PART II.

REMEDIES

Part I of this report examined practices of law enforcement officers in several communities in the South, particularly in Mississippi. The problem areas studied included the failure of local officials to prevent racial violence or to apprehend or punish those responsible for it, the failure of local prosecutors to pursue vigorously State criminal remedies, interference by local officials with the exercise of Federal rights, and abuse by local officials of the administration of justice.

Primary responsibility for correcting the problems described rests with the individual States. But the failure of the States to assume that responsibility has thrust much of the burden of remedying denials of Federal rights and protecting the integrity of the laws of the United States on the Federal Government. Part II of this report is devoted to an examination of the criminal, civil, and executive remedies available to the Federal Government, the uses to which these remedies have been put, and an analysis of their adequacy to deal effectively with the problems.

ΙΟΙ

CHAPTER 6.

FEDERAL CRIMINAL LEGISLATION

There are certain Federal criminal sanctions which may be used to remedy failures of State law enforcement and the wrongful acts of private individuals discussed in preceding chapters. These statutes are penal in nature and are directed at punishing wrongs against society as a whole. They are enforceable only by the legal arm of the Federal Government, the Department of Justice. This chapter will consider the development and interpretation of the Federal criminal civil rights statutes and their enforcement by the Department of Justice.

DEVELOPMENT OF CRIMINAL REMEDIES

The first criminal laws enacted by Congress were designed primarily to protect the operations and property of the Federal Government and to provide a criminal code for areas of special jurisdiction, such as Federal lands, which were under sole Federal protection. For 75 years this remained the principal function of such legislation. Protection of the right to personal security was left to the general criminal laws of the States.

Reconstruction Legislation

The enactment of civil rights laws in the Reconstruction era, between 1866 and 1871, marked a departure from this tradition. Unlike previous Federal enactments, these laws were aimed at

2

1 Act of April 30, 1790, ch. 9, 1 Stat. 112.

* See generally, Revised Statutes §§ 5323-505, 5533–50 (1874) (excluding the Reconstruction legislation).

protecting citizens in the exercise of rights and were occasioned by the failures of the States to prevent violence under general criminal laws.

4

In the first Reconstruction Act-"to protect all persons in the United States in their civil rights"-Congress enacted criminal and jurisdictional provisions of lasting importance. The purpose of this Act, passed in 1866, was nullification of the Black Codes and enforcement of the 13th amendment, which had been adopted the previous December. The Act declared that all persons born in the United States were citizens, entitled to equal rights in the courts, and "to full and equal benefit of all laws and proceedings for the security of person and property. "5 A denial of such rights by any person acting under color of law became a Federal offense. This provision, with certain textual changes,' now survives as section 242 of the Criminal Code. It is the principal Federal instrument against violence or other unlawful action by officials. It provides:

Whoever, under color of any law, statute, ordinance, regu-
lation, or custom, willfully subjects any inhabitant of
any State, Territory, or District to the deprivation of any
rights, privileges, or immunities secured or protected by
the Constitution or laws of the United States, or to differ-
ent punishments, pains, or penalties, on account of such
inhabitant being an alien, or by reason of his color, or
race, than are prescribed for the punishment of citizens,
shall be fined not more than $1,000 or imprisoned not
more than one year, or both."

3 Act of April 9, 1866, ch. 31, 14 Stat. 27.

* See Carr, Federal Protection of Civil Rights 37 (1947); Maslow and Robinson, Civil Rights Legislation and the Fight for Equality, 1862–1952, 20 U. Chi. L. Rev. 363, 366–67 (1953); Gressman, The Unhappy History of Civil Rights Legislation, 50 Mich. L. Rev. 1323, 1325-27 (1952).

5 Act of April 9, 1866, ch. 31, § 1, 14 Stat. 27.

"Act of April 9, 1866, ch. 31, § 2, 14 Stat. 27.

7

The most significant of these was the addition of the word "willfully" in 1909. Act of March 4, 1909, ch. 321, § 20, 35 Stat. 1092.

8 18 U.S.C. § 242 (1964).