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The only other criminal law generally applicable to civil rights derives from the Act of May 31, 1870, which was passed principally to enforce the right to vote guaranteed by the 15th amendment.' Declaring that all otherwise qualified citizens were entitled to vote without regard to race,to the Act provided criminal punishments for bribery, threats, intimidation, or other unlawful attempts to prevent the free exercise of any right or privilege secured by Federal laws." Although most of this Act was rapidly dismantled, first by the Supreme Court," and then by Congress, the prohibition of conspiracies to deny Federal rights, has survived as section 241 of the Criminal Code. This section is the principal remedy against private racial violence:

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 highway, 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 ten years, or both." A third important piece of Reconstruction criminal legislation was the Ku Klux Klan Act of 1871,15 which punished conspiracies against the operations of Government officials or courts, or to deprive persons of equal protection of the laws. The Act also au

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° Act of May 31, 1870, ch. 114, 16 Stat. 140.
Act of May 31, 1870, ch. 114, § 2, 16 Stat. 140.
Act of May 31, 1870, ch. 114, $$ 4–6, 16 Stat. 140.

United States v. Reese, 92 U.S. 214 (1876) (convictions under $$ 3 and 4 reversed and the sections declared unconstitutional on the grounds that the reach of the statute was broader than the grant of power of the 15th amendment.)

13 The Act of Feb. 8, 1894, ch. 25, 28 Stat. 36-37, repealed most of the Act of 1870 as
a symbolic end to what remained of Reconstruction. See note 20 infra.
14 18 U.S.C. § 241 (1964).

Act of April 20, 1871, ch. 22, 17 Stat. 13.
Act of April 20, 1871, ch. 22, $ 2, 17 Stat. 13-14.

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thorized the President to use troops whenever conspiracies in any State so hindered the execution of State or Federal laws that

persons were effectively deprived of their civil rights." This last provision is still law, but the heart of the Act-the prohibition of conspiracies to deprive persons of equal protection—was struck down by the Supreme Court in 1883, principally on the grounds that the 14th amendment did not empower Congress to punish acts by private persons.

Thus, by 1894 much Reconstruction legislation had either been declared unconstitutional by the Supreme Court or repealed by a Congress exhorted to “let every trace of the reconstruction measures be wiped from the statute books. Since that time, Congress has acted repeatedly in other fields to preserve public order when the States have demonstrated their inability to do so. For examples," in 1910 it passed the Mann Act prohibiting white slavery 22 after finding that “the evil is one which can not be met comprehensively and effectively otherwise than by the enactment of federal laws." 23 In 1919 it made criminal the transportation, sale, and receipt of stolen vehicles in interstate commerce, after finding that “State laws upon the subject have been inadequate to meet the evil.” 25 In 1934 it passed the Federal Bank Robbery Act,28 after finding that bank robbers “are sufficiently powerful and well equipped to defy local police.” 27 And in 1954, because of the “dis

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Act of April 20, 1871, ch. 22 $ 3, 17 Stat. 14. 18 See 10 U.S.C. $ 333 (1964).

19 United States v. Harris, 106 U.S. 629 (1883). See also Baldwin v. Franks, 120 U.S. 678 (1887). These sections were later repealed. Act of March 4, 1909, ch. 15, $ 341, 35 Stat. 1153-54.

S. Rep. No. 113, 530 Cong., 2d Sess. 8 (1893). * Each of the following statutes is based on the commerce clause, art. I, § 8, except for the Federal Bank Robbery Act, which was passed pursuant to the banking power construed in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). See also Westfall v. United States, 274 U.S. 256 (1927).

22 36 Stat. 825–27 (1910), 18 U.S.C. $$ 2421-24 (1964). 2 H.R. Rep. No. 47, 61st Cong., 2d Sess. 10 (1909).

24 National Motor Vehicle Theft Act, $$ 1, 3, 5, 41 Stat. 324–25 (1919), 18 U.S.C. $ $ 2312-13 (1964).

25 H.R. Rep. No. 312, 66th Cong., ist Sess. I (1919).
24 48 Stat. 783 (1934), 18 U.S.C. § 2113 (1964).
2H.R. Rep. No. 1461, 73d Cong., 2d Sess. 2 (1934).

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couragingly and alarmingly ineffective” efforts of the States to protect their citizens from dangerous fireworks, Congress prohibited the delivery of fireworks into States which prohibited or regulated their use “in order adequately to protect .. children and other citizens from these preventable casualties. .

In contrast to those efforts of Congress to protect Federal interests discussed above, no new Federal legislation of general applicability to the problem of racial violence has been enacted since Reconstruction days. As a result, sections 241 and 242—the remnants of Reconstruction laws—are still the principal Federal criminal remedies to deal with these difficult problems.29

INTERPRETATION OF CRIMINAL REMEDIES

In its 1961 Justice Report, the Commission analyzed sections 241 and 242 and commented on their inadequacy as remedies. The problems discussed in the Justice Report have not been corrected either by congressional action or by judicial decision. Those problems, and recent developments related to them, are briefly discussed below.

Significant barriers to obtaining convictions under these statutes arise from the connection required between the violent or unlawful action and the constitutional or statutory rights of the victim. As discussed at length in the Justice Report, the Supreme Court has held that in order to convict under section 242, the jury must find that the defendant acted "with the specific intent" to deprive the victim of recognized constitutional rights. Thus, an indictment

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28 H.R. Rep. No. 632, 83d Cong., 2d Sess. 1 (1954). 68 Stat. 170–71 (1954), 18 U.S.C. § 836 (1964).

Other criminal statutes relate only to limited and specific civil rights crimes. See 18 U.S.C. $ $ 1581, 1583, and 1584 (1964) (slavery and peonage); 18 U.S.C. § 243 (1964) (exclusion of jurors on racial grounds); 18 U.S.C. § 594 (1964) (intimidation of voters); 18 U.S.C. $ 837 (1964) (interstate transportation of explosives with intent to damage or destroy property); Voting Rights Act of 1965, $$ 11, 12, 79 Stat. 437, 443-44 (intimidation of voters; vote frauds; deprivation of registration or voting rights secured in other sections of the Act).

1961 U.S. Commission on Civil Rights Report, Justice 45-55 (hereinafter cited as Justice Report).

31 Screws v. United States, 325 U.S. 91 (1945).

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under section 242 must charge and the prosecution prove that the defendant acted not merely from malice but "in open defiance or in reckless disregard of a constitutional requirement which has been made specific and definite." 32

The requirement of proof of “specific intent” does not materially affect the nature of the evidence presented by the prosecution in section 242 cases. With or without this requirement, the prosecution must still prove that the officer acted without justification, and the evidence adduced for this purpose is the same evidence relied on to prove specific intent. But in order to find specific intent the jury is required to infer from this evidence that the victim's constitutional right was known, or should have been known, to the officer, and that he acted in defiance or reckless disregard of this right.

This leads both to curious distinctions and unfortunate results. Since "an officer of the law undoubtedly knows that a person arrested by him for an offense has the constitutional right to a trial under the law,""the principal issue before the jury is whether the officer acted in defiance of such right (in which case he is guilty),54 or solely because of malice (in which case he is innocent),35 or for both reasons (in which case he is guilty).36 In one significant case the jury felt compelled by the judge's instructions on specific intent to acquit the defendant officer even though in the opinion of its members he was guilty of murder or manslaughter.

As the mere statement of the issue indicates, whether specific intent exists is an elusive question which requires the jury to manipulate subtle distinctions concerning motive. Moreover, since there is usually no direct evidence of intent, the jury must draw inferences from surrounding circumstances, which are usually equivocal with respect to the distinction between general bad pur

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% Charge to the jury in United States v. Screws, Crim. No. 1300, M.D. Ga., Nov. 1, 1945.

Crews v. United States, supra note 33, at 749-50. 37 United States v. Minnick, Crim. No. 8466–M, S.D. Fla., June 23–26, 1953. See Shapiro, Limitations in Prosecuting Civil Rights Violations, 46 Cornell L.Q. 532 (1961).

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pose and specific intent. The conceptual difficulty of the question, and the usual absence of compelling evidence, combine to produce an issue on which the jury can do little more than speculate. At best, this issue creates difficulties for the conscientious jury, and it is particularly undesirable in civil rights cases because the freedom it gives the jury may encourage its members to express personal prejudices against conviction.

The problem of connecting the violent and unlawful act with the Federal right arises in a different context in prosecutions under section 241. The lower Federal courts have held that section 241 punishes conspiracies to interfere with only a limited class of Federal rights--those which arise from the relationship of the individual and the Federal Government, rather than those rights only secured against State infringement.38 Some of these special Federal rights which have been defined by the Supreme Court are the right to pass freely from State to State, the right to petition Congress for a redress of grievances,“o the right to vote for national officers," the right to be protected against violence while in lawful custody of a United States marshal,42 and the right to inform United States authorities of violations of its laws.

But section 241 has not yet been held to encompass protection for those constitutional rights to due process of law and equal protection of the laws which are protected from State interference by the 14th amendment.

The last time this issue arose the Supreme Court divided evenly, thus confirming the narrow interpretation of the lower courts.

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United States v. Williams, 179 F. 2d 644, 648 (5th Cir. 1950), aff'd, 341 U.S. 70 (1951).

* See, e.g., Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868).
40 United States v. Cruikshank, 92 U.S. 542 (1876).
Ex parte Yarbrough, 110 U.S. 651 (1884).
Logan v. United States, 144 U.S. 263 (1892).
In re Quarles, 158 U.S. 532 (1895).

But see, United States v. Morris, 125 Fed. 322 (E.D. Ark. 1903) (“the right to lease land and to accept employment for hire”); Smith v. United States, 157 Fed. 721 (8th Cir., 1907), cert. denied, 208 U.S. 618 (1907) (the right to be free from involuntary servitude); Ex parte Riggins, 134 Fed. 404 (C.C.N.D. Ala. 1904) writ quashed sub nom., Riggins v. United States, 199 U.S. 547 (1905), not followed, United States v. Powell, 151 Fed. 648 (C.C.N.D. Ala. 1907) (right to due process of law).

United States v. Williams, 341 U.S. 70 (1951).

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