inmates at the jail.

The news comes as the county continues to be hit by repeated wrongful death lawsuits and other claims for damages from former inmates and family members of inmates who have died in custody.

Though the FBI continues to investigate the jail — it has been formally doing so since May — San Luis Obispo County Counsel Rita Neal previously said that investigation is directly related to the death of Atascadero resident Andrew Holland, who died in January 2017 after being left in a restraint chair for roughly 46 hours.

The county paid a $5 million settlement to the Holland family in July 2017.

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The U.S. Department of Justice would not confirm Tuesday whether it is investigating the county. The federal agency also declined to comment on the Sessions memo.

Civil rights advocacy groups contacted by The Tribune say the new changes may impede the justice department’s ability to look into alleged abuses in San Luis Obispo County, and said they can tie the agency’s hands in enforcing compliance.

“Former AG Jeff Sessions’s memo ... can absolutely constrain what the Justice Department is able to do to resolve the allegations and issues in San Luis Obispo County,” Kristen Clarke, president and executive director of the Washington D.C.-based nonprofit Lawyers’ Committee for Civil Rights Under Law, wrote in an email Tuesday.

’Sensitive federalism concerns’

While the FBI’s San Luis Obispo County investigation could result in criminal charges related to Holland’s death, Neal previously said she was assured by a U.S. Department of Justice agent that the agency will take a systematic approach to reviewing how treatment is administered to inmates and make recommendations for changes to meet federal civil rights standards, if necessary.

Following an investigation, the justice department may seek courts to issue a consent decree — a negotiated agreement enforced through a motion of contempt of court — or a settlement agreement, an out-of-court resolution requiring certain action and enforceable by a federal lawsuit.

To ensure those improvements are made, the justice department will often contract monitors to oversee progress, according to the agency.

Such court-ordered consent decrees and settlement agreements are not an uncommon result of justice department investigations into jails, prisons, detention centers and police and sheriff’s departments with ongoing civil rights issues. The justice department website lists 36 jails, prisons, and detention facilities in the nation that have undergone such reviews since 2000, and annual reports to Congress describe those efforts.

In his Nov. 7 memorandum, Sessions wrote that while consent decrees are “sometimes necessary and appropriate” to secure compliance with federal law, placing wide-ranging and long-term, court-ordered requirements on governments are “extraordinary remedies” that “raise sensitive federalism concerns.”

“This supervision can deprive the elected representatives of the people of the affected jurisdiction of control of their government,” he wrote.

Specifically, the Sessions memo created requirements for determining whether a consent decree or court agreement is appropriate in cases of civil rights violations, and offered further direction to limit the federal government’s role in enforcing those measures.

For example, the memo says that for a consent decree to be pursued, a jurisdiction should have a history of reluctance to cooperate with reforms, have unlawfully attempted to obstruct efforts or engaged in a pattern of deprivation of rights.

If a consent decree is deemed appropriate, the memo says, the duration for the agreement should generally last no more than three years and should contain measurable actions that trigger the decree’s termination.

The scope of the decree should also be “narrowly tailored,” the memo reads, and duties should be returned to the institution “as soon as the injuries caused by the legal violations alleged have been remedied.”

Before any consent decree is pursued, however, U.S. Department of Justice agents are required to obtain approval from the deputy attorney general or associate attorney general.

In an email to The Tribune on Tuesday, Lynda Garcia, policing campaign director for the Washington D.C.-based Leadership Conference on Civil and Human Rights, wrote that Sessions’ last move echoed one of his first.

In April 2017, Sessions weighed in on the justice department’s consent decree with the Baltimore Police Department following the 2015 death of Freddie Gray, ordering a sweeping review of all existing consent decrees.

“The Trump administration lacks appreciation for the import of the work that the Justice Department does in protecting and vindicating people’s civil rights when police departments systemically violate constitutional rights,” Garcia wrote in her email. “It also reveals an outright disregard for the federal government’s responsibility to ensure constitutional policing, which was the genesis for the statute that gives the Department of Justice the authority to investigate patterns or practices of misconduct in law enforcement agencies.”

Garcia wrote that police departments and local governments won’t make meaningful changes if they know the federal government “will be out of their hair in a short period of time.”

“The new memo ushers in an era in which police departments can operate without threat of federal oversight, and with a complete disregard for the communities that suffer from unfair police practices,” Garcia wrote.

After reviewing Tribune coverage of the San Luis Obispo County Jail, Kristen Clarke, the Lawyers’ Committee for Civil Rights Under Law president, said the justice department can still investigate the jail but may lack the ability to intervene if there’s no progress.

“The number of deaths in the county’s jails is truly astounding and a strong signal of the need for systemic reform and meaningful oversight,” Clarke wrote. “By making it harder to negotiate resolutions to these kind of issues that remain pervasive across our criminal justice system, Sessions’ memo literally may lead to additional deaths and/or assaults.”

County officials and the local grand jury agree that there were systematic failures that led to Holland’s death and the county says it is implementing changes at the jail, such as limiting the time inmates can remain in isolation and adding a chief medical officer in the jail to make emergency on-site medical decisions.

The county has budgeted some $2.3 million to expand mental health services, and is currently reviewing private contractors to provide mental and medical healthcare at the jail.

Matt Fountain: 781-7909, @mattfountain1
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