Resource: Rethinking Consent Decrees: How Federal-Court Decrees in Child Welfare Can Harm Those They Are Supposed to Help and Upset the Federal-State Balance

By: John Bursch & Maura Corrigan

June 1, 2016

American Enterprise Institute

This report examines the efficacy of consent decrees as a tool for reforming government, with a special focus on decrees governing child-welfare agencies, a subset of consent decrees that has been a growth industry and serves as a straightforward example of a broader problem. The report concludes that consent decrees often fall short of expectations for numerous reasons. First, because of the court's ongoing supervision and the parties' lack of incentive to change the status quo, a consent decree can take on a life of its own, often outlasting its original signatories for years or even decades. Second, consent decrees require substantial government expenditures--monies that no matter how well spent, might be directed to other, higher public priorities if allocated as part of the ordinary legislative process. Third, consent decrees leave governmental officials with little recourse but to follow the plaintiffs' attorneys' road map for reform, no matter the efficacy or efficiency. Finally, consent decrees can harm the very beneficiaries they are supposed to help by creating barriers to adopting new service approaches and by instituting priorities that may be at odds with the best interests of a specific child. A consent decree that locks in a certain type of child-welfare practice can become a barrier to adopting a cutting-edge approach that would actually deliver more effective services.