Article by Frederick M. Lawrence
[T]he most extensive and frequent losses of liberty are not due either to court or executive, but to the failure of the force of the government to protect men from violence and mobs. The history of liberty could almost be written in terms of mobs that “got away with it,” and were never punished—from the Tory-hunters of 1778 to the Ku Klux Klan of 1927.
Try again. Fail again. Fail better.
More than any event in the past quarter century, the videotaped beating of Rodney King focused the nation's attention on federal civil rights crimes. Even as post-acquittal rioting enveloped Los Angeles, attention was turned to the potential for a federal civil rights prosecution of the officers who beat King.
The beating of King on March 3, 1991 by officers of the Los Angeles Police Department riveted public attention in an extraordinary way. It is not clear, however, precisely which aspects of the beating gave rise to this focus. The King incident may be seen as a case of police brutality; that is, as an excessive use of official force which transcends the race of both the officers and the victim. Alternatively, the King incident may be seen as a case of racially motivated violence, a beating that occurred because the victim was black. In fact, the beating of Rodney King may have involved aspects of both. Consideration and analysis of these alternative formulations, however, is critical to understanding what took place on March 3, 1991 and the proper response of federal law enforcement.
Certain crimes-racially-motivated violence and police brutality included-are historically grouped together as “civil rights crimes.” This Article examines the development of the various categories of civil rights crimes and evaluates their common and disparate elements. This Article also analyzes the problems that have arisen in the interpretation of civil rights crimes and proposes an interpretive framework that focuses on the mens rea required for those crimes. The proposals have two goals, one narrow and one broad. The narrow goal is to provide an interpretation of the federal civil rights crimes statutes that is more coherent than the existing interpretations. The broader goal is to propose a general systematic approach to understanding civil rights crimes.
Part I lays the groundwork for these goals through an examination of the historical background of federal criminal civil rights statutes. For the broader goal, this account demonstrates that there are three categories of crimes that compose the universe of civil rights crimes: (i) racially motivated violence, or “bias crimes;” (ii) interference by non-state officials with the exercise of certain political or civil rights or “rights interference crimes,” and (iii) unjustifiable use of force under color of law such as police brutality, or “official crimes.” These categories are rooted in the circumstances surrounding congressional enactment of the first criminal civil rights statutes in the decade following the Civil War. Although the contemporary field of civil rights crimes involves both federal and state law, the categories that first arose through interpretation and application of the Reconstruction-era federal statutes still dominate.
For the narrower purpose of interpreting the federal civil rights statutes, Part I, largely through a chronological study of the development of civil rights crimes, advances two propositions. First, the Reconstruction-era Congresses that passed the first civil rights statutes saw criminal sanctions as a critical part of the civil rights enforcement arsenal necessary to protect newly freed blacks and to guard against politically motivated violence against southern Unionists. Technical arguments regarding the precise legislative intent behind any particular provision may be impossible to resolve, but such disputes are also largely irrelevant. The general intent behind the criminal civil rights laws was to provide vigorous enforcement in order to address a compelling social ill.
Second, an analysis of the actions of the judicial and executive branches of the federal government over the next half-century reveals a more narrow view of civil rights crimes than intended by the drafters of those laws. From the beginning, two concerns have driven the development of federal criminal civil rights law, sometimes explicitly, yet often implicitly. These concerns are the “vagueness problem” and the “federalism problem.” Both problems raise legitimate issues that must be addressed in order to obtain a coherent theory of federal criminal civil rights enforcement. Present doctrine has failed to address these problems adequately. Vagueness concerns arise in all criminal law because of the tension between the specificity and clarity required of criminal statutes and the need for discretion in the investigation and prosecution of criminal behavior. These concerns are especially pronounced in the area of civil rights crimes because of the amorphous and fluid meaning of the key terms used in the federal civil rights crimes statutes.
The federalism problem relates to the respective roles and limits of state and federal criminal law enforcement. Given the broadest construction, federal civil rights statutes could expand federal criminal law into all, or practically all, areas of traditional state criminal law. The federalism problem is not strictly about the limits of constitutional authority concerning federal criminal jurisdiction. Clearly these constitutional boundaries do play some role in the discussion; the starting point for judicial or legislative analysis is often a determination of the limits of federal authority under the Reconstruction-era amendments to the Constitution. The federalism problem, however, goes beyond merely locating constitutional boundaries to consider such prudential issues as the optimal allocation of the criminal enforcement function in our federal system.
Part II explores the vagueness and federalism problems in the context of Screws v. United States. The depth and detail of the discussion of Screws is warranted for several reasons. First, Screws is the most significant criminal civil rights case decided by the Supreme Court since the end of Reconstruction and still represents the touchstone for federal criminal civil rights doctrine. Second, the solutions proposed to the vagueness and federalism problems by the plurality and the main dissenting opinion in Screws continue to produce a grudging and confused interpretation of civil rights crimes by the federal courts. Finally, the solutions proposed in that case are flawed. In short, the opinions in Screws are inadequate both for the tasks they attempted, and, the subsequent reliance that has been placed upon them.
Part III proposes a solution to the vagueness and federalism problems that provides a far more useful definition of federal civil rights crimes. The focus of the solution is on the requisite state of mind for criminal civil rights liability. Criminal liability for civil rights crimes requires a two-tiered mens rea analysis. First, there must be culpability with respect to the commission of the underlying crime, for example, the assault. Second, there must be the “civil right” mens rea, that is, the intent to violate a constitutionally protected right in the case of “official crimes” and “rights interference crimes,” or racial motivation in “bias crimes.” The conclusions drawn from application of this two tiered framework challenge the implicit assumption that a single culpability rule should govern all civil rights crimes. I argue that no single rule need apply to all civil rights crimes. Two-tiered mens rea, while applicable in cases involving a private actor, ought not to be required in cases involving a defendant who is a public official.
In accomplishing the “narrow goal” of this Article, the two-tiered mens rea framework will be applied to federal civil rights crimes. Much of the discussion, however, applies with equal force to state criminal civil rights enforcement, and to interpretation of civil rights generally. In the final analysis, it may be sufficient for this Article to address the challenge articulated by the Chief of the Civil Rights Section of the Department of Justice, Victor Rotnem, toward the end of World War II. “ To cut away the briers and brambles of legal technicalities, to make the Criminal Civil Rights laws once again sharp, effective instruments for the protection of human rights.”
About the Author
Frederick M. Lawrence. Associate Professor of Law, Boston University. B.A., Williams College; J.D., Yale Law School.
Citation
67 Tul. L. Rev. 2113 (1993)