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CIVIL RIGHTS—THE PRESIDENT'S PROGRAM, 1963

WEDNESDAY, JULY 24, 1963

U.S. SENATE,
COMMITTEE ON THE JUDICIARY,

Washington, D.C. The committee met, pursuant to recess, at 10:40 a.m., in room G-308, New Senate Office Building, Senator James O. Eastland (chairman) presiding

Present: Senators Eastland, Kefauver, Johnston, McClellan, Ervin, Hart, Long of Missouri, Kennedy, Bayh, Dirksen, Hruska, Fong, and Scott.

Also present: Joseph A. Davis, chief clerk; L. P. B. Lipscomb and Robert Young, professional staff members.

The CHAIRMAN. The committee will come to order.
Mr. Ervin, you may proceed.

Senator ERVIN. Mr. Attorney General, as the committee adjourned at its last sitting, I was asking you about a statute embodied in section 1983 of title 42. "It is entitled "Čivil Action for Deprivation of Rights." · I would like to ask you if, under that statute, any person who is denied any right he has under the Constitution or laws of the United States cannot bring a civil action for damages against any public official for depriving him of that right?

STATEMENT OF HON. ROBERT F. KENNEDY, ATTORNEY GENERAL

OF THE UNITED STATES, ACCOMPANIED BY BURKE MARSHALL, ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISIONResumed

Attorney General KENNEDY. He can, Senator.

Senator ERVIN. I will ask you, furthermore, if, under that statute, any person who is threatened with the deprivation of any right he has under the Constitution or laws of the United States, by any State or local official, cannot bring an action in equity and obtain preventive relief against being deprived of that right.

Attorney General KENNEDY. I believe he can, Senator.

Senator ERVIN. I ask you if, under the rules which govern the Federal courts, suits in equity are not tried by a judge without a jury?

Attorney General KENNEDY. That is correct, Senator.

Senator ERVIN. Now I call your attention to another section, which is subsection 3 of section 1985, title 42, which is a provision of that statute dealing with a conspiracy to deprive a person of rights and privileges.

I will ask you if, under that statute, any American of any race who is denied any right which he has under the Constitution or laws of the United States cannot recover damages in Federal district courts of all public officials and private individuals who conspire to deprive him of such right.

Attorney General KENNEDY. I believe that is correct, Senator.

Senator Ervin. So, under those two statutes, any American of any race who is deprived by any State or local official of any rights, under the Constitution or laws of the United States, has ample remedies to vindicate his rights if he is willing to have his rights adjudicated by the same laws which apply to all other men.

Attorney General KENNEDY. He has the remedies that you describe, Senator.

Senator ERVIN. I will call attention to certain statutes which are available to the Department of Justice in this connection. The first to which I will call your attention is section 242 of title 18 of the United States Code, which reads as follows:

Whoever, under color of any law, statute, ordinance, regulation, 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 different 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 1 year, or both.

I will ask you if the power to invoke that law does not rest in the Attorney General of the United States and the Department of Justice.

Attorney General KENNEDY. That is correct, sir.

Senator Ervin. I will ask you, under that law, if that law does not provide punishment by imprisonment for as much as 1 year, and a fine of as much as $1,000, or both, for any State or local official who denies any qualified citizen of any race of his right to register to vote?

Attorney General KENNEDY. That is correct, sir.

Senator Ervin. Furthermore, I will ask you if that statute is not even broader than that, and if it does not subject any State or local official to the punishment it prescribes, if he willfully denies any person within the borders of the United States of any right or privilege which he is entitled to under the Constitution and laws of the United States ?

Attorney General KENNEDY. I believe that is correct, Senator.

Senator ERVIN. I call your attention to section 241 of title 18 of the United States Code, which bears the heading “Conspiracy Against Rights of Citizens," and which reads as follows:

If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highways, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than $5,000 or imprisoned not more than 10 years, or both.

I ask you if the courts haven't held, under this statute, that any State or local official who conspires with any other person to deprive any qualified American of any race of his right to vote or of any other right or privilege secured to him by the Constitution or laws of the United States is subject to that punishment?

Attorney General KENNEDY. I believe that is correct, Senator.

Senator ERVIN. I now invite your attention to section 371 of title 18 of the United States Code.

I will read the parts which are relevant : If two or more persons conspire and I will omit some words that are not relevant to the questionto commit any offense against the United States, and one or more of such persons do any act to effect the object of such conspiracy, each shall be fined not more than $10,000, or imprisoned not more than 5 years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

I will ask this question :

Have not the Federal courts held that, under this statute, any State. or local official who conspires with any third person to violate section 242 of title 18 of the United States Code, is guilty of a criminal offense, and is punishable as described in this statute?

Attorney General KENNEDY. That is correct, sir.

Senator Ervin. So the Department of Justice has at its disposal now at least three criminal statutes under which they can send to Federal prison any State or election official who, out of his own head or imagination or in pursuance of a conspiracy with another, deprives any qualified American citizen of any race of his right to vote or of any other right or privilege secured to him by the Constitution or laws of the United States.

Attorney General KENNEDY. If the jury found him guilty of such an offense, that is right, sir.

Senator Ervin. Certainly a man ought not to be sent to prison unless the jury finds him guilty?

Attorney General KENNEDY. I didn't hear you add that.

Senator ERVIN. I am glad to hear that. I am also glad to hear that the U.S. Department of Justice has such veneration of trial by jury. I am also glad to know that the Founding Fathers had such a veneration for trial by jury that, when they wrote the Declaration of Independence, they gave as one of the reasons for breaking away from England that England had deprived the colonists in many cases of the right to trial by jury.

I would like to ask you if the Department of Justice has instituted any prosecution against anybody in any district court anywhere in the United States under any one of these three statutes.

Attorney General KENNEDY. Any of the criminal statutes, Senator?
Senator ERVIN. Yes.
Attorney General KENNEDY. No, we have not.
Senator ERVIN. Yet these three statutes-

Attorney General KENNEDY. Senator, I think what we are referring to specifically is in the field of civil rights. To make sure my answer is completely understood, we have instituted some cases, criminal cases, involving vote fraud, which would come under some of those statutes.

Senator Ervin. But I will ask you if the Department of Justice has instituted any prosecution against any election official anywhere in the United States or brought him to punishment for willfully depriving any qualified voter of his right to vote under these criminal statutes?

Attorney General KENNEDY. You mean since the statutes have been enacted ?

Senator Ervin. No; since you have taken over as Attorney General. Attorney General KENNEDY. No; we have not.

Senator Ervin. And so far as you know, your immediate predecessors did not, did they?

Attorney General KENNEDY. I think you mentioned that last time.

Senator Ervin. The Department of Justice has other statutes at its disposal in the voting rights field, hasn't it?

Attorney General KENNEDY. That is correct.

Senator Ervin: And these statutes authorize the Department of Justice to bring civil actions in equity to secure the voting rights of any qualified person who is threatened with the denial of such rights, do they not?

Attorney General KENNEDY. That is right.

Senator ERVIN. And these statutes are Public Law 85–315, which is called the Civil Rights Act of 1957, and Public Law 86-449, which is usually called the Civil Rights Act of 1930, are they not? I mean 1960.

Attorney General KENNEDY. 1960.

Senator ERVIN. Mr. Chairman, I would like to have these two statutes printed in the record at this point.

The CHAIRMAN. It is so ordered.
(The documents referred to follow :)

Public Law 85-315
85th Congress, H. R. 6127
September 9, 1957
AN ACT

71 Stat. 634, To provide means of further securing and protecting the civil rights of persons

within the jurisdiction of the United States.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

Civil Rights
Act of 1957.

PART 1-ESTABLISHMENT OF THE ('OMMISSION ON Civil Rights

Sec. 101. (a) There is created in the executive branch of the Government a Commission on Civil Rights (hereinafter called the “Commission”).

(b) The Commission shall be composed of six members who shall be appointed by the President by and with the advice and consent of the Senate. Not more than three of the members shall at any one time be of the same political party.

(c) The President shall designate one of the members of the Commission as Chairman and one as Vice Chairman. The Vice Chairman shall act as Chairman in the absence or disability of the Chairman, or in the event of a vacancy in that office.

(d) Any vacancy in the Commission shall not affect its powers and shall be filled in the same manner, and subject to the same limitation with respect to party affiliations as the original appointment was made.

(e) Four members of the Commission shall constitute a quorum.

RULES OF PROCEDURE OF THE COMMISSION

Sec. 102. (a) The Chairman or one designated by him to act as Chairman at a hearing of the Commission shall announce in an opening statement the subject of the hearing.

(b). A copy of the Commission's rules shall be made available to the witness before the Commission.

(c) Witnesses at the hearings may be accompanied by their own counsel for the purpose of advising them concerning their constitutional rights.

(d) The Chairman or Acting Chairman may punish breaches of order and decorum and unprofessional ethics on the part of counsel, by censure and exclusion from the hearings.

(e) If the Commission determines that evidence or testimony at any hearing may tend to defame, degrade, or incriminate any person, it shall (1) receive such evidence or testimony in executive session; (2) afford such person an opportunity voluntarily to appear as a witness; and (3) receive and dispose of requests from such person to subpena additional witnesses.

(f) Except as provided in sections 102 and 105 (f), of this Act, the Chairman shall receive and the Commission shall dispose of requests to subpena additional witnesses.

(g) No evidence or testimony taken in executive session may be Evidence or released or used in public sessions without the consent of the Com- testimony.

Release. mission. Whoever releases or uses in public without the consent of the Commission evidence or testimony taken in executive session shall be fined not more than $1,000, or imprisoned for not more than one year.

.(h) In the discretion of the Commission, witnesses may submit brief and pertinent sworn statements in writing for inclusion in the record. The Commission is the sole judge of the pertinency of testimony and evidence adduced at its hearings.

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