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There is small need to catalog the brutal crimes committed in recent years against Negroes seeking to exercise rights of citizenshipand against whites supporting them. Just to cite the names of some of the victims is enough:
Medgar Evers, Andrew Goodman, James Chaney, Michael Schwerner, Lemuel Penn, James Reeb, Mrs. Viola Liuzzo, Jonathan Daniel, Vernon Dahmer.
It is not only murders-or injuries or bombs or bullets--that must concern us. For as the President noted, the effect of such violence goes far beyond individual victims. It generates widespread intimidation and fear-fear of attending desegregated schools, using places of public accommodation, voting, and other activities in which Federal law and American citizenship demand equality.
Where the administration of justice is color blind, perpetrators of racial crimes will usually be appropriately punished and would-be perpetrators deterred by local authorities.
In some places, however, local officials either have been unable or unwilling to prosecute crimes of racial violence or to obtain convictions in such cases even where the facts seemed to warrant conviction.
But the need for effective Federal criminal legislation to deal with the problem of racial violence does not arise solely from a malfunctioning of State or local administration of the criminal law. Crimes of racial violence typically are directed to the denial of affirmative Federal rights and thus reflect an intention to flout the will of the Congress as well as to perpetuate traditional racial customs.
The principal Federal criminal statutes dealing with crimes of racial violence are sections 241 and 242 of the Federal Criminal Code. Two months ago, the Supreme Court decided two cases, United States 5. Price and United States v. Guest, involving the construction of these statutes.
The Court's decision in Price, concerning the indictment of private individuals and public officials in connection with the killing of the three civil rights workers in Neshoba County, Miss., establishes that when public officials, or private individuals acting in concert with public officials, interfere with the exercise of 14th amendment rights, Section 241 is violated.
In the Guest case, however, which involved the highway slaying of Lemuel Penn, only private individuals had been indicted. The Court sustained a part of the indictment charging a private conspiracy to interfere with the right to travel interstate--a distinctly Federal right not flowing from the 14th amendment.
But the part of the indictment charging a conspiracy of private persons to interfere with 14th amendment rights (in that case, the right to use highways and other State facilities without discrimination) appears to have been found sufficient only because of certain allegations of official involvement in the conspiracy, even though no public officials had been indicted. The majority and concurring opinions leave in doubt whether Congress, when it enacted section 241 in 1870, intended to reach private interference with 14th amendment rights.
What we should take particular note of, however, in the Guest decision is that six Justices expressly said that Congress does have the power under section 5 of the 14th amendment to reach such purely private misconduct.
Another defect in the present law stems from the fact that section 241 is worded in general terms. Because it is not always clear just what rights are encompassed by the 14th amendment, the Supreme Court has read into this statement the requirement that the prosecution prove a "specific intent” by the defendant to deprive the victim of a particular 14th amendment right. Commenting on this "specific intent” requirement in his concurring opinion in the Guest case Mr. Justice Brennan said:
Since the limitation on the statute's effectiveness derives from Congress failure to define, with any measure of specificity, the rights encompassed, the remedy is for Congress to write a law without this defect * * * [if] Congress desires to give the statute more definite scope, it may find ways of doing so.
Title V is intended to achieve four main objectives:
First, it would make it a crime for private individuals forcibly to interfere, directly or indirectly, with participation in activities protected by Federal laws, including the 14th amendment-whether or not State action is involved. It would also protect these activities against interference by public officials.
Second, it would specify the different kinds of activity which are protected-thus giving clear warning to lawless elements that if they interfere with any of these activities, they must answer to the Federal Government.
Third, it would protect not only Negroes and members of other minority groups, but also civil rights workers and peaceful demonstrators seeking equality.
Fourth, it would provide a graduated scale of penalties depending upon whether bodily injury or death results from the interference.
Title V prohibits injury, intimidation, or interference, based on race, color, religion, or national origin that occurs while the victim is actually engaged in protected activity; for example, a person assaulted while he is standing in line at the polls or swimming at a public pool.
This title gives the same protection to persons seeking to engage in protected activities; for example, entering a restaurant, enrolling a child in school, or applying for a job.
Title V also covers interference that occurs either before or after a person engages in protected conduct but which is related to that conduct. This would include, for example, reprisals or threats against a Negro after he inspected a home in an all-white neighborhood.
This title also would cover interference with persons performing duties in connection with protected activities; for example, a public school official implementing a desegregation plan or a welfare official distributing surplus commodities.
Title V would not require proof of "specific intent” as is required under 18 U.S.C. 241 by the decision in Screws v. United States (325 U.S. 91 (1945)). This is so primarily because, unlike section 241,
itle V clearly describes the prohibited conduct and stands by itself. No reference to the 14th amendment or any other law would be required in order to determine what conduct is prohibited.
We have recognized that violence which merely happens to occur at or near the time that a person engages in a federally protected activity, does not necessarily fall within Federal jurisdiction. For this reason, section 501(a)—which prohibits interference that occurs while a person is actually engaging or seeking to engage in protected activity-applies only to racially motivated conduct.
Similarly, under sections 501 (b) and (c)---which cover reprisals and attempts to deter protected activity--the jury would have to find that the defendant's purpose was to deter persons from engaging in protected activity or to punish persons who have done so.
Title V covers one situation in which the victim of the interference need not himself have had anything to do with any kind of civil rights activity—the terrorist act in the truest sense. This is the case where there is an indiscriminate attack on a Negro simply because he is a legro and for the purpose of discouraging Negroes generally from engaging in the activities specifically described in title V. Such incidents are not rare and when they occur they are often silently effective in generating wide intimidation.
Mr. Chairman, I hope that this discussion has made clear the need for each title of this bill.
I recognize fully the mindfulness which you and the members of this subcommittee have that legislation of this character be scrupulously reviewed. Proposals of this sort deserve conscientious and exacting analysis in open hearings.
But circumspection and searching analysis do not require an indefinite stay of judgment or the invoking of a hypothetical future more seasonable for action.
There seems to be no reason why we cannot in the weeks immediately ahead fully ventilate all questions, consider all honest doubts and ambiguities, and clarify public understanding. We stand prepared-morning, afternoon, and evening, weekday and weekend to assist the committee and the Congress in the completion of this task.
We cannot do less in attempting to compensate for decades of neglect with legislation that is necessary, constitutional, and timely. Thank you, Mr. Chairman.
Senator ERVIN. Thank you, Mr. Attorney General. We will recess now until 10:30 tomorrow. I am prepared to give the name of this hospital. Attorney General KATZEN BACH. Yes, sir. Senator ERVIN. And no answer has been given to me. As a matter of fact, a full explanation was given to the Department on April 8, 1966, and at that time they promised to give me an answer, but for some reason or other they are too busy to do it.
Attorney General KATZENBACH. You will have an answer tomorrow morning at 10:30, Mr. Chairman.
Senator Ervin. Fine, I hope so. I will supply the name. Attorney General KATZENBACH. Yes, sir; I understand. (Off the record.) Senator ERVIN. Thank you. We will recess now until 10:30 in the morning.
(Whereupon, the subcommittee recessed at 1:05 p.m. until 10:30 a.m., Tuesday, June 7, 1966.)
TUESDAY, JUNE 7, 1966
Washington, D.C. The subcommittee met, pursuant to recess, at 10:30 a.m., in room 2228, New Senate Office Building, Senator Samuel J. Ervin, Jr., presiding.
sent: Senators Ervin, Kennedy of Massachusetts, Scott, and Javits.
Also present: George Autry, chief counsel; H. Houston Groome, Jr., Lawrence M. Baskir, and Lewis W. Evans, counsel; and John Baker, minority counsel. Senator ERVIN. The subcommittee will come to order.
Mr. Attorney General, as I said in my statement yesterday, despite the cowardly crimes of a few individuals and despite the concurring advisory opinion by some members of the Supreme Court to the contrary, the language, the legislative history and the interpretations of the 14th amendment make it clear that Congress cannot make punishable as crimes the acts of private citizens. Nevertheless, it was brought to our attention again yesterday that some action is in order.
Therefore, I intend to offer a constitutional amendment as a substitute for title V of the proposed Civil Rights Act of 1966, presently entitled "Interference With Rights."
I do this first because I abhor violence or threats of violence against anyone, and I do not believe any person should be deprived of his constitutional rights because of his creed or color by violence or threats of violence.
In the second place, I do this to save the American people from having their Constitution amended by the Supreme Court.
Thirdly, I want to save the administration from having to urge the Supreme Court to usurp and exercise the power to amend the Constitution in violation of the explicit wording of the 14th amendment.
The text of the amendment is as follows: Resolved by the Senate and House of Representatives of the United States of America in ('ongress assembled, two-thirds of each House concurring therein, That the following article is proposed as an amendment to the Constitution of the United States, it shall be granted to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States: Article SECTION 1. The Congress shall have the power to make punishable as crimes the activities and conspiracies of individuals designed to prevent any person, by violence or threats of violence, from exercising any right secured to him by the Constitution or laws of the United States on account of race, or creed, or national origin.
Sec. 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the