Madigan sued the city of Chicago in federal court seven months after the U.S. Department of Justice released a report outlining a pattern and practice of unconstitutional policing. It was one of the department's final acts under the Obama Administration, coming just days before Donald Trump took the oath of office and as the Senate was considering the confirmation of Jeff Sessions as Trump's attorney general.
Had the report been completed just a month or two earlier, the next steps would likely have been a Justice Department lawsuit, a consent decree, a court-appointed monitor and a comprehensive program of retraining and reform to overhaul police practices, much like Los Angeles' Rampart decree in 2001 and the 20 or so police reform agreements initiated by Obama's Justice Department.
But when Sessions took over he quickly laid out a very different view of improper police conduct: It is not systemic or structural but limited to a few bad actors. Sessions criticized consent decrees as bad for police morale and as unwarranted federal intrusions into local matters. It became evident that the department, under Sessions, would not follow up its Chicago investigation with a lawsuit.
That stance on police reform goes hand-in-hand with other Sessions policies and pronouncements, such as his move Monday to reinstate transfer of grenade launchers, tanks and other surplus military equipment to police agencies, and his instruction to federal prosecutors to seek the maximum possible sentences, as in the days of the discredited War on Drugs.
In an editorial earlier this year, The Times lamented that a full Justice Department retreat on police reform would leave no one else able to fill that very crucial role. Madigan's action, however, shows that not to be the case. Following the roadmap laid out by her federal counterparts in the pre-Sessions era, she is seeking the same set of remedies that they pursued in federal court.
It is not clear how many other state attorneys general can follow Madigan's lead if they are not armed with federal investigations of the kind completed under Sessions' predecessor, Loretta Lynch. But California law allows the state attorney general to do consent-decree-type police interventions based on state, rather than federal, laws.
A.G.s here have exercised that power sparingly. Bill Lockyer brought an action against the Riverside Police Department in 2001, as did Jerry Brown against the Maywood Police Department in 2009 and Kamala Harris, shortly before taking her seat in the U.S. Senate, against the Bakersfield Police Department and the Kern County Sheriff's Department late last year.
So far, other states have been hesitant to grant their attorneys general similar authority. Attorneys general and district attorneys are elected officials as well as lawyers and have seldom tested the sensitive politics of police reform. They are also prosecutors. Part of the argument in favor of U.S. Justice Department intervention against local police agencies was that A.G.s and D.A.s were too sensitive to voters, who were politically and demographically more apt to back tough policing and sentencing than to protect the rights of accused or suspected criminals.
But in cities, counties and states around the nation, that template is being challenged. The same day that Trump won the White House, voters elected prosecutors and sheriffs who vowed to crack down on police abuse and sentencing excesses as well as crime.
In Cook County — the jurisdiction that includes Chicago — voters ousted tough-on-crime state's attorney Anita Alvarez in favor of Kim Foxx, who stopped charging low-level shoplifting cases as felonies. In Houston, Harris County Sheriff Ed Gonzalez joined a lawsuit against the county by plaintiffs challenging the cash bail system as a violation of the constitutional rights of poor defendants. Harris County District Attorney Kim Ogg also criticized the bail system and in effect decriminalized marijuana by ordering her deputies not to bother prosecuting simple possession cases — this at a time when Sessions is calling for more vigorous marijuana enforcement and other moves that herald a return to the disastrous drug enforcement policies of the 1980s.
As a candidate, Denver's new district attorney, Beth McCann, vowed to put her office in the vanguard of criminal justice reform and supported repeal of the death penalty. Aramis Ayala, the new state's attorney for the Florida district that includes Orlando, vowed to no longer seek the death penalty — and then sued Gov. Rick Scott when he removed her from death penalty cases.
Los Angeles City Attorney Mike Feuer joined with other state and local prosecutors in a letter criticizing Sessions for his directive to seek the most severe penalties possible.
These officials identify something essential that Sessions misses: Prosecutors and law enforcement officers are granted a significant measure of discretion that they must exercise to promote both public safety and justice. A no-tolerance approach to less-serious crimes quickly leads to overburdened and misused prisons and jails, as well as patterns of excessive police force.
The uprising among local prosecutors is not a matter of blue state versus red state politicians, or conservatives versus liberals. In Wisconsin, Winnebago County's Republican District Attorney Christian Gossett allowed people accused of low-level crimes to be immediately released without bail by waiving his prosecutors' court appearances.
Some of the most thoughtful criminal justice reforms come from within the conservative movement, which is involved in a philosophical civil war of sorts between its libertarian and law-and-order factions. A bill in the U.S. Senate to offer states some modest assistance in moving from cash bail toward a risk-based pretrial release system was co-authored by Harris, a Democrat, and Republican Rand Paul of Kentucky. Paul's conservative home state is one of the nation's leaders in bail reform, and Paul is an outspoken critic of excessive law enforcement intrusion onto the affairs of private citizens.
As Sessions and Trump continue their get-tougher approach to criminal justice, it is important to recognize and support the state and local officials, Democrats and Republicans alike, who stick out their political necks in the service of a smarter, better, more just, more cost-effective and more public-safety-oriented approach to policing and criminal justice. In California, it's important to let our attorney general, our sheriffs and our district attorneys know that we expect them to meet and exceed the standards for justice that are being set elsewhere around the country.