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Senator DOUGLAS. You have always been fine on this, but if you will get your colleagues to favor a strong Executive when the Democrats are in power, I will advocate the exercise of that authority.

Senator JAVITS. President Kennedy did act and I think President Johnson could and should act.

Senator Douglas. I can imagine what would have happened from other members of your party had he done so.

Senator Javits. I would say with all respect, Senator Douglas that I can imagine what would happen to other members of your party had he done so.

Senator Douglas. I would say that is tit for tat.

Senator ERVIN. If I may interject myself, I am glad that my friend from New York has brought the Senator from Illinois and the Senator from North Carolina and the Senator from Florida to agreement on the proposition that laws ought to be made by the Congress rather than by the President.

Senator Douglas. That is what we are trying to do, embarrassing though it may be.

Senator JAVITS. Senator, just to conclude, obviously the President could not issue an order which enlisted the legislative powers. I believe he has the Executive power.

President Kennedy asserted it, and I believe President Johnson could assert it.

Senator Douglas. The Executive order of President Kennedy still continues, but I think that applied only to public housing and FHA.

Senator JAVITS. It did. Senator Douglas. Guaranteed housing. Senator Javits. It did. It was limited to that. Senator Douglas. This is only a minority of public housing. There are about 700,000 public housing units in the country. Only about 2.5 percent of the housing units. FHA insurance is still å minority. The vast majority of housing is privately owned and privately financed. Let it be said in the books that here you are a very eminent

asking Senator Javits. That is correct, I am, where he has already used it, , and where his authority to expand the existing protection from 23 percent of housing to 80 percent

Senator Douglas. Senator Javits, you and I agree on so many subjects, let's not fall out.

Senator Javits. No. I thank you, Senator Douglas, for your testimony, and I pay tribute again to your tremendous leadership in this field.

I thank the Chair.
Senator Douglas. It has been very minor really.

Senator Ervin. I want to thank you for appearing before the committee and presenting your views in respect to the proposed legislation in such a genial and such an eloquent fashion. At the same time, let me express my regret that you do not entertain the same sound views on this legislation that I do.

Senator Douglas. Thank you very much, Mr. Chairman.

I always feel a privilege in appearing before you. You have had so much experience as a lawyer and a judge, and I hope you will forgive any inadequacies which I displayed.

Senator Ervin. Well, you have not displayed anything that requires forgiveness.

Senator Douglas. Thank you very much.

Senator Ervin. And I hope you have a very nice trip out to your State.

Thank you very much. Senator Douglas. I hope to mend some fences. Finally, Mr. Chairman, I would like to include in the record as part of my testimony a fine analysis of the provisions of our bill, principal bills introduced in the House, and the bill prepared by the Administration. While I believe the analysis to be most accurate I should point out that it was drawn up on the basis of reports of the content of the administration's bill rather than on the final wording of the text of that bill. But again I say that the analysis is an especially useful one for comparing my bill with that of the administration.

(The matter referred to is as follows:)


Analysis of civil rights protection legislation pending in Congress
This analysis was made before the introduction of the administration's bill. It is based on advance reports of the bill's contents.
Revision and expansion of the sections relating to the administration's program may be necessary when it is introduced.

(Whenever the term "race or color" is used in S. 2923 and H.R. 12807 it includes civil rights workers who are promoting racial equality]

Discrimination on basis of race, color, sex, Same as S. 2923

Discrimination on basis of race, color, religion,
political or religious affiliation, economic

sex, national origin, or economic status
or social status prohibited.

Names obtained from cross section of Names obtained from voting lists. Random Names obtained from voting registration

population under sampling plan prepared selection made from those lists under plan lists; but if judicial council of circuit
in consultation with Director of Adminis- directed by chief judge of district court determines use of voting lists would not be
trative Office of U.S. Courts, with advice with assistance and approval of Adminis- nondiscriminatory, it could prescribe other
from Director of Census Bureau. Juries trative Office of U.S. Courts and advice of sources of names. Random selection from
selected from names so obtained by Director of Census Bureau. Names shall voting or other lists.
random selection.

not be used again until voting lists are

Requirement of ability to read and write Existing requirement of ability to read and Existing requirement of ability to read and

English language repealed. Judge may write English retained unless person has write English retained.
exclude in cases requiring this ability, completed 6th grade.
except no person with a 6th-grade educa-

tion can be excluded from service.
Attorney General, any citizen of judicial Jury selection review annually by judicial Procedure provided for challenging jury

district or litigant may apply to court of conferences. Chief judge of circuit shall selection in criminal and civil cases.
appeals if selection procedures are not take charge of supervision if provisions
followed or if records are not kept. Court are not enforced.
of appeals may appoint jury commissioners

responsible to it.
Questionnaires used in jury selection, names Similar to S. 2923
on jury lists and in jury wheel, names and
race of those serving, date of service, etc.,
must be kept 4 years. Criminal penalties
prescribed for failure to keep records or for
destroying or dsmaging them.

Repeals existing provisions authorizing

court to select jury from bystanders when jury list is exhausted and to call special juries.


II. STATE JURIES Discrimination prohibited.

Discrimination on basis of race, color, national

origin prohibited.

How enforced

Discrimination on basis of race or color pro-Discrimination on basis of race, color, or sex

hibited. But where this is shown, or rec- prohibited.
ordkeeping provisions of bill are not fol-
lowed. prohibitions applicable to Federal
juries go into effect.
1. Suit in district court brought by Attorney 1. Transfer by defendant to Federal court.

General, citizen of district, or litigant. Also applicable if records are not kept
Upon showing of discrimination or (see below).
failure to keep records, court can direct
Director of Administrative Office of
U.S. Courts to administer jury system

and apply Federal standards.
2. Initiation of cases in or transfer to Federal 2. Injunctive action by Attorney General.

courts (see below).

1. Injunctive action by Attorney General.

It discrimination is found, corrective
action can be taken by court, including
appointment of master to perform duties
of State jury officials.

Methods of demonstrating discrimina


In cases involving transfer, a showing that

State courts do not follow procedures for
selecting Federal juries, unless it is estab-
lished that procedures followed do prevent
discrimination on grounds of race, color,
or sex.

2. Disclosure procedure in cases brought by

Attorney General or private litigant
residing in district, or defendant in crim-
inal case or convicted person attacking

Il court under challenge procedure deter-

mines that there exists probable cause that
the jury was not selected according to pro-
cedures described by State officials, burden
of proof of nondiscrimination is shifted to

1. Any final judgment of Federal or State

court within 5 years determining that there has been systematic race or color exclusion from jury unless local officials

prove exclusion no longer exists.
2. Showing that over a period of 2 years ratio

of colored within area to total popula-
tion exceeds by % or more ratio of
colored serving on juries to total num-
ber of persons serving on juries (except
where colored are less than 10 percent of

Similar to that for Federal juries with same

criminal penalties.
Attorney General may file suit to enjoin any

change in law affecting juries after Jan. i,
1966 if change is for purpose of circum-
venting provisions of this bill.


Similar to S. 2923

In suit brought by Attorney General, court

may require recordkeeping as part of relief granted.

Changes in laws relating to juries.

Analysis of civil rights protection legislation pending in Congress-Continued This analysis was made before the introduction of the administration's bill. It is based on advance reports of the bill's contents. Revision and expansion of the sections relating to the administration's program may be necessary when it is introduced.

Whenever trial in Federal court is necessary to assure equal protection of the laws to victim or group to which he belongs.
Requirements for trial in Federal court. (1) Determination by Federal district court, if jurisdiction is challenged, that trial is necessary to assure equal protection of the laws.

(2) Certification (nonreviewable) by Attorney General, at or prior to final arraignment, that prosecution in Federal court would fulfil

responsihility of United States to assure equal protection of the laws.
Criteria for determining equal-protec- Case must involve a victim who is a member of a racial or color group subject to discrimination or a person advocating or supporting equal
tion issues.

protection for such racial or color groups. Discrimination exists where members of the racial or color group are (1) systematically excluded
from jury service; (2) systematically denied the franchise in elections involving judges or prosecuting officials; (3) systematically segre-
gated or discriminated against in jails, police stations, courts, or other public buildings related to the administration of justice; (4) sys-
tematically subjected to harsher punishments upon conviction; (5) systematically subjected to more onerous terms or conditions of bail
or conditional release. A final judgment of a court within 5 years that there has been jury exclusion or voting discrimination, unless it
is shown that such exclusion or discrimination has ceased, shall be conclusive on these issues. Jury and voting discrimination may be
proved by a showing that the ratio of the population of the group in the area to the total population exceeds by 43 or more the ratio of
the number of persons of the group serving on juries bears to the total number of persons serving on juries (over a 2-year period) or the

In any trial under these laws, the substantive State law relative to the crime shall apply, including that of penalties. Federal rules of

procedure shall govern the trial. Postconviction matters such as custody, parole, probation, etc., shall be under Federal law.
Investigation and prevention of crime. In all cases subject to the jurisdiction of these proceedings, FBI, U.S. marshals and other U.S. officials may act to prevent or investigate

crimes even though the Attorney General has not as yet filed his certificate.
Removal of cases from State courts. In any instance in which the Attorney General could initiate a suit under these provisions, he may remove a prosecution commenced in


U.S. Commission on Civil Rights authorized to conduct investigations of jury discrimination. After investigation, Commission shall submit its findings to responsible State or local authorities. Il controverted Commission shall

(Whenever the term "race or color" is used in S. 2923 and H.R. 12807 it includes civil rights workers who are promoting racial equality)

S. 2923, Douglas, Case, and other bypar

tisan Senators; H.R. 12807, Diggs and other Congressmen

H.R. 13323, Mathias (Maryland) and other

Republican House Members

Administration program



(In S. 2923 and H.R. 12807 only. No

similar provisions in H.R. 13323 or

administration program)
Type of case

Any case triable under State or local criminal law.
Basis of Federal jurisdiction.

ratio of the number of persons of the group registered to vote bears to the total number of persons registered to vote.
Applicable law

State court to Federal court by filing a certificate, provided that jeopardy has not attached.

(In S. 2923 and H.R. 12807 only. No

similar provisions in H.R. 13323 or

administration program)
Responsible agency--

consider responses and may revise findings. Il still controverted it shall conduct a public hearing, then publish findings. Commission's findings shall constitute evidence in any action brought under this blli, except to extent that person controverting them

satisfies the court that they are not correct.

Effect of findings

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