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section 1983 to provide that in all cases brought under this sectionactions for injunctions, as well as for damages—the court, in its discretion, may allow the prevailing party reasonable attorney's fees as part of the costs.
4. To Extend The Equal Employment Law to Public Employment
In order to help assure that justice is administered in a non-discriminatory manner, employment in law enforcement agencies should be available to all persons, regardless of race, color, religion, or national origin. Title VII of the Civil Rights Act of 1964, providing for equal employment opportunities, does not cover public employment. Although discrimination in public employment can be challenged in private law suits, administrative and judicial remedies also should be provided. The Commission recommends that Congress consider amending Title VII to extend its coverage to public employment.
III. Executive Action
The employment of Federal force to curb racial violence should not be limited to situations involving a Federal court order. Federal protection should be accorded where local authorities fail to protect persons exercising constitutionally guaranteed rights or where general racial violence, unchecked by local law enforcement officials, deters individuals from exercising such rights. In affording Federal protection, the Armed Forces should be used only when all other means prove inadequate. The Commission recommends that the President direct that Federal law enforcement officers be stationed at the scene of likely violence, that increased numbers of Federal officials be assigned to communities where violence has occurred, that more extensive investigation and surveillance activities be undertaken by these officials, and that Federal law enforcement officers be authorized to make on-the-scene arrests for violations of Federal law. In addition, the Commission recommends that the staffs of Federal law enforcement agencies, particularly the U.S. marshals, should be strengthened and that their training and organization be designed to carry out these functions.
2. Assistance to Local Law Enforcement Agencies
Congress has enacted the Law Enforcement Assistance Act of 1965 which provides Federal funds to assist in training State and local law enforcement officials and to improve techniques, capabilities, and practices in local law enforcement in order to prevent and control crime. The Attorney General administers this Act. The Commission recommends that in administering this Act particular attention should be paid to assisting communities with problems of law enforcement raised by crimes of racial violence. Efforts should be made to develop techniques for recruitment, selection, screening, and training procedures which will improve the quality of local law enforcement.
SEPARATE STATEMENT OF COMMISSIONER
ERWIN N. GRISWOLD
As a lawyer who is proud of his profession, and as a legal educator who is concerned with the development of high professional standards in young lawyers, I have a deep concern in the administration of justice. It is clear that the administration of justice in the South today is one of the key elements in the most fundamental domestic problem of the United States. Too long and too often has this fact been overlooked by citizens and by lawyers throughout the country. It is my earnest hope that this report of the Commission on Civil Rights will focus the attention of thoughtful people everywhere on the realities of this problem, and that, especially, it will lead to an awakening of awareness and responsibility on the part of citizens and lawyers of the South.
As far as the ordinary Negro in the South is concerned, justice is not administered by the Supreme Court of the United States, or even by the supreme courts of the several States. The place where State power makes its impact on him is when he encounters sheriffs, and their deputies, and police officers, and court officers, and magistrates and justices of the peace. From experience he tends to look on these officers of the State not as protectors but as persons to be feared. He knows that many of them will exercise the discretion committed to them in such a way as to demean him and to deny him equality under the law. The Negro who knows his place ordinarily has little trouble—in his place. The Negro who is aware of the rights conferred on him by the Constitution and laws of the United States—and those who seek to help himrepeatedly encounters the long arm of the local law designed to intimidate him and to discourage him from any attempt to break out of the subservient place to which he has been assigned by the practices and the customs of the dominant elements of the community.
This injustice appears in mass arrests, such as those of the Freedom Riders who sought only to assert a simple citizen's right. It is
found in the decision to arrest, or not to arrest, when a small group of Negroes walking to register to vote becomes an illegal parade. When there is some offense, the white man receives a warning, or is ignored. The Negro is arrested with all the consequences of arrest. Discrimination is found in bail practices. White persons are released on their own recognizance, or with modest bail easily arranged; Negroes often have a higher bail and restrictions are imposed, such as a refusal to accept cash bail, or requiring bail sup
state—which is hard to find in a Negro community. Very often bail cannot be arranged from bonding companies in so-called civil rights cases because local agents will not sign the bonds.
The Negro's plight is found in police brutality—perhaps almost as important, in police discourtesy, in constant reminders in many ways, large and small, that he is a subordinate, lacking the full dignity of a man. It is found in decisions of the minor judiciary, where the Negro goes to jail and the white man is released on parole or pays a fine. It is found in social practices still tolerated in many courts, where seating is still segregated, and where Negroes are addressed only by their first names. It is found in juries, where, by one device or another, Negroes are rarely—often neverfound seated on the jury which actually hears a case with racial aspects. It is found in the fact that a Negro convicted of rape is usually given a death sentence, while this is rarely the fate of a white man convicted of this offense.
Looming in the background of all this, is the fact, well known to Negroes, that a white man who harms them will rarely, if ever, be severely punished. The murderers of Mack Charles Parker, though known, have never been indicted. No one has ever been charged by the State of Mississippi with the murder of three civil rights workers in 1964. The trials of persons charged with the murder of Lemuel A. Penn and of Jonathan Daniels resulted in acquittals. The measure of progress in this area, and our present lamentable situation, is indicated by the fact that a person was actually charged with the murder of Medgar Evers, and was brought
to trial, resulting in a hung jury; he was retried, with the jury hung again. Here the prosecuting officers and the judge did their duty-all credit to them—but juries are a part of our system of administration of justice, too. The trial of one of the persons charged with the murder of Mrs. Viola G. Liuzzo likewise resulted in a hung jury. A re-trial led to an acquittal.
Jurymen take an oath to administer justice fairly and impartially, according to the evidence produced before them in open court. Until they do so, can it be surprising that Negroes have little confidence in the administration of justice in southern courts? More than a century ago, in recounting the situation in the distant past, Chief Justice Taney said that “The Negro has no rights which the white man is bound to respect.” In these crucial matters—the physical safety of the Negro in his life and body, and his human dignity-how much progress have we made in the last three centuries, or alas, in the last hundred years? 1
So long as lawyers, public officials, and State courts in the South continue to distort the processes of public power so that Negro citizens may not enjoy the legal equality promised them or exercise the liberties assured them by the Constitution, Federal authority must continue to make itself felt. A central irony in the situation in which the South now finds itself is the fact that the refusal of its lawyers and its judges to fulfill their plain responsibilities has been the principal cause of the intervention from outside against which the South so vigorously protests. So long as disregard of national law rules the southern scene, national power must make . itself directly felt. Sometimes its bite will affect the electoral processes that have been misused to preserve discriminations. Sometimes injunctions will be issued to prevent continued harassment of Negroes. Sometimes cases that have been initiated for
Our sad lack of progress in the past 90 years is strikingly shown by the charge given by a Federal judge in Tennessee 90 years ago which is painfully applicable to our present situation. See supra, p. 171–72. This is quoted by Professor Mark DeW. Howe in his Foreword to Southern Justice (1965) v-vi.