Federal Criminal Sanctions

THE STATUTES

Three months after Bobby Hall was fatally beaten in the town squareof Newton, Ga.,1 the Department of Justice presented its case before aFederal grand jury in Macon and obtained an indictment against SheriffClaude Screws, his deputy, and a town police officer. The statute underwhich they were indicted was an obscure, 70-year-old piece of Reconstruction legislation.2 This chapter will examine the effectiveness ofthat and related statutes2014the criminal Civil Rights Acts2014as remediesfor wrongs of the sort that Bobby Hall suffered. It will show the seriousdifficulties involved in the enforcement of these laws.

Violence under color of law

The principal Federal criminal sanction against police brutality andprivate racial violence is section 242 of the U.S. Criminal Code. Itprovides, in part: 3

Whoever, under color of any law, statute, ordinance, regulation, or

custom, willfully subjects, or causes to be subjected, any inhabitantof any State, Territory, or District to the deprivation of any rights,privileges, or immunities secured or protected by the Constitutionand laws of the United States . . . shall be fined not more than$ 1,000, or imprisoned not more than one year, or both.

Before the establishment of the Civil Rights Section in the CriminalDivision of the Department of Justice in 1939, the Federal Governmentused section 242 only twice42014once in 1882 5 and once in 1911.6

Section 242 proved to be a weak instrument for bringing the slayers

of Bobby Hall to justice. Sheriff Claude Screws and his codefendantswere charged with violating and with conspiring to violate 7 section 242.The jury returned a verdict of guilty, but on appeal the U.S. SupremeCourt reversed the convictions.8 The Court pointed out that to con-45

vict, the jury had "to find that petitioners had the purpose to deprivethe prisoner of a constitutional right." 9 Because of the difficulty ofproving a specific "purpose," this interpretation severely limited the usefulness of section 242 as a means of combating police brutality. WhenScrews was again brought to trial, he was acquitted.

Under section 242 the Government must establish three propositionsbefore it can obtain a conviction.

First, the Government must prove that the defendant acted "undercolor of ... law"; that is, that the defendant's actions were in someway official, as opposed to merely private acts. Under the 14th amendment, the Federal Government has no power to punish private acts ofviolence2014that power is reserved to the States. 10

But action "under color of law" is a broad notion. A State official

can violate a Federal, State, or local law, and still be acting under colorof law. 11 A private citizen, if he aids or abets a State or local officialin an act of police brutality, is acting under color of law. 12 And eveninaction of State officials, when there is an intentional failure to exercisean affirmative legal duty, 13 falls within the meaning of section 242.

To take a case in point2014on the night of April 2, 1949, Sheriff JohnWilliam Lynch of Dade County, Ga., together with three of his deputies,met a group of robed Ku Klux Klan members at Hooker Hill, a Negrosettlement. Sheriff Lynch and his men looked on while the Klansmenforced seven Negro men into automobiles. When one of the Negroescalled to the sheriff for protection, Lynch turned his back and walkedaway. The Klansmen then drove a short distance, stopped, took theNegroes from the cars and beat them. Later that night the Klansmenand Sheriff Lynch and his deputies met and mingled in the county seatof Trenton. At no time were any of the Klan members arrested. Indictments were subsequently returned against the four officers and anumber of the Klansmen, who were not officers. Evidence was introduced that Sheriff Lynch and his deputies had received notice of, andhad been attending, Klan meetings prior to the incident. The jury acquitted all but two of the defendants. Sheriff Lynch and one of hisdeputies were found guilty of violating section 242.

Even though Sheriff Lynch and his deputy were not present at thebeatings, the U.S. Court of Appeals for the Fifth Circuit affirmed a district court finding that the beatings had occurred under color of law. 14

And although the nonofficer Klansmen were acquitted by the jury, the

district court suggested that the jury could have found them equallyguilty as principals under section 242." The fact that Lynch and hisdeputy had refused to fulfill the duties of their offices as required byState law did not prevent their conviction, for the same nonfeasancewhich violated State law also violated the Constitution2014and hence section 242.

Second, the Government must establish that the defendant deprivedthe victim of one of his "rights, privileges, or immunities secured or protected by the Constitution and laws of the United States." The SupremeCourt has noted: 16

Those who decide to take the law into their own hands and act

as prosecutor, jury, judge and executioner plainly act to deprivea prisoner of the trial which due process of law guarantees him.

Courts have held that summary punishment 1? and coercion to force aconfession 18 are violations of the due process clause of the 14th amendment. The same clause also guarantees a fair trial. 19

Moreover, some courts have treated police brutality as a denial of the

equal protection of the laws, which is guaranteed by the i4th amendment. 20 A police officer who beats an individual because he is a memberof a racial minority clearly denies him equal protection. 21 However,as noted previously, 22 racial discrimination is not the only discriminationforbidden by the equal protection clause. A Federal circuit court ofappeals has observed: 23

Persons under arrest are entitled equally with other persons under

arrest to a trial by due process, and when found guilty, they aresubject to the same punishment. A person unlawfully beaten byan arresting officer is denied the right of due process of law andalso the right of equal protection of the laws.

Similarly, private racial violence, when it occurs with the approval orconnivance of law enforcement officials, deprives the victims of theirright to the equal protection of the laws. 24

Third, the Government must prove beyond a reasonable doubt that

the defendant had the specific intention of depriving the victim of oneof his Federal rights. From the viewpoint of the prosecution, this is themost troublesome requirement. The Screws decision warrants carefulanalysis because the element of specific intent in section 242 had itsgenesis in that decision, when the Supreme Court construed the word"willfully" to mean "with specific intent." *

In his appeal to the Supreme Court, Screws argued that he had beenconvicted under an unconstitutional statute in that section 242 did notprovide an ascertainable standard of guilt. 26 The basic evil in a criminal statute that lacks such a standard is, as the Court noted: 27

. . . the essential injustice to the accused of placing him on trial for

an offense, the nature of which the statute does not define andhence of which it gives no warning.

Screws' argument was a particularly serious challenge, because section242 forbids the willful deprivation of such i4th amendment rights asthe right to due process of law; and the right to due process of law comprises a vast body of law, which 28 2014

.. . is not always reducible to specific rules, is expressible onlyin general terms, and turns many times on the facts of a particularcase.

Moreover, definitions of constitutional rights are hammered out slowlyover the years, frequently in closely divided Supreme Court decisions. 29

How could an ascertainable standard of guilt be found in a statute that

purports to punish for denials of such vague and often undefined rights?This was the problem that concerned the Court. If section 242 wereto be held constitutional2014and the Court expressed a strong desire thatit should 30 2014such an ascertainable standard had to be discovered.

The Court found such a standard in the world "willfully." 31 Observing that in 1909 Congress had inserted that term into section 242to make the statute "less severe," s2 the Court decided that "willfully"could be construed to require "a specific intent to deprive a person of aFederal right made definite by decision or other rule of law." 33 So

interpreted, the specificity lacking in the wording of the statute would,in effect, be supplied by the criminal purpose of the violator himself.As the Court explained: 34

. . . where the punishment imposed is only for an act knowingly

done with the purpose of doing that which the statute prohibits, theaccused cannot be said to suffer from lack of warning or knowledge that the act which he does is a violation of law.

Furthermore, as the Court pointed out, the violator would have ampleknowledge of what conduct was prohibited by the statute 3B 2014

. . . wilfull violators of constitutional requirements, which havebeen defined, certainly are in no position to say that they had noadequate advance notice that they would be visited with punishment. When they act wilfully in the sense in which we use theword, they act in open defiance or in reckless disregard of a constitutional requirement which has been made specific and definite.When they are convicted for so acting, they are not punished forviolating an unknowable something.

Thus, the Court held, in effect, that to violate section 242, the accusedmust have (i ) a certain knowledge and (2) a certain purpose. On theone hand, the Court required that the accused know, or should know(because the matter is knowable), 86 that his victim has a particular

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defined constitutional right; on the other hand, the Court stated that theaccused must act either "in open defiance or in reckless disregard" of thatparticular constitutional right.

The latter requirement2014that is, the element of purpose2014dealt withthe problem of the unintentional or well-motivated deprivation...