I will ask you if, under that statute, any American of any race who is denied any right which he has under the Constitution or laws of the United States cannot recover damages in Federal district courts of all public officials and private individuals who conspire to deprive him of such right. Attorney General KENNEDY. I believe that is correct, Senator. Senator ERVIN. So, under those two statutes, any American of any race who is deprived by any State or local official of any rights, under the Constitution or laws of the United States, has ample remedies to vindicate his rights if he is willing to have his rights adjudicated by the same laws which apply to all other men. Attorney General KENNEDY. He has the remedies that you describe, Senator. Senator ERVIN. I will call attention to certain statutes which are available to the Department of Justice in this connection. The first to which I will call your attention is section 242 of title 18 of the United States Code, which reads as follows: Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, territory, or district to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties on account of such inhabitant being an alien, or by reason of his color or race than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than 1 year, or both. I will ask you if the power to invoke that law does not rest in the Attorney General of the United States and the Department of Justice. Attorney General KENNEDY. That is correct, sir. Senator ERVIN. I will ask you, under that law, if that law does not provide punishment by imprisonment for as much as 1 year, and a fine of as much as $1,000, or both, for any State or local official who denies any qualified citizen of any race of his right to register to vote? Attorney General KENNEDY. That is correct, sir. Senator ERVIN. Furthermore, I will ask you if that statute is not even broader than that, and if it does not subject any State or local official to the punishment it prescribes, if he willfully denies any person within the borders of the United States of any right or privilege which he is entitled to under the Constitution and laws of the United States? Attorney General KENNEDY. I believe that is correct, Senator. Senator ERVIN. I call your attention to section 241 of title 18 of the United States Code, which bears the heading "Conspiracy Against Rights of Citizens," and which reads as follows: If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highways, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than $5,000 or imprisoned not more than 10 years, or both. I ask you if the courts haven't held, under this statute, that any State or local official who conspires with any other person to deprive any qualified American of any race of his right to vote or of any other right or privilege secured to him by the Constitution or laws of the United States is subject to that punishment? Attorney General KENNEDY. I believe that is correct, Senator. Senator ERVIN. I now invite your attention to section 371 of title 18 of the United States Code. I will read the parts which are relevant : If two or more persons conspire and I will omit some words that are not relevant to the question to commit any offense against the United States, and one or more of such persons do any act to effect the object of such conspiracy, each shall be fined not more than $10,000, or imprisoned not more than 5 years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor. I will ask this question: Have not the Federal courts held that, under this statute, any State or local official who conspires with any third person to violate section 242 of title 18 of the United States Code, is guilty of a criminal offense, and is punishable as described in this statute? Attorney General KENNEDY. That is correct, sir. Senator ERVIN. So the Department of Justice has at its disposal now at least three criminal statutes under which they can send to Federal prison any State or election official who, out of his own head or imagination or in pursuance of a conspiracy with another, deprives any qualified American citizen of any race of his right to vote or of any other right or privilege secured to him by the Constitution or laws of the United States. Attorney General KENNEDY. If the jury found him guilty of such an offense, that is right, sir. Senator ERVIN. Certainly a man ought not to be sent to prison unless the jury finds him guilty? Attorney General KENNEDY. I didn't hear you add that. Senator ERVIN. I am glad to hear that. I am also glad to hear that the U.S. Department of Justice has such veneration of trial by jury. I am also glad to know that the Founding Fathers had such a veneration for trial by jury that, when they wrote the Declaration of Independence, they gave as one of the reasons for breaking away from England that England had deprived the colonists in many cases of the right to trial by jury. I would like to ask you if the Department of Justice has instituted any prosecution against anybody in any district court anywhere in the United States under any one of these three statutes. Attorney General KENNEDY. Any of the criminal statutes, Senator? Senator ERVIN. Yes. Attorney General KENNEDY. No, we have not. Senator ERVIN. Yet these three statutes Attorney General KENNEDY. Senator, I think what we are referring to specifically is in the field of civil rights. To make sure my answer is completely understood, we have instituted some cases, criminal cases, involving vote fraud, which would come under some of those statutes. Senator ERVIN. But I will ask you if the Department of Justice has instituted any prosecution against any election official anywhere in the United States or brought him to punishment for willfully depriving any qualified voter of his right to vote under these criminal statutes? Attorney General KENNEDY. You mean since the statutes have been enacted? Senator ERVIN. No; since you have taken over as Attorney General. Attorney General KENNEDY. No; we have not. Senator ERVIN. And so far as you know, your immediate predecessors did not, did they? Attorney General KENNEDY. I think you mentioned that last time. Senator ERVIN. The Department of Justice has other statutes at its disposal in the voting rights field, hasn't it? Attorney General KENNEDY. That is correct. Senator ERVIN: And these statutes authorize the Department of Justice to bring civil actions in equity to secure the voting rights of any qualified person who is threatened with the denial of such rights, do they not? Attorney General KENNEDY. That is right. Senator ERVIN. And these statutes are Public Law 85-315, which is called the Civil Rights Act of 1957, and Public Law 86-449, which is usually called the Civil Rights Act of 1930, are they not? I mean 1960. Attorney General KENNEDY. 1960. Senator ERVIN. Mr. Chairman, I would like to have these two statutes printed in the record at this point. The CHAIRMAN. It is so ordered. (The documents referred to follow :) To provide means of further securing and protecting the civil rights of persons within the jurisdiction of the United States. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, PART I-ESTABLISHMENT OF THE COMMISSION ON CIVIL RIGHTS SEC. 101. (a) There is created in the executive branch of the Government a Commission on Civil Rights (hereinafter called the "Commission"). (b) The Commission shall be composed of six members who shall be appointed by the President by and with the advice and consent of the Senate. Not more than three of the members shall at any one time be of the same political party. (c) The President shall designate one of the members of the Commission as Chairman and one as Vice Chairman. The Vice Chairman shall act as Chairman in the absence or disability of the Chairman, or in the event of a vacancy in that office. (d) Any vacancy in the Commission shall not affect its powers and shall be filled in the same manner, and subject to the same limitation with respect to party affiliations as the original appointment was made. (e) Four members of the Commission shall constitute a quorum. RULES OF PROCEDURE OF THE COMMISSION SEC. 102. (a) The Chairman or one designated by him to act as Chairman at a hearing of the Commission shall announce in an opening statement the subject of the hearing. (b) A copy of the Commission's rules shall be made available to the witness before the Commission. (c) Witnesses at the hearings may be accompanied by their own counsel for the purpose of advising them concerning their constitutional rights. (d) The Chairman or Acting Chairman may punish breaches of order and decorum and unprofessional ethics on the part of counsel, by censure and exclusion from the hearings. (e) If the Commission determines that evidence or testimony at any hearing may tend to defame, degrade, or incriminate any person, it shall (1) receive such evidence or testimony in executive session; (2) afford such person an opportunity voluntarily to appear as a witness; and (3) receive and dispose of requests from such person to subpena additional witnesses. (f) Except as provided in sections 102 and 105 (f) of this Act, the Chairman shall receive and the Commission shall dispose of requests to subpena additional witnesses. Civil Rights Release. (g) No evidence or testimony taken in executive session may be Evidence or released or used in public sessions without the consent of the Com- testimony. nission. Whoever releases or uses in public without the consent of the Commission evidence or testimony taken in executive session shall be fined not more than $1,000, or imprisoned for not more than one year. (h) In the discretion of the Commission, witnesses may submit brief and pertinent sworn statements in writing for inclusion in the record. The Commission is the sole judge of the pertinency of testimony and evidence adduced at its hearings. 71 Stat. 635. Witness fees. Reports to President and Termination of (i) Upon payment of the cost thereof, a witness may obtain a transcript copy of his testimony given at a public session or, if given at an executive session, when authorized by the Commission. (j) A witness attending any session of the Commission shall receive $4 for each day's attendance and for the time necessarily occupied in going to and returning from the same, and 8 cents per mile for going from and returning to his place of residence. Witnesses who attend at points so far removed from their respective residences as to prohibit return thereto from day to day shall be entitled to an additional allowance of $12 per day for expenses of subsistence, including the time necessarily occupied in going to and returning from the place of attendance. Mileage payments shall be tendered to the witness upon service of a subpena issued on behalf of the Commission or any subcommittee thereof. (k) The Commission shall not issue any subpena for the attendance and testimony of witnesses or for the production of written or other matter which would require the presence of the party subpenaed at a hearing to be held outside of the State, wherein the witness is found or resides or transacts business. COMPENSATION OF MEMBERS OF THE COMMISSION SEC. 103. (a) Each member of the Commission who is not otherwise in the service of the Government of the United States shall receive the sum of $50 per day for each day spent in the work of the Commission, shall be reimbursed for actual and necessary travel expenses, and shall receive a per diem allowance of $12 in lieu of actual expenses for subsistence when away from his usual place of residence, inclusive of fees or tips to porters and stewards. (b) Each member of the Commission who is otherwise in the service of the Government of the United States shall serve without compensation in addition to that received for such other service, but while engaged in the work of the Commission shall be reimbursed for actual and necessary travel expenses, and shall receive a per diem allowance of $12 in lieu of actual expenses for subsistence when away from his usual place of residence, inclusive of fees or tips to porters and stewards. DUTIES OF THE COMMISSION SEC. 104. (a) The Commission shall— (1) investigate allegations in writing under oath or affirmation that certain citizens of the United States are being deprived of their right to vote and have that vote counted by reason of their color, race, religion, or national origin; which writing, under oath or affirmation, shall set forth the facts upon which such belief or beliefs are based; (2) study and collect information concerning legal developments constituting a denial of equal protection of the laws under the Constitution; and (3) appraise the laws and policies of the Federal Government with respect to equal protection of the laws under the Constitution. (b) The Commission shall submit interim reports to the President and to the Congress at such times as either the Commission or the President shall deem desirable, and shall submit to the President and to the Congress a final and comprehensive report of its activities, findings, and recommendations not later than two years from the date of the enactment of this Act. (c) Sixty days after the submission of its final report and recommendations the Commission shall cease to exist. |