The World of Consent Decrees: Essential Steps for Sheriffs Facing and Navigating These Agreements

This article was written for and published in the National Sheriff's Association's Sheriff & Deputy.

Consent decrees can significantly impact jail operations. Sheriffs and the offices they serve need to be familiar with the life cycle of these decrees to understand the associated risks and protect their rights when faced with being bound by an agreement.

This article offers insights and acts as a guide through the essential aspects of consent decrees over jails—from inception to potential termination—and provides steps to effectively operate when faced with one.

How consent decrees work and the laws behind them

Consent decrees are negotiated agreements between parties that are approved and entered by courts. Once entered by a court, these agreements become enforceable court orders. Think of them as part contract and part court-enforceable order. In jails, these decrees are used to address alleged violations of federal rights, including the Eighth Amendment’s prohibition against cruel and unusual punishment and the 14th Amendment’s due process rights.

Consent decrees typically include several standard groups of provisions.

• Parties and definitions: Identifies the involved parties and defines key terms.
• Substantive provisions: Outlines the specific actions and changes required.
• Structural provisions: Details compliance, reporting, and monitoring requirements.
• Jurisdiction and enforcement: Establishes the court’s authority to enforce the decree.
• Construction, termination, and stipulation guidelines: Provides rules for interpreting the decree and the conditions for its satisfaction.

The Prison Litigation Reform Act (PLRA) governs forward-looking or prospective relief related to jail and prison conditions. Because consent decrees related to jails typically impose prospective relief, they are governed by the PLRA. The PLRA requires that before a court can enter a consent decree, then, it must make the requisite findings:

1. The decree is narrowly drawn.
2. The decree extends no further than necessary to correct the violation of a federal right.
3. The decree is the least intrusive means necessary to correct that violation.

The relief measured in the decree must pass this test before the court will approve it.

Before you enter a consent decree

You might feel overwhelmed by the threat of lawsuits related to alleged systemic conditions at your facilities. These can be costly, time-consuming, and often result in negative publicity for the agency. As a result, you might feel you need to settle through a consent decree. Although beyond the scope of this article, it is important that you understand that other forms of agreements, such as private settlement agreements, can be used to resolve threatened or active lawsuits.

Sheriffs typically view the consent decree as a way of ending high-profile lawsuits, reducing the stress and expense of long-term litigation, and offering the possibility of negotiating favorable terms. Sheriffs also may believe that the court’s involvement will help all parties manage the terms of the agreement fairly.

But it is important to remember that there is a disparity in bargaining power between sheriffs and advocacy groups or the DOJ’s Civil Rights Division. This disparity can lead to sheriffs accepting terms that impose significant costs and responsibilities on facilities that are already facing financial and resource challenges. These costs may ultimately be passed on to local residents, which highlights the importance of actively engaging in the negotiating and drafting process.

Negotiating a consent decree can present its own set of challenges. The process can be costly and is often driven by federal officials or advocacy lawyers, who may not have much insight into the local issues you face at your jail. This could lead to the imposition of terms that will increase operational challenges and costs in the long run. Any ambiguous language in the decree could cause problems down the line as the parties to the decree interpret its terms differently. It may not be a win-win situation, but having experienced counsel can make all the difference in evaluating whether proposed terms are feasible and practical for your jail staff.

For example, counsel can help you consider various issues before entering a consent decree. You should consider a cost-benefit analysis related to decree terms, the jail’s mission, your budget and resources, and you should carefully evaluate the impact of structural terms. It is critical to make sure the terms align with your jail’s goals and responsibilities—and that they can be practically achieved—before signing on the dotted line.

Other factors you should consider include:

• Is compliance with the proposed terms possible? Get input from staff who operate the jail day in and day out.
• How much will it cost to comply with the terms? Structural terms often require things like compliance, reporting, and monitoring, and regular inspections. These can quickly drive up the costs of compliance and make it difficult to resolve consent decrees.
• Is a sunset provision included? Consent decrees don’t often include this provision. Consider if there are factors that might make it possible to have one included.
• Who has the right to select monitors? Monitors play a significant role in overseeing compliance. As to multimonitor teams, you should negotiate the right to select at least one of the monitors.

What if your jail is already under a consent decree?

Make sure staff members are up to speed with the decree. Jail leadership should understand the decree’s terms and the monitor’s role and explain these to operational and administrative staff.

• Document efforts and meet deadlines. Assign trusted staff to oversee compliance and give them the tools to do this successfully. Managers and supervisors should thoroughly document all compliance efforts and actions taken to address recommendations. Consistent documentation can be crucial when seeking to terminate the decree.
• Continue duties. Update policies and procedures as required by the decree and ensure the jail stays clean, in order, and as well-staffed as possible. Line staff should continue to perform their duties diligently and be prepared for interactions with monitors.
• Prepare for inspections. Monitors act as the court’s eyes and ears to track progress on meeting the consent decree’s terms. Assign staff to monitor inspectors and take detailed notes. It’s a good idea to have counsel present to provide legal protection and learn about the monitor’s operational philosophy and approach. Although it is easier said than done, try not to allow inspections to disrupt day-to-day operations to keep things moving for the inmate population.
• Review compliance reports. Take seriously any legitimate issues identified by the monitoring team. Make and document efforts to address those issues, regardless of whether those efforts are ultimately successful. Find any inaccuracies and consider submitting a response to compliance reports so there is a record.
• Consider recommendations. Monitors will make recommendations, but jail leadership should balance these with their judgment and institutional knowledge to evaluate the feasibility and cost to implement them. Supervisors and other staff should then work together to carry out recommendations that will turn the tide operationally.
• Plan for increased costs. Compliance costs typically depend on the extent of the consent decree. This could include facility upgrades, staffing and salary increases, or additional equipment and supplies. Agencies must also pay for monitors and additional consultants as needed, as well as their own experts and legal fees. You, your jail leadership, and counsel should make policymakers aware of the costs imposed by the decree and the budget you need to comply with it.

Ending the consent decree

Broadly speaking, there are two options to resolve a consent decree: full compliance or termination.

If full compliance is attainable, you need to consider the cost and time it will take to reach it. Full compliance can be difficult to achieve. The decree’s requirements can be a barrier if not negotiated and drafted with help of experienced counsel. And for sheriffs, a change in government officials and political priorities can pose challenges.

Monitors can also have a direct impact on a jail’s compliance goals. They may hold your jail to a high standard in line with best practices. While these practices are well-intentioned and can be important to strive for under certain circumstances, they can exceed what is required by the Constitution and thereby make it difficult to meet changing expectations and to keep up with costs as the decree extends over time.

In some cases, both the parties enforcing a decree and the sheriff who is subject to one have questioned if the focus on best practices added expense and effort that made it harder to achieve the central goal—fixing constitutional violations.

One federal court scaled back a consent decree after a public agency spent nearly 10 years operating under its terms. The court found that in trying to meet the monitors’ goals, including by hiring a full-time clinical psychologist, the facility “failed to reach substantial compliance on core constitutional violations.” The court emphasized that while best practices are ideal, these go above and beyond the constitutional requirements that hold the consent decree in place under the PLRA.

The PLRA also offers a path toward ending the consent decree. You can file a motion for termination under the PLRA two years after entering the decree, seeking either full termination or partial termination to change the decree’s terms. If the motion is denied, you can file a new motion one year after the date of any order denying a motion to terminate.

The PLRA standard is not the same as the consent decree. To prevent termination, it requires showing that the decree is still necessary to correct a current and ongoing violation of a federal right, that the relief extends no further than necessary to correct it, and that the decree’s terms are narrowly drawn and the least intrusive means to correct it.

Filing a motion triggers an automatic stay of the consent decree after 30 days, although the court can postpone the stay for up to 60 more days. If the stay goes into effect, it halts enforcement of the consent decree until the court rules on the motion. The party seeking to keep the decree in place will be able to respond, and the court will likely hold an evidentiary hearing before issuing an order to keep or terminate the consent decree. Parties can then appeal the decision.

Quick tips for navigating consent decrees

• Engage experienced legal counsel early in the process.
• Conduct a thorough cost-benefit analysis before entering a consent decree.
• Thoroughly document compliance efforts, whether or not they are successful.
• Proactively question and address monitors’ recommendations.
• Consider seeking relief through the PLRA if full compliance is unattainable.

Navigating a consent decree requires careful planning, thorough documentation, and experienced, strategic legal support. By knowing the process and taking proactive steps, public safety officials can work toward achieving compliance while protecting their facility’s interests and mission.

A former federal prosecutor and defense counsel, Candace Gregory has managed hundreds of government investigations on behalf of both federal agencies and Fortune 500 companies. She has investigated jail and prison operations and worked with municipalities to enforce consent decrees. She received a commendation from the DOJ Civil Rights Division for her work in these cases.

Nick Morisani manages civil rights litigation and investigations involving jail and prison operations and has extensive experience helping facilities resolve consent decrees. He guides state prison management and local detention facility operators through federal inquiries and high-profile cases challenging confinement conditions and security operations.  

They are partners at Phelps Dunbar, a law firm in Jackson, Mississippi, with extensive experience in negotiating and managing all aspects of consent decrees.