TABLE OF CONTENTS

INTRODUCTION

I. NATURE OF THE PROBLEM

II. THE SCOPE OF THE RECOMMENDATIONS

III. THE EXISTING REMEDIES AND SPECIFIC RECOMMENDATIONS FOR STRENGTHENING THEM

A. Definition of Civil Rights Activity

B. Habeas Corpus

C. Removal

D. Injunctive Relief

IV. EFFECT OF PROPOSED REVISIONS ON AN ACTUAL CASE

CONCLUSION

TABLE OF CASES

APPENDIX A-Proposed Bill

APPENDIX B-Present Text of Relevant Statutes with
Proposed Revisions Included

65-506 0-66-pt. 2- 3

Proposal for a Federal Civil Rights
Procedure Act

Summary of Report and Recommendations

with Proposed Bill

INTRODUCTION

In the spring and summer of 1963, members of this Association, as citizens and more particularly as lawyers, were greatly disturbed by news reports out of the South. These reports told of repeated instances in many communities in which the efforts of Negroes to exercise civil rights claimed, and in many cases wellestablished, under the Constitution and Federal laws were being frustrated by the use against them of the processes of local and State law enforcement. These processes included arrest, physical coercion by the police, denial of or onerous conditions on bail, rejection of Federal claims at trial and on appeal, and delays or harassment at various stages of the proceedings.1 That the local and State law enforcement processes were being misused in many instances was confirmed by the decisions of the Federal courts when these or related cases finally reached a hearing in a Federal

court.

It was also apparent from such decisions that the ability of these defendants to have their Federal claims passed upon by a Federal court promptly and decisively was severely restricted by the out-of-date wording of the applicable Federal remedial statutes, some of which have come down unchanged from Reconstruction legislation, and in particular by the narrowing interpretations that had been given these statutes by the Supreme Court in the last decades of the nineteenth century in civil rights and other cases. Subsequent developments in the recognition and expansion of the substantive civil rights of Negroes by the Court and the Congress, particularly in the period since the School Segregation Cases of 1954, had not been accompanied by equivalent re-thinking of Federal remedial law. The problem became acute

in the last several years, as Southern Negroes, aided by civil rights workers from all sections, have stepped up the pace of demands for realization of their substantive civil rights in all communities by public attempts to exercise those rights and by demonstrations and similar activities in public places to protest the denial thereof.

Accordingly, the then President of the Association, Herbert Brownell, appointed this Special Committee on Civil Rights Under Law, charged with the primary duty of conducting a study of the relevant Federal remedial statutes available to protect civil rights and with recommending revisions found necessary or advisable for their modernization.2 The work of the Committee was informed by an extensive legal and factual research study made under contract by a professional staff, financed by foundation grants. The detailed study (to be referred to herein as "the Staff Study") is presently undergoing editorial revision with a view to publication in book form.

In view of the fact that the problem with which this study is concerned has continued to be severe, despite the further expansion given to the scope of substantive civil rights by the Congress in the Civil Rights Act of 1964 and the Voting Rights Act of 1965, the Executive Committee of the Association has authorized the release of the present Recommendations and Summary of Report at this time, in order that the Congress and the public may be informed of the recommendations of the Committee, including the changes in Federal legislation it proposes.

I. THE NATURE OF THE PROBLEM

Many Americans have been arrested, jailed, tried and convicted by local authorities only because they have tried to exercise rights granted by the Constitution and laws of the United States. In recent years the offenses charged have not generally been based upon statutes or ordinances avowedly commanding racial segregation, but upon apparently neutral enactments, such as those prohibiting disorderly conduct, resisting arrest, obstructing sidewalks, breach of the peace, and similar alleged offenses.

Ultimately, however, the facts proved in these cases have generally boiled down, as the Staff Study shows, to activity protected against State interference by the Fourteenth Amendment, together with the First Amendment and Federal civil rights statutes. And ultimately many of the defendants have been vindicated on the basis of Federal law, but usually not until a hearing was secured in a Federal court. Under the existing restrictions upon the applicability of Federal remedial statutes, it may require two to three years for a State criminal case to reach a Federal hearing, either in the Supreme Court on direct review of the State conviction or in a District Court on petition for habeas corpus. Meanwhile, persons who ultimately will be vindicated are incarcerated or subjected to harsh bail restrictions, and they and others similarly situated are discouraged from asserting their legitimate substantive civil rights demands.

Constitutional history teaches that Federal rights require the backing of Federal remedies to assure their vindication in States hostile to such Federal rights. It may be hoped that in the generality of cases the State courts will recognize their concurrent responsibility for enforcement of such rights and thus make unnecessary widespread use of the Federal court remedies. However, it is clear, upon a review of the reported cases in which Federal substantive civil rights have been claimed as defenses against State criminal prosecutions for activity asserting such rights, that local and State authorities in some areas have taken unfair advantage of the delays and other difficulties of invoking the ultimate jurisdiction of the Supreme Court to review such State criminal prosecutions. Hence, it became apparent to the Committee early in its deliberations that remedies in the Federal courts at the local level had to be strengthened to assure justice, speed and finality in the vindication of Federal defenses in criminal prosecutions for civil rights activity.

The focus of the Staff Study was upon the three classic means of 'Federal intervention to protect Constitutional and other Federal rights against State attack, each long recognized in Federal statutes: habeas corpus, injunction of State criminal proceedings

and removal of State criminal proceedings to a Federal District Court. With respect to each remedy, as will be discussed below, various restrictions of statutory construction or judicial doctrine were found to limit its full effectiveness as a means of assuring the desirable justice, speed and finality in achieving the protection of substantive civil rights. The problem is essentially one of modernizing the law governing Federal remedies so as to make them effective to prevent the exercise of Federally granted substantive civil rights within a State from being unlawfully frustrated by means of State action in the form of criminal prosecution. These statutory remedies, and the revisions proposed by this Committee, do not relate to purely individual invasion of individual rights, but only to wrongful State action.

The Committee concluded that precedents in the case law make statutory change unnecessary with respect to habeas corpus, that statutory expansion of Federal removal jurisdiction is imperative and is the most salutary approach to the problem presented, and that a narrowly limited statutory expansion of Federal injunctive jurisdiction is also essential for complete relief.

II. THE SCOPE OF THE RECOMMENDATIONS

After reviewing the text, the legislative history, and the judicial interpretations of the relevant statutes, the Committee determined that it was advisable to make fresh definitions of the conditions under which Federal courts should intervene in the State criminal process in this type of case. Tinkering with the imprecise nineteenth-century wording of the Reconstruction legislation, which stands encumbered with the gloss of judicial interpretations dating from an era when the courts were not in sympathy with expansive recognition of civil rights, was recognized as unsatisfactory in principle.

Moreover, the meaning of these old enactments is the subject of pending litigation in numerous civil rights cases. The Committee believed that the Congress would not want to prejudice the positions of the parties therein by changing the existing statutory wording. Thus, where the Committee recommends statutory