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CRIMINAL LAW

Coverage

65–50666/pt. 1-19

1. Existing criminal statutes on civil rights Amends existing law to protect all Federal New provisions protecting persons using pub

are amended so that all Federal rights rights from interference, whether under lic facilitis or puble schools on equel basis are protected from interference by all color of law or not, but limits protection to from obstruction, interference, or punishpersons whether acting under color of cases involving race or advocacy of equal ment. Civil rights workers and school law or not. Rights now protected only rights.

boards or others with duties to perform in
against conspiracy would be protected

affording equal rights and protected.
against individual action.

(Note: It is expected that the administra-
2. New provisions cover assaults on persons

tion may suggest revision of existing
for exercising or advocating rights pro-

criminal civil rights laws after analyzing
tected against discrimination.

the Supreme Court opinions in the Penn
3. New provisions cover personal assaults

and Schwerner-Chaney-Goodman cases (Mar.
that interfere with exercise of equal

28, 1966). It is not expected that the
rights or opportunities when use of

administration will suggest trial of State
interstate commerce or anything that

crimes in Federal courts as this issue was
has moved in commerce is involved in

not before the Supreme Court.)
assault.
Penalties are increased and made flexible. Penalties are increased and made more flexi- From 1 year to life imprisonment, depending

Range froin 1 to 20 years' imprisonment, ble. Range from 1 to 30 years' imprison- on gravity of offense.
depending on gravity of offense.

ment, depending on gravity of offense.
Mandatory sentence of not less than of
maximum penalty for 2d offense.

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Similar to S. 2923.

1. All Federal rights protected from inter

ference by anyone because of race or

color.
2. Right of free speech or other expression

used to advocate equality of persons or
opportunity also protected in areas

where discrimination is shown.
Attorney General or person whose rights are

threatened.

No new protections. Would authorize

Attorney General to bring suit to de-
segregate public schools or public facilities
without present requirement of written
complaint.

Person entitled to sue.

Same as S. 2923.

Attorney General.

REMOVAL OF CASES FROM STATE TO
FEDERAL COURTS BY DEFENDANTS

Types of cases removable.

1. Criminal cases or criminal or civil con- Civil actions or criminal prosecutions..

tempt actions. 2. Any case involving freedom of expression

used to advocate racial equality. Basis for removal

1. If case is one in which defendant is a 1. If recordkeeping requirements regarding

member of group discriminated against juries are not observed.
or a person advocating equality and if 2. If jury selection procedures are not in
discrimination is shown under same conformity with Federal procedures,
criteria that apply in prosecution of unless it is established that procedures
State crime in Federal courts (see used do not discriminate on basis of
above).

race, color, or sex.
2. If case involves free speech or other

expression used for advocating racia)

equality. 1 Title II of S. 2923 and H.R. 12807 covering this subject implements the recommenda- Source: Prepared for Leadership Conference on Civil Rights by J. Francis Pohlhaus. tion of the Civil Rights Commission and has been reviewed by the Commission staff.

279

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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 the term "race or color" is used in S. 2923 and H.R. 12307 it includes civil rights workers who are promoting racial equality]

S. 2923, Douglas, Case, and other bypar- | H.R. 13323, Mathias (Maryland) and other tisan Senators; H.R. 12807, Diggs and

Republican House Members other Congressmen

Administration program

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Who may recover

Method of recovery.

1. Any person injured in person or property

because of race or color, while lawfully
exercising & Federal right, or attempt-
ing or advocating the exercise of such
a right or assisting another to exercise

such a right.
2. Any person injured to coerce him or

another person from seeking or advo-
cating equality free from discrimina-

tion.
3. In event of death, award could be made

to estate or dependents.
A new agency, the Indemnification Board,

is established in the Commission on Civil
Rights. The Commission would investi-
gate complaints and refer them to the
Board for hearing. After hearing, Board
could make a monetary award, payable

from Federal appropriations.
Wherever an award is made, the United

States would have the right to recover
in a civil suit (to its full constitutional
authority) from the persons responsible
for the wrongdoing. If the injury occurred
from action under color of law, recovery
could be against the State or local sub-
division.

Recovery from persons responsible for

wrongdoing.

Same as existing law, except where injury

results from action under color of law, recovery may be against State or political subdivision.

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All State and local governmental employees and applicants for employment would be covered by amendment of title VII of Civil Rights Act

of 1964. Enforcement would be by compliants to the Equal Employment Opportunity Commission or by suits filed by Attorney General or Indi

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NON DISCRIMINATION IN STATE AND
LOCAL GOVERNMENTAL EMPLOYMENT
(In 8. 2023 and H.R. 12807 only. No

similar provisions in H.R. 13323 or ad-
ministration program)
Coverage

Enforcement.

viduals under title VII.

REMOVAL OF STATE OR LOCAL POLICE

OFFICIALS

(In H.R. 12807 only. Not in S. 2923 or

administration program)

Basis for removal.

Method of removal..

Grave bodily injury or death inflicted in violation of police official's constitutional duty and because of the race or color of the victim. Would

also include willful failure to prevent such violence.
Due process hearing before Civil Service Commission, with appeal to Federal court of appeals. Order of Commission removing, suspending

or disqualifying official from service, enforceable in court of appeals.
A complaint may be filed by the victim or someone on his behall. The Attorney General may file a complaint 11 he certifies that it is of

general public importance, and the Civil Service Commission may allow the Attorney General to intervene in proceeding conducted pur-
suant to a victim's complaint.

Who may file complaint

HOUSING

(In administration program only. Not

in S. 2923, H.R. 12807, or H.R. 13323).
Acts prohibited.
Coverage.
Enforcement

All discrimination because of race, color, religion, or national origin in the sale, rental, or financing of housing would be prohibited. Coer

cion and intimidation intended to interfere with a person's right to obtain housing without discrimination also prohibited.
Property owners, real estate brokers, realtors, mortgage institutions, etc.
Enforcement would be by civil injunctive relief in a suit filed by the aggrieved party. Damages up to $500 could be allowed in the court's

discretion. The Attorney General could institute case against a pattern or practice of discrimination and could intervene in private sults.
Would not affect existing State or local housing laws prohibiting discrimination, but would invalidate any law permitting such discrim-

ination.
Would authorize Secretary of Housing and Urban Development to publish studies of housing discrimination, formulate proposed fair hous-

ing standards and codes, and to cooperate with governmental and private agencies in eliminating housing discrimination.

Effect on existing State laws.

Other provisions

Mr. AUTRY. Mr. Chairman, the next witness is Prof. Sylvester Petro, of New York University.

Senator Ervin. Professor Petro, we welcome you to the committee. I would like to make this statement. Prof. Sylvester Petro is an A.B. and J.D. graduate of the University of Chicago. He received his master of law degree from the University of Michigan. He is a member of the Illinois bar. He is the author of a number of articles in various legal publications and he is the author of two of the very finest books that have been written in our generation, one of them being "The Labor Policy of the Free Society," and the other being a book entitled "Power Unlimited” which dealt with and made an analysis of the findings of the McClellan committee. It is a great privilege, Professor Petro, to welcome you here, and the subcommittee certainly appreciates you taking the time to come down from New York to express your views concerning this bill, or such phases of it as you desire to discuss.

STATEMENT OF PROF. SYLVESTER PETRO, PROFESSOR OF LAW,

NEW YORK UNIVERSITY SCHOOL OF LAW

Mr. PETRO. Thank you very much, Senator Ervin, for having invited me down. I find that the subject to which I am going to address myself is one of the most fascinating that I have encountered in a long time, one of the most incredible as a matter of fact. I find it hard to this day to believe that in this country, which prides itself on freedom, so thoroughgoing an assault upon so intimately a significant freedom as the right of property should be possible.

I understand that there is a tremendous amount of confusion everywhere in the world, not only in this country today, concerning the meaning of key terms, such as freedom, voluntariness, compulsion, and so on. I sincerely hope, Senator, that I am going to make a contribution today toward the clarification of some of this confusion.

Freedom is a condition to which the right of private property is indispensable. If you tell me that I must sell my house to A instead of to B, or instead of taking it off the market, you have deprived me of my right of private property, and of my freedom. If you force me to sell without providing me with traditional safeguards, then you have not only deprived me of liberty and property, but you have done so without due process of law. The fundamental defect of title IV of Senate bill 3296 is that it proposes the most far reaching, the most offensive, and the most arrogant deprivation of property without due process in the history of the United States.

I address myself to title IV exclusively. I wish to emphasize this point, because title IV is it seems to me sharply distinguishable from the other titles of the bill. The other provisions propose to remedy denials of civil and personal rights. As such, they cannot be called defective in principle, though they might prove to be evil in policy and practice, and I believe that that is so, that they would prove evil in practice. Title IV, however, exercises me a great deal more. For it is a clear denial of right, vicious in both principle and practice, because it cannot possibly be administered in accordance with due process of law, and because it adds materially to the forces already at work to introduce the police state into this country. It is just possible that title IV will not work at all. And I shall try to explicate

my reasons for that statement before long. But if it does, if it does work, it will do so at the expense of liberty, property, and due process. I propose now to demonstrate the accuracy of this charge.

My first point is that freedom and the right of private property are one and the same thing.

It is customary among proponents of such legislation as title IV to praise it in the name of freedom. However, the briefest examination of the legislation and the barest acquaintance with the condition known as freedom will expose the error of identifying title IV with freedom.

Title I would force individual homeowners, real estate brokers, and financing institutions to sell and finance the sale of homes in circumstances in which they would prefer not to do so. Homeowners are told in section 403 that, no matter what their own preferences may be, they are compelled by law to sell, rent, or lease their dwellings without regard to the race, color, religion, or national origin of prospective purchasers or tenants. Brokers and financial institutions are subjected to corresponding and implementing deprivations of their rights. Sections 406 and 407, as we shall see, encourage the most aggressive possible prosecution of the policies of the legislation.

No great acumen and no tortured analysis are necessary in order to perceive how drastically title IV invades and restricts freedom and property, and therefore how incorrect and deceptive it is to identify title IV with freedom. A man is free precisely to the extent that his property rights are intact, because the condition of freedom and the condition of slavery are distinguished on the basis of the right of private property. A freeman owns himself and whatever he comes by lawfully. A slave owns nothing. He does not own himself, and, if he is in full slavery, he can own nothing else; not even his children are his. They belong to his master.

Ownership, however, means more than the possession of formal legal title to things. It means control. Control means authority over use, and over disposition as well. It means the condition in which one has the authority to follow his own preferences. Obviously it does not mean that one may use his property in a way which destroys the property of others. The rights and the freedom of others are entitled to the same status and condition as his. But that qualification poses no serious problem. It is easy to see that property rights and freedom cannot exist where some are permitted to invade the rights of others.

Legislation such as title IV is sometimes advocated on the theory that freedom involves the right to live wherever one chooses. Indeed, I infer that this is Senator Douglas' position. It is the position of people who speak in those terms that one is not free unless he is in a position to buy whatever he wants to buy. But this is an incorrect usage of the term "freedom”, and it is very easy to demonstrate the

For if I have the right to live wherever I choose, then someone else must have the duty to permit me to do so. Suppose I prefer my neighbor's home to my own. Have I the right to force him to sell to me? Obviously I do not-not in a free country, anyway. For if I did, I should possess, not freedom, but power. And if he were obliged to sell, it would be foolish to speak of him as a freeman with his property rights intact.

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