Last week, ACLU of Illinois Associate Legal Director Benjamin Wolf was asked to testify before an Illinois House Committee examining the interaction between state spending and federal consent decrees that govern particular functions of state government. The issue is especially critical right now because, as everyone knows, the State is operating without an agreed budget for the fiscal year that began on July 1st. The ACLU and our allies have been active in federal court over the past few weeks, assuring that protections and payments guaranteed under current federal consent decrees continue until the Governor and the legislature can agree on a budget.
Ben Wolf talked specifically about five (5) consent decrees in which the ACLU is counsel or co-counsel: R.J. v. Jones (children confined in facilities operated by the Illinois Department of Juvenile Justice); B.H. v. Sheldon (all children in the custody of the Illinois Department of Children and Family Services); Williams v. Rauner (people with mental illness confined in large institutions known as IMDs); Ligas v. Norwood (people with intellectual disabilities who are, or at risk of being needlessly, institutionalized in large facilities known as ICFs) and Colbert v. Rauner (people with physical disabilities and mental illness unnecessarily housed in large facilities knows as SNFs).
All five of these cases share some common elements. First, the populations affected are not politically-powerful; these people are often forgotten and neglected by society. Second, in each case, the State of Illinois agreed to a consent decree to govern reform of these areas rather than face a trial, where the failures of the State would be laid bare for the public. And, finally, in each and every area, the State has failed fundamentally to improve conditions for these populations sufficiently to bring their operations within the constitutionally-required level of care and service.
This last point is critical. We know that without federal court intervention under these decrees, our clients and thousands of others would suffer illegal deprivation of their rights in Illinois.
The opportunity to discuss the import of the political players taking steps to end the budget mess and provide adequate and appropriate services to the persons affected by these consent decrees took a strange turn in the hearing. Donovan Borvan, a lawyer from Governor Bruce Rauner’s staff, used the opportunity to offer a set of conservative talking points attacking federal consent decrees. Borvan reached a crescendo in this passage:
The reality though is that consent decrees produce poor results while limiting state agencies’ ability to craft better policy and more effective methods to serve the citizens of Illinois. Court orders are bad policymakers, and the experience in this state with respect to these consent decrees is that government by court order produces poor outcomes.
This broadside actually ignores a critical fact. It is not our consent decrees that have produced poor result. It is the case that the State has never made progress necessary to end court oversight by having state agencies adequately perform their responsibilities.
Mr. Borvan’s comments neglect to mention that the State always has a means to remove agency operations from existing supervision by the courts. All the State has to do is come before the presiding federal judge and prove that it has solved its internal problems and is providing constitutionally adequate services and care. But that isn’t happening. To the contrary, just recently, a group of independent experts filed a report in the DCFS case making clear that the agency is far from providing constitutionally-adequate services to children under the care of DCFS. That report actually called for a top-to-bottom reform and re-thinking of the operations at that agency.
In this case, and countless others, the consent decrees have stood as a bulwark preventing even more deterioration as state officials have failed again and again to recognize the role that government must play in these and other areas.
The ACLU will continue to work with State officials and with state agencies and with the courts to improve the lives of our clients. It is time to put aside the rhetoric and get to work.