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enforcement of State law rests on elected county officials. There is virtually no State supervision over the conduct of these officials, with the result that there is, in effect, a local option on the enforcement of State law.
4. Local officials in communities studied by the Commission in Mississippi, Alabama, Florida, and Georgia did not permit persons to exercise the right to assemble peaceably to make known their grievances. Civil rights demonstrators were repeatedly arrested, dispersed, or left unprotected before angry crowds, without regard for the right to public protest assured by the Constitution.
5. When participants in civil rights activities were arrested, local officials often abused their discretion in the administraton of criminal justice by: (a) imposing harsh and discriminatory bail requirements both
as punishment and deterrent; (b) imposing harsh and discriminatory sentences and fines; (c) utilizing the latitude permitted in juvenile proceedings to
curtail or penalize participation in constitutionally pro
tected activities; and (d) subjecting demonstrators to intolerable jail conditions de
signed to inflict punishment. 6. The Federal Constitution requires local officials to be bound by oath or affirmation to support it, and State laws generally enforce this obligation by requiring such an oath. Nevertheless, many local officials in Mississippi and in the other communities studied by the Commission violated their duty to uphold the Constitution by failing to provide Negroes and civil rights workers protection from violence; by interfering with the exercise of Federal rights, including the right of public protest; and by abusing discretion in the administration of justice.
criminal remedies available to the Federal Government to punish racial violence are the remnants of broad Reconstruction legislation and are inadequate. The fundamental problem is that the principal statutes--sections 241 and 242 of title 18 of the United States Code-require, in one form or another,
proof that the defendant intended to deprive the victim of Federal constitutional or statutory rights. This requirement of purpose has limited the usefulness of these statutes as remedies for racial violence.
8. Because of the inadequacies of existing law, the Department of Justice has found considerable difficulty in prosecuting cases of racial violence. The result has been an unfortunate absence of prosecutions despite the seriousness and scope of the problem.
9. Under present law there are only limited situations under which the Attorney General is authorized to initiate proceedings to remedy denials of equal protection of the laws. The Civil Rights Act of 1964 empowers the Attorney General to intervene in any case where relief is sought "from the denial of equal pro tection of the laws under the 14th amendment to the Constitution on account of race, color, religion, or national origin, ...” but he may not intervene in or initiate proceedings to remedy denials
of due process.
10. Under recent decisions of the Supreme Court, the equitable powers of the Federal courts have been broadened to enable participants in civil rights activities to obtain Federal court orders enjoining unlawful arrest and enforcement of unconstitutional State statutes. The Federal Anti-Injunction statute, however, prevents a Federal court from enjoining State court proceedings against defendants who are being prosecuted for constitutionally protected activity.
11. The Civil Rights Act of 1964 enabled the Federal courts to re-evaluate restrictive interpretations of the Federal removal statute. As a result, recent Federal court decisions have broadened the
scope of this remedy so that State prosecutions of civil rights workers, which constitute denials of equal protection of the laws under the 14th amendment, may be removed to Federal court.
12. The President has the authority in carrying out his constitutional duty to execute the laws to use force to prevent violations and secure the execution of Federal law. Under 10 U.S.C. section 333, the President has express statutory authority to use force to protect a class of citizens when local officials fail to protect
them from widespread violence. These sources of Presidential power are broad enough to permit the use of whatever Federal force
may be required to protect Federal rights. The policy of the Federal Government, which has limited the use of force to situations involving a court order, has in many situations prevented the prompt use of Federal force to prevent racial violence. As a consequence, persons have been injured and the exercise of Federal rights deterred.
13. The need for the additional Federal action recommended in this report results from the failure of certain States to assume their responsibilities to assure their own citizens the rights guaranteed by the Federal Constitution. When and to the extent these States act to assume these responsibilities, action by the Federal Government will no longer be needed.
1. Criminal Remedies
Failures of State and local law enforcement officials to prevent or punish crimes of racial violence and the inadequacy of the current Federal criminal statutes urgently require additional legislation to protect persons exercising rights guaranteed by the Constitution and by Federal statute. The Commission recommends, therefore, that Congress consider enacting a criminal statute based on its powers to regulate interstate commerce and to enforce the 14th amendment by appropriate legislation.
Part I of the statute, based on congressional power over interstate commerce, would make criminal any act of violence, threat, intimidation, or punishment against a person engaging in certain protected activities if the perpetrator used or was using the mails or any facility of interstate commerce or if the victim was using a facility of interstate commerce. The protected activities would include the lawful exercise (or attempted exercise) of any right created or secured by a Federal statute relating to equal or civil rights, or any peaceful and orderly activity which is protected by
the ist amendment, when undertaken for the purpose of obtaining equality for individuals of a particular race or color.
Violation of the statute would be a felony and the penalties for its violation graduated according to the seriousness of the unlawful act.
Part II, based on the equal protection clause of the 14th amendment, would permit the prosecution in Federal court of cases of racial violence that violate State law where the failure of local officials to act, or the nature of their action, constitute a denial of equal protection in the administration of justice or where it is determined that justice is administered in the community involved in a manner so as to deny equal protection of the laws. The statute could set forth various standards, such as the extent of racial discrimination in the selection of juries, to be evaluated in making the latter determination. Punishment should be the same as if the case had been prosecuted in State court. To minimize interferences with State criminal procedures, the determination of whether a Federal prosecution is justified could be made by a three-judge Federal court. If the three-judge court determines that a Federal trial is appropriate, the trial should proceed before a single judge sitting with a jury.” II. Civil Remedies 1. To Increase the Authority of the Attorney General to Initiate
and Intervene in Civil Rights Cases
Title IX of the Civil Rights Act of 1964 provides that the Attorney General may intervene in any case of general public importance brought in Federal court where relief is sought “from the denial of equal protection of the laws under the 14th amendment to the Constitution on account of race, color, religion, or national
origin. ..." The Commission recommends that Congress con-
* In United States v. Guest, pending on appeal, No. 65, Oct. Term, 1965, the Department of Justice is urging that section 241 of title 18 be construed to apply to private violence that interferes with rights protected by the equal protection clause of the 14th amendment. Because of the pendency of this case, the Commission deems it inappropriate to make any recommendation regarding amendment of section 241 at this time. For the Commission's previous recommendation regarding amendment of section 242, see Justice Report 112.
2. To Provide Relief to Private Persons Against Unlawful State
Although private persons may seek relief against prospective
3. To Strengthen Civil Remedies Against Unlawful Official
In 1961 the Commission recommended that section 1983 of
* This would permit the Attorney General to bring civil proceedings to assure non-