Undercurrents: The Almighty Consent Decree Holds Feet to the Fire

A regular Source feature, Undercurrents explores issues, ideas and events as they develop beneath the surface in the Virgin Islands community.

Given the frequency of references in local media, it may seem like the territory is operating under a new kind of system: Government by Consent Decree. Every week or so there’s another account updating the public about the progress of the territory’s compliance with one or another “consent decree.”

There are decrees imposed on the territory’s prison system, its police, its mental health system and much of its environmental infrastructure. Some of these have been in effect for several years, some for decades.

This is not a fourth branch of government. It’s a legal device that appears to be getting more and more use, primarily by the federal government, but also by community groups and individuals.

At bottom, it’s an agreement between two parties in a lawsuit – or sometimes, an agreement in lieu of a suit – under which one party agrees to remedy a problem for which it has responsibility. The two sides agree on the steps to be taken and the court oversees implementation.

Long used in antitrust cases, the consent decree is increasingly popular for protecting civil rights and Constitutional guarantees as they are provided for by state or municipal governmental entities.

U.S. Justice Department spokesman Wyn Hornbuckle said, “The department has concluded consent decrees with governments across the country on a number of issues meant to protect vulnerable populations and the environment.”

He was unable to say how the number of decrees in the Virgin Islands compares with the numbers in other jurisdictions.

V.I. Attorney General Vincent Frazer, whose office represents the various entities of the local government operating under decrees, provided the Source with a list of the active decrees, including the parties involved, the date of the original case and the general purpose of the action:

• U.S. v. Territory, case filed in 1986 – Protecting the constitutional rights of prisoners at Golden Grove Adult Correctional and Detention Facility;

• U.S. v. Territory and VI Police, case filed 2008 – Address practices of excessive force in the Virgin Island Police Department;

• U.S. v. Territory, filed 2009, Tutu Wellfield Superfund Site and the release or threatened release of hazardous substances;

• U.S. v. Territory, Port Authority, Waste Management Authority and individuals involved in providing service, filed 2010 – Landfills: Two separate Consent Decrees filed for this case: Bovoni landfill in St. Thomas and Anguilla landfill in St. Croix;

• U.S. v. Territory (Waste Management Authority), filed 1984 – Virgin Islands in violation of Clean Water Act at wastewater treatment plants;

• U.S. v. V.I. Joint Boards of Elections, the two districts boards and the supervisor of Elections, filed in 2012 – Violations of Uniformed and Overseas Citizens Absentee Voting Act;

• U.S. v. V.I. Water and Power Authority, filed 2013 – Violation of Clean Air Act;

• Virgin Islands Alliance for Mental Health Consumers/Survivors, Inc., Ten Thousand Helpers of St. Croix, Virgin Islands Alliance for the Mentally Ill, Inc., Hildred Simmonds, and Others Similarly Situated v. Government of the Virgin Islands, the Governor, Department of Health and its commissioner, Division of Mental Health and its director, both public hospitals and their executive officers, filed 2003 – Class Action to improve Mental Health services;

• V.I. individuals v. Governor and Bureau of Corrections officials, filed 1994 – Remedy any conditions and operations at the Criminal Justice Center and the Alva Swan Annex that do not meet constitutional standards;

For most of the decrees, the penalties/monetary obligations were listed as “None.” However, the violations of the Clean Water Act include hefty fines imposed for five different years or series of years from 1996 onward, and totaling over $3.1 million.

In general, Frazer downplayed the administrative costs of consent decrees. “The greatest impact is on the departments,” he said. “Our role is simply to advocate for the departments in court.”

Advocacy attorney Archie Jennings, who played a key role in the Bureau of Corrections and mental health class action cases, sees the consent decree as a way to implement institutional change.

Governments are slow to act and government leaders change every few years, he noted. Problems that involve civil rights, such as humane treatment for people who are incarcerated and health care for the mentally disabled “need a long-term response.”

Consent decrees “sort of get the parties together at the table” to work out a solution, he said. “I think there is value to them.”

So does the U.S. Justice Department.

Over the years, it has formed many hundreds of consent decrees covering a multitude of issues with various local entities across the country, according to its website.

Since 2009, Hornbuckle said, the department has initiated a record number of inquiries into police departments to ensure constitutional police practices. It has opened 15 investigations of state and local law enforcement agencies, including police departments in New Orleans, Seattle, Portland and Puerto Rico.

Since 1994, when Congress passed the Violent Crime Control and Law Enforcement Act authorizing the U.S. government to bring actions against state and local law enforcement for “a pattern or practice” of violating civil rights – including by using excessive force – the U.S. Attorney’s Office has reached agreements with law enforcement entities in 30 different jurisdictions.

On the environmental side, under the 1972 Clean Water Act, the department has made agreements with 50 municipalities to upgrade water and sanitary systems, Hornbuckle said.

As an example, a settlement with the city of Chattanooga, Tennessee, calls for a civil penalty of $476,400 and improvements costing $250 million. A similar settlement in St. Louis will cost the city $4.7 billion over the course of 23 years, he said.

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