!

failed to indict. This happened in the notorious Castor Oil case in West Virginia,' but such unusual tactics are reserved for cases where violations are clear but local feeling is such as to prevent the grand jurors from being objective. Of course, usually in such cases there is even less chance for a petit jury to be sympathetic to the case, though be it noted that in the Castor Oil case the petit jury convicted even where the grand jury had failed to indict. This, again, indicates some of the inherent complexities in the civil-rights field and once more illustrates the need for the existence of the Civil Rights Section to advise and counsel and give the benefit of its more than 16 years of experience in the field.

The Section often prepares indictments at the request of United States attorneys. It is glad to perform this function and experience has shown, particularly in areas where civil-rights prosecutions are rare, that the proedure is well worth the effort. In any event, it is always suggested that United States attorneys submit indictment forms in each case to the Civil Rights Section for its approval prior to grand-jury action.

Most civil-rights cases, as previously noted, are tried by the United States attorneys. On occasion, however, there may be a need for a special prosecutor, and appropriate arrangements will be made through the Civil Rights Section. In such instances, the services of an attorney from the Criminal Division trial staff can be secured, or, in unusual and highly important cases, arrangements may be made for securing the services of a special prosecutor from the particular area. This is the exception and not the rule, however, and usually the United States attorney will handle the prosecution himself. If memorandums of law or briefs are needed, the Civil Rights Section will, if time permits, prepare such material.

Many appellate briefs have been prepared in the Civil Rights Section, and, again, it stands ready to prepare or assist the United States attorney in such function if requested to do so.

We have heretofore considered the more or less direct activities of the Civil Rights Section. In addition, however, the Section performs other functions. Amicus curiae briefs where important civil-rights questions occur may be prepared by the Civil Rights Section. The Section prepared such amicus briefs, for example, in a case before a special three-judge Federal court in New Mexico' and in a case before the Arizona Supreme Court. The cases involved the right of Indians to vote in those States. The Section also prepared an amicus brief in support of the right of an Arkansas school board to be free from interference with its public-school desegregation program."

10

The Civil Rights Section also acts as a sort of informal clearinghouse for civil-rights problems which do not involve criminal aspects. It is not infrequently called upon to advise with respect to matters involving human rights, such as genocide, in the United Nations area. The Civil Rights Section has also conferred with representatives of the newly organized Governments of Japan and Germany who were studying civil-rights problems and the approach to them in this country.

Over and above the performance of the regular work of the Section, various members have voluntarily performed valuable research in this technical field, much of which has been published in law journals over the years."

In other ways, general functions not of a criminal nature are also performed by the Section, such as analyzing proposed legislation and making suggestions with respect thereto. The Civil Rights Section has frequent occasion to confer with representatives of the various organizations interested in civil-rights problems.

The statutes administered by the Section are divided roughly into three groups, as follows: (1) the civil rights and involuntary servitude and slavery statutes, (2) the Federal election laws, and (3) the labor statutes. Of these, the civilrights statutes (secs. 241 and 242, title 18, U. S. C.) are responsible for the major portion of the Section's workload. The following is a discussion of some of the problems encountered in administering and supervising the enforcement of these important Federal laws.

Catlette v. United States, 132 F. 2d 902.

8 Trujillo v. Garley, Civil No. 1353. D. C. N. Mex., August 11, 1948.

Harrison v. Laveen, 67 Ariz. 337, 196 Pac. (2) 456 (1948).

10 Brewer v. Horie School District, 238 F. (2d) 91 (C. A. 8, 1956).

11 For list of law-review articles, by present and former members of the Section, see appendix A.

CIVIL-RIGHTS STATUTES, SECTIONS 241 AND 242, TITLE 18, UNITED STATES CODE At the outset, it would seem appropriate to explore briefly our civil-rights background. The United States Constitution, as originally adapted, contained no Bill of Rights. However, shortly after the adoption of the Constitution, the First Congress passed and submitted 12 amendments to the States and, by 1871, 10 of these amendments, which we now know as the Bill of Rights, had been ratified.

In adding to the Constitution such guaranties as freedom of speech, press, and religion: the right peacefully to assemble and to petition the Government; freedom from unreasonable search and seizures; the right to due process of law; and prohibition against taking property without just compensation, our ancestors were not laying down novel principles of government. They were insisting on traditional guaranties and immunities-guaranties which the Declaration of Independence had declared inalienable and because of the deprivation of which they had risen in arms against a tyrannous government.

It is widely believed that the Bill of Rights was designed to protect individuals against deprivation of their rights by other individuals. Nothing could be further from the truth. The Bill of Rights was not intended to, and does not, afford the protection of the individual's liberties against the conduct of other individuals or of State governments. The Bill of Rights was an expression of fear and distrust of central government and an assurance that no despotism would arise to take the place of the one recently overthrown. In other words, the Bill of Rights set forth only what the Federal Government must not do to the people.

Until the Civil War, the individual looked to his State and community governments as the source and guardian of his personal rights. But post-Civil War. problems forced a new approach, a shifting of emphasis in governmental scope and responsibilities. After the war, it became apparent that many States could not or would not fulfill their obligations to protect the individual liberties of all classes and kinds of persons. Consequently, the 13th, 14th, and 15th amendments were added to the Constitution with the purpose of abolishing slavery and securing to all persons as against the State and National Governments equality in the protection of individual rights and liberties. Successive Congresses launched a program to enforce these amendments. In addition to antislavery legislation, 5 civil-rights statutes, known as Enforcement Acts, were placed upon the statute books in the 10 years following the war.

These five statutes spelled out the guaranties contained in these amendments and provided serious penalties against State officers and private persons as well for violation of the rights. Congress, through these statutes, undertook to secure to all persons the right to vote; then protection of individuals against mob violence; the right to acquire and own property, to make contracts and have access to the courts; and the right of accommodation without discrimination in places open to the public. Some of these statutes were declared unconstitutional by the courts and others were repealed by Congress. By 1909, few of them remained. In fact, so far as criminal statutes are concerned, only whatis now known as sections 241 and 242, title 18, United States Code, survived as fragments of this original legislation. The following is a discussion of these sections and their application in the light of their history and applicable court decisions.

SECTION 241, TITLE 18, UNITED STATES CODE

Section 241 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 highway, 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 imprisonment not more than ten years, or both."

This section is aimed at a criminal conspiracy to injure, oppress, or intimidate citizens (not aliens) in the exercise of federally secured rights and privileges. These rights are not enumerated in either section 241 or 242. They are to be found in various statutes and in certain portions of the Constitution, notably in the first eight amendments and in the 14th and 15th amendments. The

rights protected by section 241 are comparatively few in number because of the limitations on the Federal Government which exist under our system.

A. Statutory rights

The chief utility of section 241 for the enforcement of statutory rights has been as a criminal sanction for otherwise sanctionless statutes. Abridgment by more than one person of a right created by Federal statute which itself contains no penalty may, in the absence of a contrary congressional intent, be punished under section 241. Thus, the homestead laws, which provide machinery for obtaining title to land in the public domain on compliance with certain conditions, do not contain specific criminal provisions penalizing interference with the right the statutes grant. However, the Supreme Court has held that running a homesteader off his land, being a deprivation of the right acquired under the statute, is punishable under section 241, provided a conspiracy is involved." This theory appears applicable to any case of intimidation of a person who has personal rights under a Federal statute if the purpose of the coercion is to deprive him of his statutory benefits. Thus, under the social-security laws, the Fair Labor Standards Act, and other statutes, certain benefits are conferred on persons or protection is afforded them against lawless interference. Criminal sanctions to punish attacks by private persons or public officials absent in the above statutes appear to be available in section 241 because of the invasion of rights "secured *** by the *** laws of the United States."

B. Constitutional rights

The Constitution deals primarily with relationships between the Federal and State governments and between these governments and private persons. Therefore, abuse by one private individual of another gives rise to a deprivation of a constitutional right in comparatively few instances. Hence, section 241 has only limited application to the conduct of private persons. In the absence of special facts, the ordinary outbreak of mob violence, vigilante activity directed against Negroes, soap-box orators, religious groups, or others is not within the section. Such aggressions may appear to constitute deprivations of the rights to liberty or life, freedom of speech, freedom of assembly, freedom of religion, freedom from unlawful searches and seizures, or other invasions of personal rights mentioned in the Constitution. But these rights are rights against official action only and do not extend to the private behavior of one individual toward another. This situation is, perhaps, best summed up by Cushman, in his book entitled "Safeguarding Our Civil Liberties." At page 45, he says, "Broadly speaking it is the State and not the Federal Government which can prevent this kind of abuse (referring to private deprivation of civil liberties). No individual can possibly violate the Federal Bill of Rights which begins with the words: 'Congress shall make no law,' and has been held to restrict only the Federal Government. Nor can an individual violate the 14th amendment which clearly says 'no State' shall do the things forbidden."

In United States v. Mosley," decided in 1915, the Supreme Court, speaking through Mr. Justice Holmes, said at page 387. "The source of this section [241] in the doings of the Ku Klux and the like is obvious and acts of violence obviously were in the minds of Congress. *** But this section dealt with Federal rights and with all Federal rights, and protected them in the lump * *." Until the decision in Williams v. United States" in 1951, it was thought that the rights "protected in the lump" included not only the comparatively few secured against private invasion but, also, those which the Constitution (principally the first eight and the 14th and 15th amendments) secures as against deprivation by State or Federal officers acting in their official capacities. However, in the Williams case, the Supreme Court divided 4 to 4 on the question as to whether this section could reach a conspiracy of officials acting under "color of law." Four members of the Court, in an opinion by Mr. Justice Frankfurter, held that the application of section 241 is limited to those rights which Congress can secure against invasion by private persons. If this opinion should ultimately prove to represent the law, the applicability of the section has been narrowed to such few situations as involve deprivations by private persons, such as the right to vote in Federal elections, the right of a voter in a Federal election to have his ballot fairly

15

12 United States v. Waddell, 112 U. S. 76 (1884).

13 238 U. S. 383.

14 341 U. S. 70.

15 Ex parte Yarbrough, 110 U. S. 651.

18

counted, the right to be free from mob violence while in Federal custody," the right to assemble and discuss Federal problems, the right to testify in the Federal courts," the right to inform a Federal officer of a violation of Federal law," the right to furnish military supplies to the Federal Government for defense purposes," the right to enforce a decree of a Federal court by contempt proceedings, the right, as a Federal officer, not to be interfered with in the performance of his duties, the right to be free to perform a duty imposed by the Federal Constitution." The individual must look elsewhere for the security of those basic liberties sought to be preserved in the Bill of Rights and in the 14th and 15th amendments from tyrannous and overzealous officials.

SECTION 242, TITLE 18, UNITED STATES CODE

Section 242, title 18, United States Code, is aimed at infringement of federally secured rights by the wrongful action of State or Federal Government officials. The section 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, or 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." At the outset, it will be observed that two distinct offenses are defined by this section:

1. The willful subjection of any inhabitant, under color of law, to the deprivation of rights, privileges, or immunities secured by the United States Constitution and laws; and

2. The willful subjection of any inhabitant, under color of law, to discriminatory pains or punishments on account of race, color, or alienage.25 Unlike section 241, section 242 is not a conspiracy statute and may be violated by a single individual. Further, the protection of 242 is not limited to citizens and, so far as the first offense referred to above, the section's protection extends to all inhabitants of any State, Territory, or district, regardless of race or class identification.

To be in violation of section 242, the act resulting in deprivation of federally secured rights must be done "willfully." In defining the word "willfully," the Supreme Court has stated in Screws v. United States that it is not enough that the wrongdoer have a general bad purpose or an evil intent to do wrong. He must Lave at the time he commits the offense a specific intent to deprive the victim of a Federal right which has been made specific either by "the express terms of the Constitution or laws of the United States or the decisions interpreting them."

The act forbidden must be committed "under color of law, statute, ordinance, regulation, or custom." This phrase is synonymous with "color of authority." It means that the statute can be violated in the first instance only by persons occupying public office--Federal, State, or municipal-or persons who ex reise governmental powers. A private individual may violate the statute only if he aids and abets such officials. The fact that the act proscribed must be committed by the officer in his official capacity does not mean that it need be authorized by some provision of a State or Federal law. Conduct may be punnishable under

United States v. Mosley. 238 U. S. 383; United States v. Classic, 313 U. S. 299; United States v. Saylor, 322 U. S. 385.

17 Logan v. United States, 144 U. S. 263.

Ses United States v. Cruikshank. 92 U. S. 542, 552; Powe v. United States, 109 F. 2d 147, 151 (C. A. 5), cert. den.. 309 U. S. 679.

19 Foss v. United States, 266 Fed. 881 (C. A. 9),

In re Quarles, 158 U. S. 532, 536; Notes v. United States, 178 U. S. 548, 462-463; Nicholson v. United States, 79 F. 2d 387 (C. A. 8); Hawkins v. State, 293 Fed. 586 (C. A. 5).

Anderson v. United States, 260 Fed. 65 (C. A. 9), cert. den. 255 U. S. 576.

United States v. Lancaster, 44 Fed. 885, 44 Fed. 896 (C. C. WD Ga.).

McDonald v. United States, 9 F. 2d 506 (C. A. 8); United States v. Patrick, 54 Fed. 338 (C. C. ND Tenn.).

Brewer v. Horie School District, 238 F. 2d 91 (C. A. 8, 1956).
United States v. Classic, 313 U. S. 299, 327 (1941).

2325 C. S. 91, 104 (1945).

this section even though it violates the express command of the law. This is made clear from the following quotation from the Classic case (p. 326):

"Misuse of power, possessed by virtue of State law and made possible only because the wrongdoer is clothed with the authority of State law, is action taken 'under color of' State law."

The gist of the offense defined by section 242 in each case is the deprivation of a right secured by the Constitution or laws of the United States. Among the more important of the rights secured are those defined in the 5th and 14th amendments, i. e., the right not to be deprived by either a State or the Federal Government of life, liberty, or property without due process of law, and the right not to be deprived at the hands of a State of the equal protection of the laws. The willful taking of life by a person acting under color of law and contrary to due process would not only violate section 242 but would, also, constitute murder under State laws. A wilful deprivation of property rights without due process of law, under color of authority, is likewise, a violation of the section. Such tactics may be a part of an extortion scheme or may consist of confiscation of personal property or unwarranted interference with real property rights. The right to conduct a lawful business has been held to be a property right protected by the 14th amendment and, consequently, willful action of public officials to destroy a man's business would constitute a violation."

33

27

28

29

32

The majority of prosecutions under this section have been concerned with the deprivation of liberty. Liberty includes personal security, as well as freedom from physical restraint. It also includes freedom of speech and the press," freedom to assemble peaceably," to petition the Government, to pursue a lawful calling, to express and exercise religious beliefs," to establish a home, and to secure therein from unlawful searches and seizures.* The right to due process in this connection includes the right to a fair trial, which, in turn, encompasses a real, not a sham or pretended, hearing; " the right not to be tried by ordeal or summarily punished other than in the manner prescribed by law; the right to be free from prison brutality-a right possessed even by convicts in State prisons; the right not to be compelled to confess to an offense; the right of a defendant in certain types of criminal cases to be represented by counsel; and the right to a jury from which members of the defendant's race have not been purposely excluded."

30

28

The foregoing rights are secured against Federal, State, and local officials alike, and any intentional interference with them by public officials may be punished under section 242. However, it must be kept in mind that section 242 may also be utilized to punish official interference with rights secured against infringement by private individuals. For example, the section is applicable to penalze an official who deprives a person of the right not to be held as a slave, or the right to yote at a Federal election, or the right of access to Federal courts," or the right to inform Federal officers concerning Federal offenses," or the right to be a witness in the Federal courts.

In addition to the rights enumerated above, the first eight amendments include certain rights secured only as against infringement by the Federal Government. Examples of these are the right not to be twice put in jeopardy for the same offense, the right to a speedy and public trial in a criminal case, and the right not to be held in excessive bail or subjected to cruel and unusual punishment.

Brown v. United States, C. A. 6, May 18, 1953.

28 Truax v. Corrigan, 257 U. S. 312 (1921).

Lynch v. United States, 189 F. 2d 476, 479 (1951), cert. den., 342 U. S. 831.

80 DeJonge v. Oregon, 299 U. S. 353, 364; Grosjean v. American Press Co., 297 U. S. 233 (1936).

31 Hague v. C. I. O., 307 U. S. 496 (1939).

32 First amendment, United States Constitution.

33 Truax v. Raich, 239 U. S. 33 (1915).

Cantwell v. Connecticut, 310 U. S. 296 (1940); Pierce v. Society of Sisters, 268 U. S. 510 (1925).

Meyer v. Nebraska, 262 U. S. 390, 399 (1923).

38 Wolf v. Colorado, 338 U. S. 25 (1948).

87 Moore v. Dempsey, 261 U. S. 86.

38 Screws v. United States, 325 U. S. 91; see note 26.

30 United States v. Jones, 207 F. 2d 785 (C. A. 5, 1953) United States v. Walker, 216 F. 2d 683 (C. A. 5, 1954), cert. den., 348 U. S. 959; United States v. Jackson, 235 F. (2) 925 (C. A. 8, 1956).

40 Williams v. United States, 341 U. S. 97 (1951).

41 Powell v. Alabama, 287 U. S. 45 (1932).

42 Smith v. Teras, 311 U. S. 128 (1940).

43 Ex parte Hull, 312 U. S. 583 (1941).

In re Quarles and Butler, 158 U. S. 532 (1895).