Full text of "Racially motivated violence : hearings before the Subcommittee on Criminal Justice of the Committee on the Judiciary, House of Representatives, Ninety-seventh Congress, first session, on racially motivated violence, March 4, June 3, and November 12, 1981"

RACIALLY MOTIVATED WmLtMlE

HEARINGS

BEFORE THE

SUBCOMMITTEE ON CRIMINAL JUSTICE

OF THE

COMMITTEE ON THE JUDICIAEY
HOUSE OF REPRESENTATIVES

NINETY-SEVENTH CONGRESS

FIRST SESSION

RACIALLY MOTIVATED VIOLENCE

MARCH 4, JUNE 3, AND NOVEMBER 12, 1981

Serial No. 135

Printed for the use of the Committee on the Judiciary

BOSTOISI
PUBLIC
UBRARY

RACIALLY MOTIVATED VIOLENCE

HEARINGS

BEFORE THE

SUBCOMMITTEE ON CRBONAL JUSTICE

OF THE

COMMITTEE ON THE JUDICIAEY
HOUSE OF EEPRESENTATIVES

NINETY-SEVENTH CONGRESS

FIRST SESSION

RACIALLY MOTIVATED VIOLENCE

MARCH 4, JUNE 3, AND NOVEMBER 12, 1981

Serial No. 135

Printed for the use of the Committee on the Judiciary

U.S. GOVERNMENT PRINTING OFFICE
11-647 O WASHINGTON : 1983

COMMITTEE ON THE JUDICIARY
PETER W. RODINO, Jr., New Jersey, Chairman

JACK BROOKS, Texas

ROBERT W. KASTENMEIER, Wisconsin

DON EDWARDS, California

JOHN CONYERS, Jr., Michigan

JOHN F. SEIBERLING, Ohio

GEORGE E. DANIELSON, California

ROMANO L. MAZZOLI, Kentucky

WILLIAM J. HUGHES, New Jersey

SAM B. HALL, Jr., Texas

MIKE SYNAR, Oklahoma

PATRICIA SCHROEDER, Colorado

BILLY LEE EVANS, Georgia

DAN GLICKMAN, Kansas

HAROLD WASHINGTON, Illinois

BARNEY FRANK, Massachusetts

ROBERT McCLORY, Illinois
TOM RAILSBACK, Illinois
HAMILTON FISH, Jr., New York
M. CALDWELL BUTLER, Virginia
CARLOS J. MOORHEAD, California
JOHN M. ASHBROOK, Ohio
HENRY J. HYDE, Illinois
THOMAS N. KINDNESS, Ohio
HAROLD S. SAWYER, Michigan
DAN LUNGREN, California
F. JAMES SENSENBRENNER, Jr.,

Wisconsin
BILL McCOLLUM, Florida

Alan A. Parker, General Counsel

Garner J. Cune, Staff Director

Franklin G. Polk, Associate Counsel

Subcommittee on Criminal Justice

JOHN CONYERS, Jr., Michigan, Chairman
DON EDWARDS, California F. JAMES SENSENBRENNER, Jr.,

JOHN F. SEIBERLING, Ohio Wisconsin

SAM B. HALL, Jr., Texas THOMAS N. KINDNESS, Ohio

BILL McCOLLUM, Florida

Thomas W. Hutchison, Counsel

Michael E. Ward, Assistant Counsel

Gail E. Bowman, Assistant Counsel

Barbara Kammerman, Assistant Counsel

Bennie B. Wiluams, Clerk

Cheryl Reynolds, Clerk

Anne I. West, Clerk

(ID

CONTENTS

Hearings Held

Page

March 4, 1981 1

June 3, 1981 61

November 12, 1981 345

Witnesses

Beims, Constance, chairperson, Maryland Governor's Committee on Violence

and Extremism 345

Berry, Mary Frances, Vice Chair, U.S. Commission on Civil Rights 62

Prepared statement 79

Bonosaro, Carol A., Assistant Staff Director, U.S. Commission on Civil Rights . 62
Brenner, M. Harvey, Ph. D., sociologist. School of Hygiene and Public Health,

Johns Hopkins University, Baltimore, Md 17

Prepared statement 31

Carty-Bennia, Denise S., professor. Northeastern University School of Law 102

Prepared statement 108

Clark, Dr. Kenneth B., New York City 4

Prepared statement 14

Crooke, Bernard D., chief of police, Montgomery County, Md 404

Dean, Alan P., executive secretary, Montgomery County Human Relations

Commission 404

Gerebenics, Gail, Assistant General Counsel, U.S. Commission on Civil Rights. 62

Gilchrist, Charles W., county executive, Montgomery County, Md 404

Prepared statement 410

Goode, Victor, Esq., executive director. National Conference of Black Lawyers. 132

Prepared statement 139

Green, Arthur L., director, Connecticut Commission on Human Rights and

Opportunities 187

Prepared statement 196

Hairston, George E., assistant general counsel, National Association for the

Advancement of Colored People 114

Prepared statement 123

Hughes, Hon. Harry, Governor of the State of Maryland 345

Prepared statement 353

Mitchell, Charlene, executive secretary. National Alliance Against Racist and

Political Repression 46

Prepared statement 55

Murphy, Patrick V., president. Police Foundation 417

Prepared statement 423

Reynolds, William Bradford, Assistant Attorney General, Civil Rights Divi-
sion, Department of Justice 356

Prepared statement 363

Rinzel, Dan, Chief, Criminal Section, Civil Rights Division, Department of

Justice 356

Sanders, Robert E., Assistant Director, Criminal Enforcement, Bureau of

Alcohol, Tobacco and Firearms 425

Prepared statement 436

Van Alstyne, William, Perkins Professor of Law, Duke University School of

Law : 385

Prepared statement 396

(III)

Winter, Steve, assistant counsel, NAACP Legal Defense and Educational ^^^

Fund, Inc 153

Prepared statement 161

Appendix

Pompa, Gilbert G., Director, Community Relations Service, Department of
Justice, prepared statement 439

RACIALLY MOTIVATED VIOLENCE

WEDNESDAY, MARCH 4, 1981

House of Representatives,
Subcommittee on Criminal Justice
OF THE Committee on the Judiciary,

Washington, D.C.

The subcommittee met, pursuant to call, at 9:40 a.m., in room
2237, Rayburn House Office Building, Hon, John Conyers, Jr.
(chairman of the subcommittee) presiding.

Present: Representatives Conyers, Edwards, Hall, Sensenbrenner,
Kindness, and McCoUum.

Staff present: Thomas W. Hutchison, counsel; Oliver Quinn, as-
sistant counsel; and Raymond Smietanka, associate counsel.

Mr. Conyers. The subcommittee will come to order.

This is the first of a series of hearings on what appears to be an
increase in incidents in recent years of criminal violence directed
against minority group citizens.

I welcome my colleagues who have joined us, and we will begin
the hearings by approving, as is necessary, the coverage of this
hearing by videotape and photography, that motion pictures and
other things be permitted in accordance with rule 5 of the rules of
procedure.

If there is no objection, permission will be granted.

Mr. Sensenbrenner. I am reserving the right to object, Mr.
Chairman, and I will object. I am very strongly opposed to violence
against minority groups or anyone else in this society. But this is
the second hearing that has been held on this subject by a subcom-
mittee of the House Judiciary Committee.

In the last Congress the Subcommittee on Crime, which the gen-
tleman from Michigan chaired, held a hearing subsequent to the
election. That hearing proved to be a three-ring circus. There was a
representative of the Ku Klux Klan who deliberately obstructed
and interrupted the hearing, and as a result, the news media repre-
sentatives in attendance, in violation of subsection 6 of the commit-
tee's rule 5, went out in the middle of the hearing into the hallway.
The result was the Ku Klux Klan representative got more media
coverage than did the witnesses before the committee.

I would read that subsection. It says:

Equipment necessary for coverage by the television and radio media shall not be
installed in or removed from the hearing room while the committee or subcommit-
tee, as the case may be, is in session.

Now, in order to prevent this from happening, again, and ob-
structing a very serious hearing of the Congress, I think that it

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probably would be wise for us to forgo having radio and television
cameras in the hearing room for the first couple of hearings, in
hopes that matters settle down.

For that reason, Mr. Chairman, I do object.

Mr. CoNYERS. All right.

Is there any further discussion?

Mr. Kindness. Mr. Chairman.

Mr. CoNYERS. The gentleman from Ohio.

Mr. Kindness. Mr. Chairman, it was my pleasure to serve with
the late Leo Ryan, who was chairman of a subcommittee of the
Government Operations Committee in the 95th Congress, who
stated we weren't going to have committee hearings; we were going
to have media events. That experience is one which I felt caused
more heat than light to be shed on the subject matter we dealt
with in that Congress, which had to do with the back end of the
nuclear fuel cycle. And, of course, there were emotions raised on
an issue such as that, just as there are likely to be emotions that
are raised in the hearings that the chairman has apparently pro-
jected for the future and for today.

I wish to state, with malice toward none in the news media or
certainly on this subcommittee, that we can conduct hearings of a
more meaningful sort, I believe, by not causing them to be media
events. The circus atmosphere is not one in which to get to the
heart of the issues and the determination of problems in a clear
light and to arrive at solutions.

I think we have seen subcommittees in this Congress used time
after time after time as events for publicity, for the chairmen of
subcommittees and members of subcommittees, and it doesn't help
us to get at the problems that are supposed to be dealt with.

In lieu of dealing with the real oversight questions, oftentimes
subcommittees are used for more popular emotional issues that are
counted on for more publicity. If that is the way the subcommittee
is going to operate, that will have to be determined by the mem-
bers of the subcommittee. But if that's the way it's going to be,
however, it is going to be a struggle for the whole Congress.

I join the gentleman from Wisconsin in objecting to the circus at-
mosphere.

Mr. CoNYERS. Does the gentleman from California seek recogni-
tion?

Mr. Edwards. Yes. Thank you, Mr. Chairman.

I have served with the gentleman from Michigan, the chairman
of this subcommittee, for a number of years, and he previously
chaired the Subcommittee on Crime. I have always found him to be
a most responsible and scholarly chairman, whose hearings and
whose legislative proposals have done a great deal for the Ameri-
can people and, indeed, for Congress.

I think this is a very important issue that the subcommittee has
under consideration. I don't think that we ought to dig back into
history and because the Ku Klux Klan misbehaved at a previous
hearing, change our procedures and go into secret session

Mr. Sensenbrenner. Would the gentleman yield?

Mr. Edwards. I will yield in just a moment, of course I will.

But I think the American people are entitled to see what goes
on. I thought both political parties were for sunshine in all the
work that is done by Congress.

Now I yield to the gentleman from Wisconsin.

Mr. Sensenbrenner. The gentleman from Wisconsin does not ad-
vocate a secret session on this subject or any other subject. The
public is invited to participate in these hearings and attend these
hearings. It can be covered by the print media if the print media is
in attendance.

I would point out the electronic media violated the rules of this
committee in the last session on this subject, and it says very clear-
ly in the rules that:

Equipment necessary for coverage by the television and radio media shall not be
installed in or removed from the hearing room while the committee or subcommit-
tee, as the case may be, is in session.

The gentleman from California was not present at that hearing.
I sat through the whole thing. What happened was that a Ku Klux
Klan representative disrupted the hearing and was ejected by the
chairman, the gentleman from Michigan, and the news media just
migrated from that part of the room and went out the door, in vio-
lation of the committee rules, and duly recorded what was going on
in the hall by this spreader of hate.

Nov/, I am not going to judge for the news media what is news-
worthy and what is not. But if the news media does come into a
hearing room, they had better abide by the rules of the committee
that allows them there, and they did not do so last time. So I think
we ought to just "cool" the electronic media business for a little
period of time.

Perhaps if this subcommittee does calm down and we can hear
the witnesses in a dispassionate manner, then they might be al-
lowed back in and I certainly would change my position. But until
then, I don't think so.

Mr. Edwards. I thank the gentleman for his contribution. I am
sure that in the event any of the rules of the committee are violat-
ed, at this hearing or any future meetings, those of us who are
here will make a point of order and not allow it to happen.

Now, Mr. Chairman, pursuant to rule 5 of the Committee on the
Judiciary Rules of Procedure, I move to permit coverage of this
hearing, in whole or in part, by means of motion pictures, video-
tape, and still photography.

Mr. CoNYERS. Those members that support the motion will indi-
cate by saying "aye."

Aye.

Mr. Edwards. Aye.

Mr. CoNYERS. Those opposed, by saying "no."

Mr. Sensenbrenner. No.

Mr. Kindness. No.

Mr. Conyers. With the addition of a proxy from a member of the
committee, Mr. Seiberling

Mr. Sensenbrenner. And another member of the committee, Mr.
McCollum

Mr. Conyers. That makes it 3 to 3.

If we may — well, the motion fails, and the subcommittee will
stand in recess for 5 minutes.

[Recess.]

Mr. CoNYERS. The subcommittee will come to order.

This hearing revolves around what appears to be an increase in
incidents in recent years of criminal violence directed against mi-
nority group citizens. No interruptions or disturbances will be per-
mitted at this hearing. Disrupters will be immediately ejected.

These hearings will focus on criminal violence and threats of vio-
lence committed by individuals or organizations, and not within
their exercise of constitutional rights protected by the first amend-
ment. It is our purpose to conduct a careful, objective, and thor-
ough study of such violence.

A number of citizens from across the Nation will testify before
the subcommittee from all walks of life, including the Department
of Justice.

There continues to be an abundance of evidence of criminal vio-
lence directed against minority group citizens. This violence has
manifested itself in a variety of ways — random shootings and
sniper attacks, assaults, attacks on civil rights leaders, firebomb-
ings, armed confrontations at political demonstrations, and intimi-
dations and threats of violence.

The violence is not confined to any one section of the Nation. On
the contrary, it is a serious national problem. This hearing and
future ones will examine the causes of this violence, the nature
and extent of the violence, the adequacy of local. State, and Feder-
al laws and their enforcement, and steps that might be taken to
prevent such violence in the future.

Is it mere coincidence in such a period as the present one, when
unemployment is rising and inflation continues unabated, that
there is an increase in violence? That is the question. Are popular
misconceptions among white Americans regarding the impact of af-
firmative action policies and the economic position of black Ameri-
cans exacerbating race relations? That is another question. Is there
a relationship between institutionalized racism and racial violence,
between the perceived retreat from earlier commitments and prom-
ises and increased violence, between an uncontrolled free market
economy and race relations? These are considerations that we hope
to get into.

Now, the problem of racial violence is not new. Dr. Martin
Luther King, Jr., himself a victim of racial violence, was assassi-
nated 12 years ago while assisting in an attempt to address a labor
problem that he knew had the potential for violent eruption. These
hearings are a further step in the process of identifying and ad-
dressing the real causes of racial violence in this society.

TESTIMONY OF DR. KENNETH B. CLARK, NEW YORK CITY

Mr. CoNYERS. We are very honored to have as our first witness Dr.
Kenneth B. Clark, a distinguished professor emeritus of psychology at
the City University of New York, and past president of the American
Psychological Association, member of the board of regents of the State
of New York, member of the board of trustees of Howard Universi-
ty, and of the board of the University of Chicago. He is an author

noted for his work on the effects of segregation on children, which
was cited in the Supreme Court decision in Brown v. Board of Edu-
cation.

He is presently the head of a consulting firm specializing in com-
munity relations, affirmative action, and race relation issues.

Dr. Clark, knowing how rarely it is your disposition to testify
before subcommittees, we feel very honored to have you here. We
will have your prepared remarks introduced in full into the record
at this point by unanimous consent and invite you to the witness
table to proceed in your own way.

Welcome to the subcommittee.

Dr. Clark. Thank you, Mr. Chairman, and members of your com-
mittee.

I would like to address myself to what I suppose one could call it
"legal" violence, and raise mainly the undramatic problem of
police killings of minorities.

In the 1970's, while I was director of the Metropolitan Applied
Research Center, my staff was asked to make a study of persons
killed by the police in New York City during the period from 1970
to 1973.

We found in that study that a disproportionate number of indi-
viduals killed by police in New York City were black and Hispanic
youths. The results of that study were confirmed by other studies
that have come to our attention. In these studies, too, the evidence
is clear that blacks and other nonwhites and Hispanics were more
likely to be shot and killed by police officers than were whites; and
that younger blacks and Hispanics, below the age of 24, were more
likely to be killed by the police. These findings seem to be consist-
ent in cities such as New York, Los Angeles, Chicago, and Detroit,
where there is a high proportion of minorities.

One of the certain things for me as I look over these studies is
the consistency of these findings. The evidence is there, consistent
and revealing. Even when these authorities offered explanations
such as minorities are more likely to perpetrate crimes than are
nonminorities, the fact remains that these killings are judgments.
When the police kill an alleged perpetrator, the perpetrator has no
trial, and there is no way of determining his guilt or innocence. In
fact, police killings are a form of capital punishment, a fait accom-
pli-

In recent years there have been some disturbing indications of a

complex set of racial factors operating in the area of police killings.
In the study of killings in New York City there were incidents of
the killing of young blacks where there was not even an indication
of crime.

One very dramatic example of this was a police killing of a
young, black teenager who was walking along the street, in which
there was no crime involved. However, the policeman pulled out
his gun and shot and killed the youngster. The policeman was tried
and acquitted on the grounds of temporary insanity. He was re-
quired to spend a few months in a hospital. At the end of the few
months of hospitalization, he was deemed no longer insane and was
released.

I think, gentlemen, the pattern is clear, and persistent. So far
nothing is being done to address this disturbing problem of legal

violence — legal in the sense that it is violence perpetrated by law
enforcement officers along racial lines.

I present the facts in my prepared statement. I did not attempt
in the prepared statement to interpret these facts. It seems to me
that the interpretation in terms of a racial discrepancy here is
clear. The facts support the contention that race is a critical factor
in the police killings in our large urban centers.

I am prepared to answer any questions you, Mr. Chairman, or
members of your committee, would think to ask.

Mr. CoNYERS. What about the consideration of the violence that
is going on that is not being committed by law enforcement or Gov-
ernment personnel? Do you notice any change in the number of
people that are being assaulted in that capacity?

Dr. Clark. Well, the press has presented the problems of the kill-
ing of minorities, of blacks, in such cities as Buffalo, and the tragic
and incredible pattern of killings of young blacks in Atlanta. Those
cases have been presented by the press. They are dramatic in that
they form a pattern within time and place.

I chose to concentrate on this form of violence because it does
not have the same sort of dramatic press coverage. On the con-
trary, with few exceptions, it seems to be accepted as norm. The
killing of minorities by police generally is perceived by the Ameri-
can public as part of law enforcement, as part of law and order.

I am contending that that is a questionable perspective of this
particular problem which I am seeking to emphasize here. My per-
sonal opinion is that this racial disproportionate factor in police
killings is part of the same pattern and context of racism and vio-
lence in American society. However, it is not generally so per-
ceived.

Mr. CoNYERS. Dr. Clark, is that legal violence increasing or di-
minishing?

Dr. Clark. It seems to be remaining constant. As I look at the
studies over the last 10 years, the disproportionate number of
blacks and other minorities killed by police does not seem to be in-
creasing or decreasing.

Mr. CoNYERS. What about the efforts to change this pattern?

Dr. Clark. Mr. Chairman, I do not know of any systematic ef-
forts to change the pattern because, for one thing, in order to
change a pattern, you have to face the fact that there is a problem.
On the basis of the evidence which I have seen, my judgment is
that this is not generally perceived as a problem. Instead of being
perceived as a problem, it tends to be excused, tends to be ex-
plained away.

For example, when an officer kills a young person and is brought
before his peers or a jury, almost invariably these individuals are
found not guilty of a crime. The explanation is that they were per-
forming their duties as police officers. So the issue of dealing with
the problem is not existent because it is not seen as a problem.

I am presenting this testimony to assert that this is a problem. It
is a problem which should be faced if it is going to be remedied. I
don't know whether society is prepared to face it. If the society is
not prepard to face it, it will be an accessory to the perpetuation of
what I perceive as a problem.

Mr. CoNYERS. Thank you very much.

The gentleman from Wisconsin, Mr. Sensenbrenner.

Mr. Sensenbrenner. Dr. Clark, I am impressed with the thor-
oughness of your testimony and the studies that you have present-
ed to the committee. But I do have a couple of questions.

First, have you done any correlations between homicide victims
involving the police and whether the incident occurred in a high
crime area, which would bring along with it increased police pa-
trols?

Dr. Clark. I have not done the correlations, as you said, but the
fact is that these incidents do generally occur in high crime areas.
They generally occur — obviously — where the victims are minorities,
they are almost invariably occur in ghetto areas.

Mr. Sensenbrenner. If that's the case, wouldn't there be a
higher percentage of minority victims because minorities are gen-
erally concentrated in ghetto areas? Would that not be an addition-
al factor that has got to be considered in making a determination
on whether there was a greater percentage of incidents that oc-
curred in relationship to the higher number of incidents that are
investigated by police?

Dr. Clark. Yes, there is no question that these incidents, when
they occur, occur in areas in which the police are concentrated in
terms of high crime.

My point, Mr. Congressman, is that the fact of a high crime area
is not, in itself, a determinant in the use of a gun as a factor in
dealing with crime — or an alleged crime.

This precipitous, impetuous use of a gun is more likely to occur
in dealing with crimes in the minority areas than in dealing with
similar crimes in nonminority areas. The location of a problem is,
to me, not sufficient explanation of the fact that police officers are
more likely to shoot and to kill alleged criminals in ghetto areas
than they are to shoot and to kill alleged criminals in nonghetto
areas.

Mr. Sensenbrenner. Thank you. I have no further questions.

Mr. Conyers. The gentleman from California, Mr. Edwards.

Mr. Edwards. Thank you, Mr. Chairman.

It is a great pleasure for me to join the chairman and the gentle-
man from Wisconsin in welcoming to this hearing a very distin-
guished author and scholar. Dr. Kenneth B. Clark. I really have
been an admirer of yours for many years.

Dr. Clark. Thank you, sir.

Mr. Edwards. On page 5 of your testimony, Dr. Clark, you quote
an article in the New York Times in 1973 by Mr. Burnham, to the
effect that about three out of five people in New York during a cer-
tain period who were killed by police were black, and it's about the
same as the arrest record. The arrest record for felonies was 62
percent for blacks in that particular study.

We have had a very sharp argument in the last few days about
the roots of crime in the United States. One very distinguished
jurist said that the way we could reduce violent crime in the coun-
try, which is an epidemic situation at the moment, would be
through speedier trials, the certainty of jail sentence, rehabilitation
efforts in correctional institutions, and some preventive detention
in bail cases where the arrestee might be prone to violence.

The other distinguished jurist sharply disagreed with him and
said that although he certainly is in favor of speedier criminal
trials and the certainty of jail sentences, and all of those recom-
mendations except for the preventive detention remedy, the roots
of violent crime in the United States are much more basic than
that, that they lie in unemployment, in family structure, in racial
discrimination, in poverty. And he proved it by example after ex-
ample, of children who are raised in very unfortunate circum-
stances, where jobs are not available for their parents, decent edu-
cation is not provided to them, family structure is not as stable as
in the usual middle class of the United States. Violent crime starts,
at a very young age. Those are usually the young people who end
up in jail.

What is your observation on this controversy between two distin-
guished jurists?

Dr. Clark. I am generally on the side of the latter. My own judg-
ment about the roots of violent crime is that violent crimes are
generally perpetrated by individuals who feel they have nothing to
lose. Their predicament is so hopeless that even if they are caught
and imprisoned, it would be no worse than their day-to-day lives.

In this regard I would like to share with the committee an obser-
vation I made in the 1964 Harlem riots, where I actually went into
the eye of that storm in order to observe it directly for myself. I
was walking beside a group of four or five young black teenagers,
say between the ages of 16 and 20. They were boasting about their
participation in the riot, and what they had done.

One of these young men said, "Well, I broke in and I got some
things, but the man didn't get me tonight. I'll go home, get some
rest, and come out tomorrow, and maybe he'll get me." I've never
forgotten that, because what I was hearing this young man verbal-
izing was almost a wish to be caught, to maybe even be shot at.

When you look at the statistics on suicide, you notice that one
index of social pathology in which blacks are lower than whites is
in suicides. However, those statistics, I think, are incomplete, in
that they're dealing only with direct suicide, where the individual
actually kills himself. An indirect suicide, as in the case of crime or
drugs, or where individuals feel hopelessness, who have a sense of
"what the hell do I have to lose." In such cases they place them-
selves in positions for others to destroy them if they dare. It's a
kind of dare relationship with a society which dehumanizes.

Another factor that I would like to add, in terms of a determi-
nant of crime and violence, is related to the evidence which I
sought to emphasize here, a disrespect for the law, a disrespect for
the agents of law.

I grew up in Harlem and spent all of my elementary and second-
ary school days in the center of Harlem. It was just generally ac-
cepted by young people growing up in Harlem that law enforce-
ment agents were as much a factor in crime as were the number
runners or the bootleggers or anyone else. It just was accepted. The
only thing that countered a total disrespect for the law, on the part
of those of us who did not go the route of crime, was a family that
gave us another perspective, another set of objectives, that would
counter the realities of our day-to-day observations. Unfortunately,
many of my classmates did not have that counter weight, so they

did not see very much distinction between crime and violence on
the one hand and so-called law enforcement or police agents or
offcers on the other. They saw them more as part of a total pat-
tern, of a rather cynical, corrupt society.

Mr. Edwards. Thank you very much. Dr. Clark. I believe my
time is up, Mr. Chairman.

Mr. CoNYERS. The gentleman from Ohio, Mr. Kindness.

Mr. Kindness. Thank you, Mr. Chairman.

Dr. Clark, I want to join in welcoming you and thanking you for
your participation in these hearings.

I would like to direct your attention to your statement on page 1,
so I can understand that better. During that period of 1970 to 1973
of the analysis done by the Metropolitan Applied Research Center,
in relation to that period, it indicates there were 248 alleged perpe-
trators who were killed by New York City policemen, and of the
248 victims, 73 percent were from minority groups.

In the following paragraph it is indicated that in this period, 96
minority persons were killed by white policemen, which would
seem to indicate that if we took the remainder of 248, that would
be 152 who were killed by minority policemen.

Do you happen to have any figures that would indicate the per-
centage of minority police officers, as compared to the total, during
that period of time? Would they be a larger proportion of the offi-
cers — Well, I guess particularly in the areas where this occurred, I
suppose those figures would be difficult to obtain.

Dr. Clark. No, there is no percentage of police officers, for mi-
nority officers, and that's still true. In New York City there's a
case before a Federal court now which is seeking to increase the
percentage of minority officers.

I wish that I had brought the total report here

Mr. Kindness. That seems to indicate then a disproportionate
number of these killings were perpetrated by minority police offi-
cers.

Dr. Clark. Nonwhite? No, that's not my recollection of the study
at all. It's a rather small proportion. But you're right, that it would
seem to be indicated here. But that is not the case in terms of my
recollection of the study.

I pulled that study out of the files in preparation for this hearing
but I did not bring the complete study with me. I will seek to cor-
rect or to look at that factor and let you know.

Mr. Kindness. Might I ask, with the consent of the subcommit-
tee, that what you can develop in that area be made a part of the
record of the hearing?

Dr. Clark. Surely. I'll get the staff on it right away.

Mr. Conyers. Without objection.

Mr. Kindness. Further, Dr. Clark, in your statement on page 5,
there is a chart which is related to an article appearing in the New
York Times on August 26, 1973, which has been headlined "Three
of Five Slain by Police Here Are Black, Same as Arrest Rate."
That is followed by the statement, "The disproportionate involve-
ment of minority in shooting incidents is not related to their in-
volvement in felony arrests"

Dr. Clark. By another study here.

Mr. Kindness. I am wondering whether there is further explana-
tion the subcommittee might have for that statement, since the
percentages of shooting opponents versus felony arrests seems to be
somewhat related but not right on target.

Would it be possible for you to provide us with information that
would help to substantiate the statement that "The disproportion-
ate involvement of minority in shooting incidents is not related to
their involvement in felony arrests"?
Dr. Clark. I certainly will.

That statement came from looking at other studies in various
cities in which there seemed to be no consistent relationship be-
tween the shooting of minorities. Now, this study is of one city,
New York City. If I remember correctly, and I should have put it
in here, in Philadelphia, for example, there appears to be no con-
sistent relationship between felony arrests and the shooting of mi-
nority perpetrators.

Where there is no relationship, the percentage of minorities shot
is higher than even the percentage of minorities arrested. But I
will get that information.

Mr. Kindness. I certainly would appreciate that.
I wonder, in that connection, if there are other metropolitan
areas where such facts are available to you, if those might be sub-
mitted as a part of the record of this hearing, and would you be so
kind to allow us the opportunity to perhaps follow up on under-
standing that information if we have further questions?
Dr. Clark. Yes, sir.

Mr. Kindness. Thank you very much, sir.
Mr. CoNYERS. The gentleman from Texas, Mr. Hall.
Mr. Hall. Thank you, Mr. Chairman.

Dr. Clark, I, too, would like to welcome you to this hearing and
to thank you for your testimony.

There are one or two questions I would like to ask. One, you
stated that— those who participate in violent crimes do so because
they feel they have nothing to lose.

Do you mean by that that they feel they have nothing to lose in
society as a whole, or there is not sufficient penalty attached to the
commission of violent crimes in which they might receive a severe

sentence, or under some circumstances

Dr. Clark. My feeling is that penalty is irrelevant to those who
feel they have nothing to lose in society as a whole, that life
couldn't be worse anywhere.

I have read about those who believe they can control crime by
increasing penalties, by swifter justice, by more severe sentences,
by building more prisons. It is my considered judgment that those
sorts of alleged remedies are by no means corrective, but are likely
to increase the problem. I certainly believe that society has a right
and responsibility to protect itself, but I do not believe that society
protects itself by increasing hopelessness in an already oppressed
or depressed group of citizens.

To come back to your question, my personal point of view is that,
with the exceptions of crimes of passion and of white collar crimes
which are calculated crimes not generally seen in terms of vio-
lence, but violent crimes, crimes of assault, homicides— it is my
considered judgment these are perpetrated by individuals who have

given up on any possibility of a quality of life that is positive for
them. They have given up on the possibility of any constructive
role in society, and in fact, operate on the assumption that they
don't have a damned thing to lose.

In fact, in some cases — and I'm now really speaking as a psychol-
ogist — they may have a "moment in the sun" in the case of being
caught.

I noticed you had some question about the television media. The
one opportunity for such an individual to have some sort of ego
support is the consequence in the perpetration of a crime to be
caught and to be publicized.

Mr. Hall. Then it's your position, I assume, that punishment has
nothing to do with whether a person is deterred from committing a
crime or not?

Dr. Clark. That's my personal position.

Those like you gentlemen, middle-class individuals, have a partic-
ular perspective of punishment and penalty, which is a reflection
of your status in society. You have something to lose. You will be
embarrassed. You will be disgraced if your son or daughter were
caught committing a particular type of crime.

What is difficult for you to understand is that this society has
made it possible for a large, too large a group of individuals not to
have this perspective of punishment or disgrace.

Mr. Hall. I'm thinking of the Criminal Code that we have
worked on in this committee over the past year. Are you stating
that the penalties that we have set out in that code dealing with
violent crime are not sufficient, or are you saying that they are too
extreme or not extreme enough?

Dr. Clark. No, sir. I am saying they're not necessarily particu-
larly relevant to

Mr. Hall. Do you think we should not have any penalties for
violent crime?

Dr. Clark. No, I did not say that. I am trying to communicate to
you something that may be difficult for you to understand. I am
trying to put myself in the position of an individual who literally,
and whose day-to-day realities support the contention, that he does
not have anything to lose by violating what you consider to be the
normal and acceptable rules and regulations of the society. From
the standpoint of the perpetrator those rules and regulations have
already been so violated as far as his life is concerned, we are talk-
ing different languages, you see. You talk penalty, you talk punish-
ment, you talk about the kinds of things that make sense for indi-
viduals in the society who are more privileged. They do not make
anywhere near the same sort of sense for those who have been re-
jected by society. You would not be able to explain the high rate of
recidivism, if your concept of punishment was the concept which
these individuals understand. Their concept of punishment may
more likely be loss of status with others who share their rejected
role in the society, such as cowardice, or informants.

Mr. Hall. Well, you're not advocating two standards of punish-
ment, are you, for those in the middle class and for those who have
not attained that

Dr. Clark. No, sir. What I am advocating is that if you are really
going to eventually address yourself to the roots of violence, the

roots of racially related crime, you will have to do something that
is extremely difficult; mainly, a total reexamination and restruc-
turing of some of the givens and the assumptions and the explana-
tions of the society of which you are a part.

I do not believe that this is going to happen. I am not sure this
society wants to do this. I think we are going to continue to deal
with the problem in ways that will intensify it. We're going to con-
tinue to deal with it in terms of the perspective of the middle class
who, understandably, wants to protect itself from the manifesta-
tions of the desperation and frustration of the underclassed citi-
zens. We are going to continue to accept criminally inferior schools
which block the ability of these individuals from having any hope
of upward mobility. We are going to continue to have a pattern of
relationship between law enforcement officers and these individ-
uals based upon our assumption that they need to be and must be
controlled.

Mr. Hall. Doctor, don't you think that people who commit
crimes should be under some type of control?

Dr. Clark. I certainly do. I think that people who commit
crimes, should be controlled. I believe society should do everj^hing
within its power to prevent the commission of crimes. I am con-
tending, however, that this society is not doing that. It is not doing
everything within its power to reduce crime.

I think the society is permitting crime to increase and is dealing
with it in terms of allegedly punishing the crimes rather than pre-
venting the crimes. I certainly am not, and I am sure you gentle-
men will not believe, that I'm here advocating that crimes should
be permitted. Obviously not.

I am trying, and probably not too successfully, to say, ''Look, if
we really want to control crime, it's not as easy as increasing pun-
ishment and in building more jails, and having tougher police offi-
cers who will shoot first and ask questions later." All these things
do is increase the adversary relationship between the underclassed,
which provides a disproportionate amount of the crime, and the
rest of society. You will, in fact, be perpetuating a kind of enornii-
tive guerrilla warfare in this society. And if you continue to do it,
you will continue to have crime and violence.

Mr. Hall. Thank you. Doctor.

Mr. Con VERS. The gentleman from Ohio.

Mr. Kindness. Thank you, Mr. Chairman.

Dr. Clark, I just realized I have one other question in which I
would appreciate your help. I failed to follow up in relation to
these statements on page 1 of your testimony with regard to the
race of the police officer or policemen involved.

It is stated that black and Hispanic policemen each killed one
white alleged perpetrator out of that 248, which I believe would
mean that 23 of the 25 white victims of shootings would have been
shot by white police officers.

Dr. Clark. White, yes.

Mr. Kindness. Our figures don't seem to work out together. I
just wanted to direct your attention to that fact.

Dr. Clark. I'm going to get the whole original report and submit
it to the committee.

Mr. Kindness. Thank you very much.

Mr. Edwards. May I ask one quick question?

I'd like to clarify something you said earlier, Dr. Clark. Let me
ask you: Apparently it is your considered opinion that violent
crime is almost certain to get worse in this country because the
root causes are not being addressed either at the State, local, or
Federal levels; is that correct, sir?

Dr. Clark. Right, and that budget cuts will— someone asked nie
not too long ago what was my opinion as to the present economic
program of this administration and whether it was going to work.
My response was I didn't know. They said, well, how will we know?
I said it would seem to me that one barometer might very well be
the crime rate. If the crime rate decreases, it's working; if the
crime rate increases, it's not working.

However, I do not believe that that index— which I believe will
be a critical index of the effectiveness of any economic program —
will be used by others as an index of whether the economic pro-
gram is working or not. But I sincerely believe that if one wants to
know whether this particular approach to social services and the
responsibility of the Federal Government and State government in
meeting the basic needs of human beings is or is not sound, I think
there is probably no better index of it than what happens to crime,
particularly in underclassed areas of our society.

Mr. Kindness. Would the gentleman yield in that connection?

Mr. Edwards. Yes.

Mr. Kindness. Dr. Clark, have you done any studies or do you
know of any studies that would help us to get a better idea of this
factor: It seems to be my observation that in modern societies that
have experienced high rates of inflation, there is a parallel be-
tween those economic conditions on the failure of the value of ex-
change and the regard that people have for the rights of others
around them and the hopelessness that they encounter in their
lives.

Paralleling that seems to be a rise in violent crime, or various
types of crime in total, but particularly when you have a highly in-
flationary circumstance.

I'm not suggesting that inflation causes violence, but rather, that
there is a parallel. Do you have any thoughts you would care to
share with the subcommittee?

Dr. Clark. No, I have no studies and know of no studies, but it
certainly would seem to me to be a very valid hypothesis that
would be worth looking into.

There are general studies of the relationship between the eco-
nomic status of a group and the rate of crime, violent crime — by
the way, every time I say this, I really feel that another thing that
our society obscures are the various types of crimes. Violent crimes
tend to be concentrated in lower economic status groups. Nonvio-
lent crimes, white-collar crimes, tend to be concentrated among
more educated groups.

The society does not talk very much about nonviolent crimes,
even though it may very well be that if one looks at the conse-
quences of white-collar crimes in terms of individuals, it might be
even greater than the consequences of violent crimes. But violent
crimes are obviously more dramatic. They can be published.

Mr. Kindness. Thank you.

11-647 0-83

Dr. Clark. I thank it's a very valid hypothesis.

Mr. CoNYERS. You have been very helpful, Dr. Clark, in giving us
some perceptions that I think will be very important in terms of
the violence that is going on in this Nation and how we might leg-
islate and oversight the law enforcement responsibilities that are
connected with it.

Dr. Clark. Mr. Chairman, I would just like to add that I don't
know that my ideas are practical or politically — you know, it seems
to me that simplistic approaches to the problems seem to have
much more political sex appeal than any serious look at the deep-
rooted problems.

I just wanted to make it very clear that I am aware of the fact
that the ideas which I shared with you are not likely to have any
immediate appeal.

Mr. CoNYERS. Well, I am reminded of what prehaps your Repre-
sentative in Congress at one time said: "Keep the faith, baby."

Thank you very much.

Dr. Clark. Thank you.

[The prepared statement of Dr. Clark follows:]

Race and Pouce Killings: A Summary of Findings

(By Kenneth B. Clark)

The available evidence consistently supports the contention that blacks and non-
whites are more likely to be shot and killed by police officers than are whites. Youn-
ger blacks and Hispanics, below the ages of 24, are more likely to be killed by the
police. These findings are consistent in such cities as New York, Los Angeles, Chica-
go, Detroit.

In May 1974, the Metropolitan Applied Research Center (MARC) released a pre-
liminary report entitled "An Analysis of 248 Persons Killed by New York City Po-
licemen, 1970-73." This study indicated that in the 4-year period, between 1970 and
1973, 248 alleged "perpetrators" were killed by New York City policemen. Of the
248 victims, 73 percent were from minority groups (52 percent were black and 21
percent were Puerto Rican) and 10 percent were white. The racial identity of the
remaining 17 percent was unknown.

When the race of the policeman involved in the killing was noted, the results
were also significant. In this period, 96 minority persons were killed by white police-
men. Black and Hispanic policemen each killed one white alleged perpetrator. In
considering the age and race of the victims, an important factor emerged. In this 4-
year period, 39 of the victims (27 blacks and 12 Hispanics) were under 21 years of
age. Eight (8) of the white victims were under 21.

The staff of the MARC was able to gather this information from a search in the
New York Times Index supplemented by information supplied by the Firearms Dis^
charge/Assault Reports maintained by the New York City Police Academy's Firmg
Range. [The cooperation of the New York Police Department was an invaluable
HSS6t) to this studv 1

In the 7 years since May 1974, there has been an increase in the use of deadly and
excessive force by police officers. Community awareness has also increased. Commu-
nity groups and human rights agencies and concerned citizens have met to discuss
the problem and develop strategy for stemming the spreading practice of police bru-
tality and killings. In an address delivered on November 10, 1979, Assistant Attor-
ney General Drew S. Days, III, mentioned that Kerner Commission's remarks "that
police brutality and abuse were not viewed in a vaccum. Instead, lawless behavior
on the part of police was identified as an overwhelmingly important factor in exac-
erbating racial tensions in urban centers * * *. Police abuse * * * reinforces in the
minds of minorities the symbolism of the police as an occupying army, as repre-
sentative of the segregated racist society which they feel exists * * *." ^

• U.S. Commission on Civil Rights. "Police-Community Relations in the City of Wichita and
Sedgwick County." U.S. Commission on Civil Rights, July 1980. p.l.

In a presentation before the Academy of Criminal Justice Science in March 1979,
James J. Fyfe gave the racial distribution of New York City police homicides for a
5-year period which slightly overlapped the MARC 4-year Analysis. The figures
show that for the period between January 1, 1971 and December 31, 1975, 64.1 per-
cent of the New York City population was white (5,076,022) and 17.5 percent of the
victims (549) of police shootings were white. The minority population comprised the
remaining 35.9 percent of the population (2,838,140), however, 82.5 percent (2,590) of
the victims of police shooting were minority. ^

Dr. Lawrence W. Sherman in October 1978 spoke before a workshop in which he
discussed the practice of pretrial execution by police who kill in the process of ar-
resting a person for an alleged crime. Shooting a fleeing burglar in the back cannot
be justifiable self-defense. In his nationwide study. Dr. Sherman found that most of
the police homicides happened at night, in central cities, with few witnesses present.
Most of the victims of police homicides are males, between 17 gmd 30, and about half
of them are black. While Dr. Sherman found no breakdown of the Hispanic victims,
he was nevertheless able to state that "in certain cities, we know that up to 80 per-
cent of the victims of police homicide are members of minority groups.^

The 1977 data used by Lenox S. Hines showed that "the rate of blacks killed by
police remained at least nine times higher" than the rate of whites. "Although
blacks only comprise 12 to 14 percent of the Nation's population, they comprise at
least 50 percent of those killed by police."* In the 10 years between 1960 and 1970,
police killings in Philadelphia, which has a black population of 22 percent, were
nearly 90 percent black. ^ In reviewing the Index crimes, Gerald D. Robin found that
37.5 percent of those arrested were black, yet 87.5 percent of those killed by legal
intervention of the police were black.®

The issue of pretrial execution is clearly illustrated by a table Fyfe presented.

RACIAL DISTRIBUTION OF NEW YORK CITY POLICE SHOOTING OPPONENTS, AND PERSONS ARRESTED
FOR FELONIES AGAINST THE PERSON— JANUARY 1, 1971 to DECEMBER 31, 1975

Shooting Felony

opponents arrests'

(percent) (percent)

White 17.5 22.2

Black 60.2 62.4

Hispanic 22.3 15.4

Totals 100.0 100.0

' Calculated from a sample of 700 persons arrested for murder, non-negligent manslaughter, robbery, felonious assault and forcible rape in New
York City, 1971. Source: David Burnham, "3 of 5 Slain by Police Here are Black, Same as Arrest Rate," the New York Times, August 26, 1976, p.
50.

Origin: Fyfe James J. "Race and Extreme Police-Citizen Violence." The American University, The Police Foundation. March 1979. p.7.

The disproportionate involvement of minority in shooting incidents is not related
to their invoWement in felony arrests.

Even moi^ alarming is the information regarding the racial distribution of the
shooting incidents and the homicide victim.

^ Fyfe, James J. "Race and Extreme Police-Citizen Violence." Presented at the Annual Meet-
ing of the Academy of Criminal Justice, March 1979.

^ Lawrence W. Sherman. "What Do We Know About Homicides By Police Officers?" In:
"Police Use of Deadly Force: What Police and Community Can Do About It." A Workshop Con-
ducted by U.S. Department of Justice, Community Relations Service at the 1978 Annual Confer-
ence of the National Association of Human Rights Workers. October 1978. pp. 8-19.

* Lenox S. Hines. "Police Use of Excessive and Deadly Force: Racial Implications." In: "A
Community Concern: Police Use of Deadly Force." U.S. Department of Justice, Law Enforce-
ment Assistance Administration. January 1979. pp. 7-12.

^ Takagi, Paul. "A Garrison State in a Democratic Society." Crime and Social Justice. V. 1,
Spring-Summer 1974.

* Robin, Gerald D. "Justifiable Homicides by Police Officers." Journal of Criminal Law, Crimi-
nology and Police Science. 1963.

17.5

22.5

549

1,069

60.2

51.0

1,889

2,419

22.3

26.5

701

1,259

100.0

3,139

4,747

RACIAL DISTRIBUTION OF NEW YORK CITY POLICE SHOOTING OPPONENTS, JANUARY 1, 1971 TO
DECEMBER 31, 1975 AND VICTIMS OF MURDER AND NONNEGUGENT MANSLAUGHTER, JANUARY
1, 1973 TO DECEMBER 31, 1975

Shooting Homicide

opponents victims

White (percent)

Number

Back (percent)

Numtrer

Hispanic (percent)

Number

Totals

Number

» Source: New Yorl< City Police Department, Homicide Analysis Unit, Annual Report, 1976,

Origin; Fyfe, James J. "Race and extreme Police-Citizens Violence." The American University, The Police Foundation. March 1979. p. 9.

Police seem to have "one trigger finger for whites and another for minorities." '

In New York City police shooting rates between 1971 and 1975 were strongly asso-
ciated with variations in homicide rates and violent crime arrest rates among the
races. This is true in other cities as well. For example, Fj^e found that in Memphis,
between 1969 and 1974, the likelihood that a black property crime suspect would be
shot during the course of his arrest was more than twice that of a white in the same
situation. Moreover, more than half the blacks shot and killed by Memphis police
officers were unarmed, while only 12.5 percent of the whites killed were unarmed.^

In a report on the use of deadly force by the police, a group studied the data in
seven cities: Birmingham, Alabama; Detroit, Michigan; Indianapolis, Indiana;
Kansas City, Missouri; Oakland, California; Portland, Oregon; and Washington,
D.C.^ The report claims that "During the past 10 years the American police have
exercised increasing restraint in hostage situations, civil disturbances, protest dem-
onstrations, even in making arrests and dealing with juveniles." (Emphasis added.)

In the analysis of the findings of 370 shootings in the year 1973-74, the following
observations were made:

"The rates of shootings by police officers vary widely among jurisdictions, and it
is impossible, within the limits of this study, to say that specific factors are responsi-
ble for these differences. In Kansas City, however, it is possible to document vari-
ations in kinds of shooting of juveniles except in self-defense. After the enactment of
this regulation, the number of persons under 18 years old shot by police officers de-
clined sharply.

"The number of blacks and other minorities shot by police is substantially greater
than their proportion in the general population, but is not inconsistent with the
number of blacks arrested for serious criminal offenses. * * * Shootings of minority
juveniles, in particular, have been responsible for increased tensions and occasion-
ally violent disturbances in ghetto neighborhoods."

Catherine H. Milton and her associates provide demographics of victims, which is
important:

Sea:.— In the 320 instances noted, 308 of the subjects shot by the police were male,
6 were female, and the remaining 6 cases reported were incomplete or the victims
escaped unidentified.

^^e.— While the ages of victims range from 14 to 73 years old. 34 percent were
between 19 and 24. Almost three-quarters (73 percent) of the victims v/ere under 30
years of age, and 50 percent were 24 or younger.

Race.— Of the 169 citizens nonfatally shot almost 80 percent were black. In the
case of those who were killed by police use of firearms 78 percent were black.

An examination of the national figures on crime rates and the rate of use of
deadly force by police officers in the seven cities shows no consistent relationship. In
some cases, crime rate increases as shooting rates decrease. In other cases the re-
verse is true.

' Fyfe: 1979.

» Fyfe, James J. "Race and the Police: An Early Report on a Change Effort." Presented at the
Annual Meeting of The American Society of Criminology. November 1980.

9 Milton, Catherine H., Jeanne Wahl Halleck, James Lardner and Gary L. Abrecht. "Police
Use of Deadly Force." Police Foundation, 1977.

In a study covering the period 1974-79 in Los Angeles, Marshall W. Meyer found
that of the 584 suspects shot by police, 321 (55 percent) were black, 126 (22 percent)
were Hispanic, 131 (22 percent) were white, 6 (1 percent) were nonwhite "other." ^°
In this period 55 percent of all persons shot at by police officers were black, 53 per-
cent of those actually hit were black, and 50 percent of those black persons actually
hit were fatally shot. Not only were blacks shot at, hit and killed by police, at a rate
which was far over their representation in the general population, but also at a rate
which exceeded their representation in the criminal population.

TESTIMONY OF M. HARVEY BRENNER, PH. D., SOCIOLOGIST,
SCHOOL OF HYGIENE AND PUBLIC HEALTH, JOHNS HOPKINS
UNIVERSITY, BALTIMORE, MD.

Mr. CoNYERS. Our next witness, Dr. M. Harvey Brenner from
Johns Hopkins University, has been before congressional commit-
tees many times. He has taught at Harvard and at Yale Medical
School, serves on the editorial board of the Journal of Socio-Eco-
nomic Planning Sciences, and has been very concerned about the
subject matter that he brings the subcommittee here today.

Without any further ado, we will incorporate your carefully pre-
pared remarks in their entirety into the record and allow you to
proceed in your own way. Welcome again to our subcommittee.

Dr. Brenner. Thank you very much, Mr. Chairman, and mem-
bers of the subcommittee.

Much of the testimony I would like to discuss with you this
morning is contained in chart form, which I would like to explain.
These charts appear in the back of the summary statement that I
am giving, and I would like to refer to these as I read from the
prepared statement and make general comments.

Evidence of the increasing violence directed against minorities
has been presented over the past several months to the Criminal
Justice Subcommittee of the House Committee on the Judiciary. It
is the argument of this testimony that the national and regional
economic situations, and especially the rates of unemployment, rep-
resent the dominant influence on violence against minorities, as
well as on violence in the United States in general.

Research over the past decade, especially reports by Brenner and
others to this committee, to the Joint Economic Committee of Con-
gress, the House Budget Committee's Task Force on Human and
Community Resources, and the Senate Finance Committee, has
shown in detail the strong relation between deteriorating economic
conditions, and particularly increased rates of unemployment, and
violent crime, including homicide and property crime.

It is not a simple matter to measure the incidence of substantial
violence against minorities, but one outstanding instance of this
phenomenon is found in the mortality rate of nonwhites due to
homicide, as reported by the National Center for Health Statistics.
Over the past 20 to 30 years, the pattern of homicide and violence
in general has changed so as to reflect not only deleterious econom-
ic conditions in general, but those for youth in particular.

The youth unemployment rate, expressed as a ratio to the over-
all unemployment rate, has been the single most important factor

'° Meyer, Marshall W. "Police Shootings at Minorities: The Case of Los Angeles." The Annals
(American Academy of Political and Social Science on The Police and Violence). November 1980.

in the national rate of homicide and criminal violence in general in
the United States at least since the 1960's.

Statistical evidence for this statement is shown in table 1 and
figure 1. May I ask you to turn to those, first perhaps to figure la
as it's given here. The title of figure la is "The Total Nonwhite
Male Homicide MortaHty Rate," where the predictor is a -multivar-
iate model, meaning that we are explaining statistically the histori-
cally relationship between a number of factors and in this case the
nonwhite male homicide mortality rate.

The picture, the graph indicates by the solid black line the actual
nonwhite male homicide mortality rate since 1950 in the United
States. The dotted line is what we would predict on the basis of sev-
eral variables, including the youth unemployment to total unem-
ployment rate, the proportion of the population, and the proportion
of the population aged 15 to 24 years of age.

These data occur on the first table, table 1: The rate of youth
narcotics arrests, and the average of per capita income trend over
the period.

The most powerful factor influencing the nonwhite male mortal-
ity rate and the rate for nonwhites in general is the unemployment
rate for youth as a ratio to the total unemployment rate. This
occurs in the equations on table 1, the equations 7 and 8 for non-
whites and nonwhite males.

On the next graph, which is figure lb, we see the total male
homicide mortality rate without considering race. The white mor-
tality rate over time, the shape of that trend, set of trends, is very
similar as it turns out to that of nonwhites, and has many of the
same— indeed, nearly all of the same predictors. As one can see by
an examination of the chart, the combined effect of these predic-
tors predicts very well, as indicated by the dotted line, the move-
ment, and turn of the solid line, which is the actual male homicide
mortality rate. . .

What is involved, again if we turn back to table 1, what is in-
volved in the prediction of that rate is in a very dominant way the
youth unemployment rate to total unemployment rates. The per
capita income changed, but not the rate of youth narcotics arrests.
On the other hand, the proportion of the population 15 to 24 years
of age continues to be an important predictor for this source of
mortality among males.
Mr. Kindness. Mr. Chairman, may I ask a question?
The mortality rate indicated in figure la, both lines go down
from about 1971, I guess it is. Could you comment on that?

Is that the decline in the age group

Dr. Brenner. It is partially tnat. That's mcnily, in effect, as it
turns out, on white homicides, the whit<^ uomicide rate, but not
nearly so much on the nonwhite. There is, in fact, a decline and it
is real. The way it usually operates on the nonwhite homicide rate
is apparently to increase the proportion of younger persons in the
population who are nonavailable or able to participate in the labor
force, thus increasing their relative share of unemployment.

The reason we know that that is the proper explanation is that
in the case of the nonwhite homicide rate for males— this is equa-
tion No. 8 on table 1— the population aged 15 to 24 years of age is
not a significant factor, whereas the youth unemployment rate

ratio to total unemployment rate is a very powerful factor. So that
this may well operate, this proportion of youth, may well operate
and continue to operate in the case of white homicide, but does not
seem to operate directly in the case of the nonwhite homicide rate,
nonwhite male homicide rate.

It can be seen that the impact of this unemployment factor was
considerably greater on the homicide death rate of nonwhites as
compared with whites, and males as compared with females. By
comparison with the impact of this unemployment factor, youth
narcotics activity, as measured by the arrest rate, for example,
tended to affect only the white homicide rate.

The significance of youthful unemployment has been overshad-
owed during most of the 20th century by the adult unemployment
rate as the outstanding predictor of criminal aggression, as can be
seen in figures 2 through 4.

If we can turn to those figures, starting on 2a, we have some in-
dications of how the overall rate of employment acts essentially as
a preventive to imprisonment and violent mortality. For example,
figure 2a itself deals with total prisoners received from courts by
State penal institutions in the United States. These are State pris-
ons.

The chart on the left, on the extreme left, shows the raw data in
numbers and shows that there was a trend in those data. That
trend is largely explained by changes in population.

When we hold that trend constant by removing it, we obtain the
graph that occurs right in the middle of the page, and it's called
detrended data. When we now superimpose that graph on the em-
ployment rate for the United States as a whole, we observe a very
clear inverse relation between the two, so much so that the impris-
onment frequency holding constant the trend is virtually predicted
by the unemployment rate or inverse to the employment rate in
the United States. This is again all prisoners received from courts
during the year by State institutions.

Figure 2b analyzes these same data in greater detail, using engi-
neering methods and econometric methods. For example, one of the
more popular methods used by engineers is the Fourier analysis to
look at changes in the wave-like patterns of cycles in various sorts
of geophysical and natural activity. We are able to examine these
data in much the same way because our economy goes through pe-
riods of cycles, as can be seen in figure 2b, in the right-most of
these graphs, for example, where the data are depicted in terms of
their usual cyclical patterns. Once again we observe a very close to
perfect inverse relation that the eye can easily discriminate be-
tween changes in employment, as we saw on the previous graph in
2a, and prison admissions in the United States for all of the States.

In figure 3a we are looking now in particular at one prison so as
to focus on a concentrated area in the United States. This is New
York State and we will be examining imprisonment at Sing Sing
prison in Ossining, N.Y. We are looking in particular at imprison-
ment for the crime of murder. These are persons who have been
sent by the courts to prison for the crime of murder.

The lack of a picture, the lack of a graph in the left-most section
of figure 3a indicates that these data have no trend, neither
upward or downward, and indeed, when we look at the picture in

the middle, we observe that at one point, just within the period of
the Second World War, there in fact was zero admissions to prison
for the crime of murder. This number rises to as high as 71, which
occurred during the Great Depression in the United States.

As we match this curve with employment for the State of New
York, as we did for the Nation as a whole in previous graphs, we
see once again how very clearly even the frequency of persons in
prison for murder replicates inversely the state of employment for
the State of New York. Once again, the more technical and de-
tailed analyses, as performed through Fourier and polynomial and
other technical analytic devices, occurs in figure 3b. One can see
perhaps even more clearly the nearly perfect inverse fit of impris-
onment for murder in New York State — in this case at Sing Sing
Prison — to changes in employment.

Mr. CoNYERS. Dr. Brenner, in figure 3a, is there some danger in
singling out murder as the crime component, when we have been
told that murderers are a unique breed in the prison population,
that they frequently are model prisoners, because of the increasing
number of crimes of psission they often do not otherwise have
criminal records and that they may be asymptomatic of the point
to which their work is directed.

Dr. Brenner. Yes, sir. That is a very appropriate question that
one hears from time to time, which is why I have in figures 4a and
4b a companion crime of violence that is also associated with prop-
erty crime, namely, that for robbery, the instances of imprison-
ment for robbery at Sing Sing Prison. One sees virtually the same
type of relationship.

I might say, Mr. Chairman, that for nearly all major crimes,
major indicating those which the FBI has included them in its
index, for nearly all of those one would see virtually the same type
or relationship. Indeed, whether it is property crime for which im-
prisonment occurs, whether it is forgery, for example, or assaultive
behavior, the general patterns are quite similar. And so they are if
one would examine not imprisonment but the arrest rate or crimes
known to the police, as I have testified earlier before you.

This then takes us, of course, to figures 4a and 4b, which is an
analysis of robbery. The reason they are presented here today is
that they themselves concern violence as well.

Returning to the text of the testimony itself, it should perhaps
not be surprising, therefore, that we in this country are facing, si-
multaneously, relatively high unemployment rates in a disturbed
national economy, extraordinarily high rates of criminal violence,
and unusually high rates of violence against minorities.

The statistical evidence indicates that the current violence
against minorities would appear to be part of a more general pat-
tern of increased criminal aggression in the United States at this
time. The question still must be answered as to whether the direc-
tion of this violence is more sharply pointed toward minorities
than toward other populations.

In my judgment, there is an added factor at work which also
stems from national economic distress. During periods of a general-
ly depressed and anxiety-ridden economic climate there is a tend-
ency toward national conservatism and a powerful desire among

many in the population to embrace older values and older preju-
dices associated with those values.

Some individuals who are especially distraught under conditions
of economic stress are prone to mental disorder and even suicide. I
would like to call your attention to figure 5a, in which we have
represented the suicide rate, the entire suicide rate in the United
States as it has occurred from the beginning of this century. That
is the crossed hatch line. You will notice its very fine inverse
graphic relation to employment, which is the same economic indi-
cator that you have been looking at in earlier graphs.

Turning to 5b on the next page, we can make a very similar
statement about the homicide mortality rate. In this case I have
not asked you to focus on nonwhites but rather on whites specifi-
cally to make it clear that there is very little, indeed, racial dis-
crimination with respect to the magnitude of the violence directed
against persons in the society.

In this case we have a rather important source of mortality for
young black males in the ages 25 to 29 and in the homicide rate,
again quite as inverse to changes in employment as we saw for the
suicide rate.

Finally, as a comparison piece, to indicate the importance of
stress generally as emanating from disturbed behavior on the na-
tional economy, as they have an impact on mortality patterns that
are clearly associated with stress. Graph 5c shows the relationship
between circulatory system disease mortality, which is mostly
heart attack, and the employment rate, with a lag of approximate-
ly 3 years. We are looking at a sample here of young black males —
nonwhite males; I'm sorry — in the age group 35 to 39. If we were to
look at in the other age of black men or women, or any age virtual-
ly of white men or womeA, we would see a pattern that is very sim-
ilar.

Others, however, become prone to great hatred and violence di-
rected toward others — especially those minorities which are tradi-
tional scapegoats and subjects of pejorative stereotyping.

The meaning of this sentence in the testimony is that in addition
to the general sense of stress that occurs among people who most
directly feel it, and who are then subject to violent and other stress
reaction, there is a general tendency toward extreme views in the
society, extreme ideological positions, whether of the left or right,
however we may characterize it, whether in religious behavior or
otherwise understood ideological points of view, which seems to
temper and which seems to influence further the climate in which
the violence takes place, and by the studies I am familiar with,
often has the feature of directing the course of violence toward one
group as against another. But in general, the evidence seems to
be — from this paper and other statistical studies — that the overall
level of violence is quite consistent with the general state of the
economy.

There are those who argue that the most powerful, if not the
most effective or efficient, method of reducing criminal aggression
is to insist on considerably harsher prison sentences or the death
penalty. Their voices are often loudest during periods of national
economic distress, when many individuals in the population are
more willing than usual to show hostility toward their fellow citi-

zens. Thus, one can see that aggression only leads to even greater
aggression.

More tragic, perhaps

Mr. CoNYERS. Do you mean the aggression of the private sector is
met by aggression from the Government? Is that what you
were

Dr. Brenner. Yes, sir, that's what our statistical evidence indi-
cates.

More tragic, perhaps, is that execution itself usually occurs
under distressed economic conditions — I might say that these are
new findings that have not been presented elsewhere — and in-
creased unemployment in the short-to-intermediate term in partic-
ular, referencing table 2. This is the case for executions of both
whites and nonwhites.

May I point out that on table 2, the top two rows of which repre-
sent the statistical relationship between the impact of economic
and demographic factors on the rate of executions, in this case it is
the executions of white persons in the United States over the 20-
year period of 1951 to 1970.

Mr. CoNYERS. Which figure?

Dr. Brenner. I'm sorry. It's table 2. There is no figure represent-
ed for this material.

The interpretation of these equations is that the total unemploy-
ment rate at zero lag within the year, and the total unemployment
rate occurring 2 years before, has the effect of increasing signifi-
cantly the rate of executions of white persons in the United States

If we add to that the state of the general economy, as indicated
by per capita income, we will find that it is the decline in per
capita income that is responsible for a decline in executions — I'm
sorry. It's the reverse. The decline in per capita income that is re-
sponsible for an increase in executions, and the increase in unem-
ployment that is similarly responsible for increased executions. No
doubt the proper interpretation of these data is that with the dete-
rioration of the economic situation, that is, added unemployment
and lower income, we have considerably more very severe violent
crime with, in turn, a higher rate of executions of whites. We will
see the same type of relationship in the execution of nonwhites, the
numbers of which, the absolute frequency of which, is rather simi-
lar to that of the frequency of executions of whites. Also, the popu-
lation of nonwhites is obviously nearly 10 percent of the white pop-
ulation.

In any case, we observe the very same factors operating. In this
case, the important unemployment indicator is the ratio of non-
white unemployment to total unemployment, as, in other words,
quite regardless of the economic cycle and features of structural
change in the economy.

As the nonwhite unemployment rate increases, relative to that of
the general unemployment rate, we find a considerably higher in-
stance of executions of blacks, almost certainly due to an increas-
ingly higher severe rate of criminal violence by them, as we do
similarly for whites in previous equations. Thus, overall, the statis-
tical evidence indicates for us that it is predominantly the econom-
ic situation that influences that most extreme measures taken by
the society to attempt to punish and deter; namely, execution itself.

It is a feature which responds to the crime rate and responds to
unemployment and decline in the economy, and from this evidence
it lags, that is, it follows the rate of crime. It does not deter, the
subsequent rate of crime as can be indicated statistically.

We observe, then, that far from being a source of reduction of
aggression, capital punishment has usually been the result of
criminal aggression which, in turn, has been heavily determined by
economic distress.

It seems clear that unless and until we, as a nation, come to
grips with unemployment, economic distress in urban areas, and
regional economic dislocation, we shall not make significant prog-
ress in dealing with criminal aggression in general or violence
against minorities in particular. Rather, we will find the society
spending even greater resources on criminal justice and invoking
increasingly severe penalties, but with little of the intended effect.

Mr. CoNYERS. Thank you.

What is the understanding and support for these findings that
you have presented to us, many of which are expansions of your
previous work and some of which are proofs that are now being of-
fered for the first time? To what extent are these relationships un-
derstood and supported in several communities: one, your own pro-
fessional community, and two, in the general population?

Dr. Brenner. My understanding is that in the population or re-
searchers who deal with matters of criminal justice, both econo-
mists and sociologists, and, indeed, medical researchers and psy-
chologists, as Dr. Clark testified immediately before me, that these
are the plausible relationships and confirm what the literature oth-
erwise indicates from studies that we have had with us for several
generations in the United States, in much of Western Europe, stud-
ies sponsored by international organizations, studies sponsored by
agencies of the U.S. Government, including the National Institutes
of Mental Health and the National Institute on Criminal Justice.

As to the general public, my own sense of its response — and I'm
only able really to garner that through the media themselves. I be-
lieve it was last week that the U.S. News and World Report pub-
lished a major front page and a subsequent followup piece on what
appeared to be a crime wave and criminal violence in the United
States in the past few months.

Nearly every opinion that they were able to solicit from persons
in positions of unusual ability to observe the crime pattern, as well
as the general public — and I really have never seen quite this
amount of unanimity before — seemed to indicate, virtually without
exception, that the feeling generally was, across the United States,
that this is quite clearly attributable to an unusually depressed
economic situation in many different parts of the United States.

Mr. CoNYERS. The more I struggle to put this area of our legisla-
tive responsibility in perspective, the more I am concerned about
the unscientific approach in the United States toward law enforce-
ment criminal deterrence, and criminal justice generally. There is,
to me, a huge bias growing in several different subject matters and
very unscientific and unprofessional approaches to the problem of
crime are not uncommon.

So I'm asking, do you have any views that are similar to or dis-
similar from mine?

Dr. Brenner. Perhaps slightly dissimilar. The similarity is that
it is evident that for reasons that I, as a professional, am not able
to explain, despite the evidence of so very many studies over so
many decades in our country and abroad, the sense of this material
and much of the evidence has been available to our legislators and
to our academic professionals, to our jurists, and there would seem
on the face of it to be no reason in a democracy that this informa-
tion should not have come to them.

At the same time, my sense — and this is the dissimilarity in our
views — my sense is that since our legislators are certainly also
members of the general public and, indeed, especially sensitive
men and women who feel much more clearly than many the sense
and tempo of the general public, I would be extremely surprised if
our legislators were not very well acquainted themselves with the
public view on the basis of criminal aggression, the criminal justice
problem by and large in our country, and my sense is that in gen-
eral this information is not unusual, is not peculiar in any way,
and will not be surprising to our legislators. In fact, most, I would
imagine, would be rather unsurprised and would find it rather old
stuff.

Mr. CoNYERS. But I'm not referring to the relationship that you
have rather brilliantly reexamined here today, the relationship be-
tween crime and economic conditions. I'm talking about the failure
of the professional sciences to address this subject. I base this upon
my attendance at a number of national meetings of criminological
associations, and associations of law enforcement officers, correc-
tional specialists, juvenile justice experts, psychologists, sociolo-
gists, and even medical practitioners.

The fact remains that legislators are frequently operating in a
vacuum without the help of the economists. It is not unnoticed to
me that you come here as a social scientist; but where are the
economists who are addressing the relationship of crime and eco-
nomic factors? Why don't the national organizations I've referred
to, these great bodies of scientists, come forward in a more orga-
nized way to help the Government and the lawmakers make deci-
sions on the basis of something more than "gut" reactions to in-
creases in crime?

Dr. Brenner. The question, of course, is very well taken. I have
cited the very, very many studies on this subject. Your own sub-
committee in the last 2 years conducted extensive investigations,
sessions into unemployment and crime, and produced a tome of tes-
timony and multiple thousands of pages, with some excellent
papers by some of the most important academics in this field in
this country. The evidence was consistent.

Your question provokes me, if you will, to make an observation
that perhaps we have come to the point in our society where the
evidence is, indeed, so overwhelming that we are unable to pay at-
tention to it. It is perhaps the situation of "not seeing the forest for
the trees," where the situation is really rather plain, and perhaps
both the situation of the academic researchers, the scholars and
the legislators, is that there is nothing to do, nothing that one can
do. It lies within the social and economic fabric and unless that is
in some way reconstructed we shall be living with this problem, yet
from time to time we can try repair efforts by adding more in the

way of criminal justice personnel, harsher measures. But funda-
mentally we must live with it, even though it grows.

I think the magnitude of the problem— and it's unusually large
among Western countries, in our country — the magnitude of the
problem and its very intrinsic relationship to the social and eco-
nomic structure has made people feel that it cannot be dealt with.
There then perhaps is a tendency — as your question seems to lead
to the feeling — there is perhaps a tendency for people to look to
other kinds of modalities of attacking it where, of course, in com-
parison to the fundamental issue, fundamental sources, it is not at-
tackable, and indeed grows and will continue to grow.

Mr. CoNYERS. Mr. Kindness.

Mr. Kindness. Thank you, Mr. Chairman.

I was moved by the chairman's question about economists. I re-
member that George Bernard Shaw said that if you took all the
economists and lined them up in a single line, they would not
reach a conclusion. Someone else — I think it was President
Truman — said that if you did that they would all point in different
directions.

The observation — and this is with all due respect to our econo-
mists and the professionals in the various fields of study that bear
upon crime and criminal justice — an element of commonsense does
sum this up, that in bad economic times we have, throughout
modern history, we have observed lawlessness of one sort or an-
other, violence affecting the interactions between people. That is
an inevitable element in our society I think which causes us to be
pointed in the direction as legislators of getting at the economic
problems.

Of course, there again, the economists can either help or hurt us,
and there are those who follow one theory and those who follow
another theory as to how we best reduce inflation and unemploy-
ment and the problems besetting our society that flow from it.

Perhaps if we could get together in that area we might have
some better answers to the questions relating to crime. For exam-
ple, in that connection I would certainly urge an across-the-board
income tax rate reduction of 10 percent per year for 3 years, and
that would help get more people back to work.

Mr. CoNYERS. Yes, the rich would be put back to work by that
proposal.

Mr. Kindness. The gentleman has to understand where the in-
vestments come from. It comes from those who have it to invest.
That's a part of our capitalistic system.

Mr. CoNYERS. My colleague sounds like those economists he was
describing earlier. [Laughter.]

Mr. Kindness. We aren't going to get at the solution to these
criminal problems if we don't get at the solution to the economic
problems.

I do want to thank Dr. Brenner for his participation today. It has
been helpful in putting in focus the subject matter. But I would ask
for a short course in interpretation on one of the tables after our
session. I just want to be sure what the symbols mean.

Dr. Brenner. May I just respond to the question of the short
course? I hope I will be forgiven for the use of those tables. This is,
I'm afraid, the standard method of presentation of these statistical

relationships. I was called on an emergency basis, I'm afraid, only
a couple of days ago to the meeting, and I was not able to put to-
gether a more extensive interpretation. But statisticians and econo-
mists who are familiar with the standard time series methods of
regression will be able to comment on that. I, too, will be able to do
that for you, if you wish, sir.

Mr. Kindness. Thank you. I would ask, Mr. Chairman, if in the
examination of these 'tables we come up with questions, that we
might direct questions to Dr. Brenner and have his cooperation and
understanding of the subject matter more deeply, and that those
might be made a part of the record of these hearings.

Dr. Brenner. Certainly.

Mr. CoNYERS. I think that's an excellent idea.

Mr. Kindness. Thank you very much.

Mr. CoNYERS. Mr. Edwards.

Mr. Edwards. Thank you, Mr. Chairman.

Dr. Brenner, I too thank you for your testimony. I find your sta-
tistics very persuasive, but I think they were predictable. I think
your statistics are something that people who have studied this
problem have understood for a long while. You have put them in
very specific scientific terms and I think it's a great contribution.

However, I am sure you understand that our views unfortunately
are not likely to be popular in Washington or in State legislatures
because they cost a lot of money. You really are calling for a fairer
and more equal society where we don't have an uneducated, unem-
ployed, underclassed, especially young black minorities. That's the
heart of the matter, isn't it?

Dr. Brenner. Yes, sir.

Mr. Edwards. So don't expect accolades or being invited to the
"Today Show" or the "Donahue Show." But certainly, I find your
views very welcome.

Let me ask you just one question that struck me when Dr. Clark
testified that he grew up in Harlem. It just happens that in 1941 I
was an FBI agent in New York City and worked in Harlem quite a
lot of the time. There was very high unemployment in those days,
as you know, in 1941 before the war, perhaps 25 or 50 percent, for
whites, too. Yet the crime rate was very low in Harlem at that
time. One could walk the streets of any part of New York in com-
parative safety.

Tell me, why didn't unemployment in those days cause crime?

Dr. Brenner. Well, it did cause crime in those days, too, but
there are continually several factors operating. There is not a sin-
gular cause that operates in isolation, obviously, from the others.

The prewar situation that you speak of in 1941 is rather signifi-
cantly different, as I tried to point out in the testimony, from the
postwar. This situation of unemployment has become a consider-
ably more powerful and sensitive factor among youth in relation to
crime than ever apparently in the Nation's history, as far back as
the middle of the 18th century.

Since the Second World War) as the date in this material indi-
cate, it is particularly the youth unemployment rate in relation to
the total unemployment rate. It appears to be the situation, in
other words, not only that the youth in question are unemployed,

but that they are much more heavily unemployed than the rest of
the population. It is a comparatively especially bad situation.

There requires to be not only a distinction between employed
and not employed nowadays, since the Second World War, but one
in which there is something of an isolation of the groups involved
and the concentration of them among particular subgroups of the
society well, well beyond what the society ordinarily has in terms
of unemployment, be it cyclical or structural, as it's referred to.
This particularly heavy and unusual concentration among youth,
particularly minority youth, has become especially important, not
only, by the way, in the United States, but in other countries of the
Western World, this concentration on youth it is argued largely be-
cause our ability to incorporate lower socioeconomic status of
rather poorly educated youth into a highly advanced technological
society such as our own becomes more and more difficult. The dis-
tance between the skills that the young people in question come
out of school with and the requirements of the society in terms of a
reasonable level of employment, a reasonable job, an ordinary job,
becomes more and more distant as we are apparently not able to
take more advantage of our increased sophistication, our increased
gross national product, since our minority youth in particular,
lower socioeconomic status youth, are not acquiring skills at a rate
sufficient to catch up with the growth of the economy and technol-
ogy.

This is not just a problem for our country. It occurs in Sweden,
for example, with an extremely low crime rate, but with one that is
rising, particularly among youth, and of course with Germany — the
United Kingdom is another extraordinary example, Canada. It is a
problem of developed society, generally. But it happens to be an ex-
quisite problem, an unusually severe problem in the United States
because we seem to complicate it with a racial discrimination over-
lay and an educational system that has not been able, for one
reason or another — and this is arguable — to keep pace with the
skill requirements of industry.

Mr. Edwards. Thank you.

Mr. CoNYERS. Could you reconcile these two statements that
have been made here this morning:

One, that the views you have presented here have met with a
surprising unanimity among the law enforcement community, but
second, that they are unpopular and will probably not lead to
having their conclusions effectuated.

Dr. Brenner. I would have to give an opinion.

Forgive me, but let me say first that I very much hope you are
incorrect — and you may well be correct — and I hope not. But it is
possible that with the concentration on the problems of unemploy-
ment that are quite particular to those individuals who are most
susceptible by their social and economic background to criminal
violence and criminal injury generally, that the Government of the
United States can, in fact, offer means of helping deal with the
strict social and economic problems if it wishes to.

It very much would seem to depend on the vision of our current
administration on where the priorities should lie. To the extent
that they are concentrated on this group, the benefit that the ad-
ministration will be able to secure will be both obviously in the

general health and well-being of our overall population and that of
the minority population, but in addition, economic and social policy
here is criminal justice policy and to the extent that is successful,
it will have the double benefit according to our historical data of
having a very pronounced effect on the rate of criminal violence.

Mr. CoNYERS. You pointed out that even in the weekly news
magazines there was surprising unanimity around the subject of
the relationship between violence and the economy. Our colleague,
Mr. Edwards, observed that your views are probably unpopular and
will not be well received and probably not fully implemented.

Can you reconcile those two observations made within the course
of one hearing?

Dr. Brenner. I will take, if I may, sir, the most hopeful view of
the lack of reconciliation of those comments, which is that my hope
is they can be reconciled, that they may in the first instance, in the
short run, be seen as fundamentally opposing each other, but that
as we perhaps as a nation ultimately come to see that the most
cost-effective, in terms of our own national resources, the most
cost-effective and efficient and overall beneficial to our Nation ac-
tivities concern the economic and social welfare of our lower socio-
economic status persons, that this, indeed, can be seen as the in-
strument of reconciliation of views that in the short term look
really quite opposed.

I have a hard time with your question when stated in the simple
realities and which you presented them, because I, forgive me,
would prefer not to believe them, especially over the long run.

Mr. CoNYERS. Well, maybe we have reached the point that we
can at least agree on the premises. And then when you ask us col-
lectively to deal with the solutions that are based on resolving the
problems posed within those premises, that's a different ball game.

Dr. Brenner. Yes.

Mr. Conyers. There seems to be a great deal of difficulty in ar-
riving at and implementing solutions that are based upon the
premises.

Dr. Brenner. Yes, there really are two issues, it seems. One is
questions of fact, what occurs, what can we believe, in terms of the
relationships to crime, a variety of factors that people ordinarily
understand associated with them.

The second issue is, once that is understood and accepted by
people generally, especially those who have some legislative effect,
then what then is the most efficient and effective solution, yes, sir.

Mr. Conyers. I am very pleased to welcome a new member to the
subcommittee on behalf of all the members of the Subcommittee on
Criminal Justice. We welcome Mr. McCollum from Florida and will
yield to him at this point.

Mr. McCollum. Thank you, Mr. Chairman. I wanted to say that
I'm delighted to be here. I apologize for being late. I was among
several of the freshmen over at the White House this morning and
I really looked forward to more fully participating with this hear-
ing and in the future, Mr. Chairman.

I would like to ask a couple of questions.

In 1967-68, my State of Florida opened a couple of facilities in
the corrections area which I am very familiar with, because of my
interest and my later being on the corrections committee of the

Florida Bar, a couple of facilities that were designed to rehabilitate
youthful offenders.

These operated for 2 to 3 years. They were primarily geared to
teach skills. Many of the offenders were blacks and minorities, and
I think from the studies that I have seen from down there, they
were very successful.

But they only operated for 2 or 3 years because taxpayer support
for holding those who were major offenders gave way and since we
did not have the facilities these became maximum security prisons,
just the opposite of what they were intended.

I do not know the overall national statistics. I don't know how
other States have fared in trying to do this, and I do not, having
come in late, know the extent, if any, to which you touched on this
this morning.

But do you believe, that we were to actually have a youthful,
first-time rehabilitation program in isolation in our prison systems,
either Federal or State, that we could, in fact, turn away a great
many of the youths today who are going back on the streets time
and time again for these crimes?

Dr. Brenner. That's a very complicated question. I think the ul-
timate criterion would be whether, in fact, the skills being taught
and developed under this system were actually geared toward utili-
zation by industry, and there were some reason to believe that the
industries in question would take advantage of those newly devel-
oped skills and bring those individuals into the labor force. That
would be the criterion.

My impression is that for that to take place there would have to
be something of a quite different attitude of the garden variety of
employer toward persons who had been in prison, a matter that
would not be very easy to establish, that you would have to estab-
lish situations of trust, which would be at the present moment
quite unusual, I think, but not inconceivable. But above all, it
would have to appear to industry that they benefited, truly benefit-
ed over the long term by bringing these individuals with newly de-
veloped skills into their employment service.

If that took place, and there were new hearings, and there were
potentials for very ordinary kinds of job careers by these offenders,
then it seems to me that the chances are excellent that these pro-
grams would be effective. The evidence from an evaluation of some
like the Florida case that you mentioned up to the present time
really is very good, unusually good, better than I would have ex-
pected. I'm usually an optimistic person about these things.

Mr. McCoLLUM. You have been very pessimistic about public
support. Of course, I have cited the case where it failed, mainly in
the taxpayer sense, because we weren't willing in Florida to build
more prisons to house those who were the stronger offenders and,
therefore, we let go of a program which had great potential to
work.

What do you think about the possibility of some tax-incentive
program, some business-oriented program, that would actually en-
courage industry to support such rehabilitation programs for first
offenders and perhaps gradually working them into the system on
an out-of-prison work basis? Is this something that, to your knowl-
edge, has been discussed among industry at all?

11-647 0-83-3

Dr. Brenner. I have not seen or heard of it being discussed. As
you presented, it seems to me an extremely innovative and creative
approach, and one terribly worthy of certainly experimentation
and demonstration.

The kinds of programs I have seen somewhat familiar with in
Europe that have been successful, especially in Germany and
France, use not exactly a tax incentive mechanism but things close
to it, essentially a partnership with industry that offers some very
clear benefits to industry analogous to tax incentives, where tax in-
centives is probably the more appropriate mechanism in the
United States since we're more familiar with it.

I think it is terribly innovative and

Mr. McCoLLUM. It might help to support that type of rehabilita-
tion prison system which otherwise the taxpayers wouldn't sup-
port, is what I'm getting at.

Dr. Brenner. That it will, certainly, and benefit the industry.
Mr. McCoLLUM. I am very interested in that and I appreciate
your comments.

Thank you, Mr. Chairman.

Mr. CoNYERS. We have appreciated your contribution and we will
look forward to working with you in procuring the information
that has been requested by the members.

This is the subcommittee's first experience with some of the data
relating crime to economic conditions, and we are particularly ap-
preciative of your testimony.
'Thank you very much Dr. Brenner.
Dr. Brenner. Thank you, Mr. Chairman.
Mr. Kindness. Mr. Chairman.
Mr. CoNYERS. Yes, Mr. Kindness.

Mr. Kindness. Dr. Brenner, if I might just ask one other ques-
tion. Has any work that you know of been done which isolates as a
separate factor, such things as inflation?

Dr. Brenner. Yes, my own work does extensively. The last major
published version of it was as a result of testimony, very extensive
testimony, to the Joint Economic Committee of Congress in Decem-
ber 1976. I will be happy to furnish you with that paper, paper No.
5, of the 1976 hearings under the then Chairman Humphrey.

Yes, indeed, along with unemployment, inflation was used by
myself, and per capita income and other measures such as present-
ed here.

Here's the difficulty with it. It depends on how we understand
income, essentially. If, as seems to be the case, the general impact
of increased income is salutary, that is, it decreases crime general-
ly, and it is also true that inflation erodes income, then it certainly
must be true, logically, that inflation is significantly involved in
these same crimes. The more sophisticated way this is studied,
however is not to isolate the inflation as such, but to work with
real per capita income, rather than to take, as an explanation of
trends in crime, personal disposal income, as such. We know that it
is deteriorated because of inflation, and so we will deflate that typi-
cally into its 1967 or 1940 value in order to make it comparable
over time.

Once that is done, the inflation is already built into the equation.
In all of the equations given in the testimony today, where income

is used— notice, please, it is given as per capita income— and it
always is deflated. That occurs on table 1. Notice the 11-year
moving average of real per capita income, and on table 2 the expo-
nential trend of real per capita income. So that inflation is built in
to the equation.

Notice, for instance, on table 2 with the executions. We see that,
in fact, with the decline in income, there tends to be an increase in
actual executions per population, the number of whites and non-
whites. So it is a real factor.

Additionally, there are occasions where inflation, in studies I
have done for the White House Task Force on Youth Employment
Problems, there are occasions in certain property crimes— auto
theft is one good example— where inflation, quite independent of
the general state of real disposable income in the country, also
seems to affect the crime rate above and beyond what real income
would ordinarily predict. So yes, this kind of work has been done.
I'm certainly not the only one to do it.

There is an economic literature, not a very large one, but there
is some dealing with crime in which inflation is a moderately im-
portant factor, but particularly important with respect to property
crime, where one might imagine it would have more real and
direct consequences.

Other than that, its importance seems to lie in its effects on the
general growth rate of the economy, which is the powerful determi-
nant, negative determinant, of so much of our pathology that is
with the general state of the economy doing better, which means
that there is real income increase and there tends to be an increase
in employment as well, and we have the added synergistic effects
of these positive sets of circumstances which overall in these equa-
tions lowers the crime rate.

Mr. Kindness. Thank you. Dr. Brenner.

Mr. CoNYERS. Thank you very much.

[The prepared statement of Dr. Brenner follows:]

Violence Against Minorities, and Criminal Aggression in General, as Related
TO National Economic Distress and High Unemployment Rates

(By M. Harvey Brenner, Ph. D., Division of Operations Research and Department of
Behavioral Sciences, the Johns Hopkins University, Baltimore, Md.)

SUMMARY STATEMENT

Evidence of the increasing violence directed against minorities has been presented
over the past several months to the Criminal Justice Subcommittee of the House
Committee on the Judiciary. It is the argument of this testimony that the national
and regional economic situations, and especially the rates of unemployment, repre-
sent the dominant influence on violence against minorities, as well as on violence in
the United States in general.

Research over the past decade, especially reports by Brenner and others to this
Committee, to the Joint Economic Committee of Congress, the House Budget Com-
mittee — Task Force on Human and Community Resources, and the Senate Finance
Committee, has shown in detail the strong relation between deteriorating economic
conditions, and particularly increased rates of unemployment, and violent crime, in-
cluding homicide, and property crime.

It is not a simple matter to measure the incidence of substantial violence against
minorities, but one outstanding instance of this phenomenon is found in the mortal-
ity rate of nonwhites due to homicide, as reported by the National Center for
Health Statistics. Over the past 20 to 30 years, the pattern of homicide and violence
in general has changed so as to reflect not only deleterious economic conditions in

general, but those for youth in particular. The youth unemployment rate, expressed
as a ratio to the overall unemployment rate, has been the single most important
factor in the national rate of homicide and criminal violence in general since at
least the 1960's.

Statistical evidence for this statement is shown in table 1 and figure 1, where the
ratio of youth to total unemployment rates is observed to predict the rate of homi-
cide, holding constant the effects of trends in real per capita income, youth narcot-
ics arrests, and the proportion of the population 15-24 years of age.

It can be seen that the impact of this unemployment factor was considerably
greater on the homicide death rate of nonwhites as compared with whites, and
males as compared with females. By comparison with the impact of this unemploy-
ment factor, youth narcotics activity— as measured by the arrest rate— for example,
tended to affect only the white homicide rate.

The significance of youthful unemployment has been overshadowed, during most
of the 20th century, by the adult unemployment rate as the outstanding predictor of
criminal aggression, as can be seen in figures 2-4. It should perhaps not be surpris-
ing, therefore, that we in this country are facing, simultaneously, relatively high
unemployment rates in a disturbed national economy, extraordinarily high rates of
criminal violence, and unusually high rates of violence against minorities.

The statistical evidence indicates that the current violence against minorities
would appear to be part of a more general pattern of increased criminal aggression
in the United States at this time. The question still must be answered as to whether
the direction of this violence is more sharply pointed toward minorities than toward
other populations.

In my judgment, there is an added factor at work which also stems from national
economic distress. During periods of a generally depressed and anxiety-ridden eco-
nomic climate there is a tendency toward national conservatism and a powerful
desire among many in the population to embrace older values, and older prejudices
associated with those values. Some individuals who are especially distraught under
conditions of economic stress are prone to mental disorder and even suicide (Figure
5). Others, however, become prone to great hatred and violence directed toward
others— especially those minorities which are traditional scapegoats and subjects of
pejorative stereotyping.

There are those who argue that the most powerful, if not the most effective or
efficient, method of reducing criminal aggression is to insist on considerably harsher
prison sentences or the death penalty. Their voices are often loudest during periods
of national economic distress, when many individuals in the population are more
willing than usual to show hostility to their fellow citizens. Thus, one can see that
aggression only leads to even greater aggression.

More tragic, perhaps, is that execution itself usually occurs under distressed eco-
nomic conditions, and increased unemployment in the short-to-intermediate term in
particular (Table 2). This is the case for executions of both whites and nonwhites.
We observe, then, that far from being a source of reduction of aggression, capital
punishment has usually been the result of criminal aggression which, in turn, has
been heavily determined by economic distress.

It seems clear that unless and until we, as a nation, come to grips with unemploy-
ment, economic distress in urban areas, and regional industrial dislocation, we shall
not make significant progress in dealing with criminal aggression in general or vio-
lence against minorities in particular. Rather, we will find the society spending
even greater resources on criminal justice and invoking increasingly severe penal-
ties — but with little of the intended effect.

MULTIPLE ll£GR£SS10N EOUATIONs' OF NATIONAL ECONOMIC INDICES ON U.S. HOMICIDE B1 AGE. SEX, AND RACe'

(1950-19761

Honicide RAtes

11-Year Ratio Youth *

Hoving Unemploytaent Popu- Rate

Average Rate lation of Youth

of Per to Total 15-24 Narcotics

Capita Unemployment Years Arrests,

Income Rate of Age Lag 2

D.H. F-Statistie

All Ages

1. Total

2. Hales"

3. Females"

4. Whites

5. White males

6. White females"

7 . Nonwhites

8. blonwhite males

9. Nonwhite females

.26

(1.40)

.49*

(2. 87)

.56*
(3.46)

.78'«
(6.421

.79"
(6.49)

.26
(1.38)

-12.48'
(-6.89)

-23. 46"

(-9.18)

-2.S4*

(-2.94)

-1.73
(-1.35)

-4 . 10*
(-1.99)

-.05
(-.06)

-33.33*
(-2.75)

-66.34«
(-3.01)

-8.07+
(-2.39)

.00089*
(1.92)

.00066
(I. 10)

.00056*
(2.76)

.00087*
(3.13)

.0012*
(2.62)

.00049**
(3.94)

.0064
(1.62)

.011
(1.55)

-.00052
(-.61)

1.93*
(3.02)

3.66**
(3.96)

.051
(.16)

.54

(1.65)

1.03*
(2.02)

-.07
(-.38)

9.93*

(3.01)

18.44*

(3.10)

2.51*
(2.11)

78.85**
(5.87)

155.69**
(8.86)

23.46**
(3.95)

S.45
(.58)

IS. 95
(1.10)

2.13
(.49)

126.49
(1.39)

243.85

(1.48)

100.79**
(4.02)

.19*
(3.30)

.30*
(3.37)

.06*
(2.11)

1.83 284.07**

1.67 283.60**

1.65 121.87**

1.67 401.64**

1.38 451.35**

1.73 180.23**

1.45 143.42**

1.45 147.93**

1.99 58.35**

Ages 15-24

3. Females

4. Whites

5. white males

6. White females

7. Nonwhites

6. Nonwhite males

9. Nonwhite females

.67**

-7.13

.0019

3.28*

8.76

.53*

(4.57)

(-1.46)

(1.56)

(2.86)

(.26)

(2.53)

.79**

-14.54

.0042*

5.40*

5. 25

.71*

(6.66)

(-1.71)

(1.77)

(3.06)

(.10)

(2.11)

.51*

-.18

.0051

.67

1.38

.28*

(3.04)

(.09)

(1.16)

(1.33)

(.094)

(3.14)

.54*

-1.99

.0013*

1.15*

-8.29

.37*'

(3.24)

(-1.02)

(2.94)

(2.36)

(-.58)

(4.33)

.SO**

-4.73

.0023*

1.81*

-9.18

.47*

(3.79)

(-1.44)

(2.98)

(2.25)

(-.39)

(3.33)

1.82

.00061

.12

-16.22

.24*

(.90)

(1.46)

(.19)

(-1.11)

(2.39)

.77"

-52.72*

.010

14.43*

169.04

(6.09)

(-2.45)

(1.47)

(2.39)

(1.02)

.76**

-105.43*

.02

29.74*

337.46

(6.00)

(-2.61)

(1.23)

(2.62)

(1.08)

.72**

-4.75

.0035

.85

36.59

(5.25)

(-.64)

(1.50)

(.39)

(.62)

1.80 215.94**

1.41 236.86**

1.69 177.52

1.91 307.60**

1.88 332.03**
2.05 42.16**

1.41 117.89**

1.46 101.13**

1.47 62.16**

^Coclirane-Orcutt transformation used in order to minimize residual autoregression.

't-stat±stic and F-3tatistic: significance at the .001 level - ••, .01 level w •, and .05 level - *.

*Pcr 100,000 population.

"ordinary least squares regression.

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Figure 5a

Sno.oo tsio.oo ISZ0.00

is».oo
TEfifl

t»M.0O

ISSO.00

1960.00

1970.00

RG. 1. Graphic analysis of Iho rclationshio between the suicide mortafity rate and the employ-
mcnl rate, Umlcd States. 1902-1370. Sol:d Imc, mvcncd unemoloymeni rate: crossed line.
suicrdc rate. Scaled dillercnce: Boin sencs arc scaled lor vic-wi/io such i!iat the greatest
amplitude from the arithmetic moan oi each series, wmch is set equal to zero, has been
normalized to +1.00 il positive, or — l.CO il negative. Del = 0: long-term trends subtracted
from the mortality series.

Figure 5b

*WOO.M

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tMO.CX)

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ItTO.OO

FIGu 2i Graphic Analysis of the relationship between the homicide mortality rate of while
males ages 25-29 and me 0010107.11001 rate. United States. 1912-1S65. Solid imc. inverted
tmcmptoymcnt raie; crossed !;ne, nomicido rale. Scaled difference: Both series are scaied
(or viewing such Dial the greatest amplitude from trs aninmenc mean of cacn series, whicn
is set equal to zero, has been ncrmaiiicd to t-l.uC i( positive, or —1.00 li negative. Del ■= 0:
loos^tcrm trends subtracted Irom the monaiity series.

Figure 5c

'\900.0l} ISIO.OO >l».CO

ISU.OO

TtflR

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FIG. 3. Graphic analysis of the re!ationshio between the circulatory system disease mortality
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States. 1912-1955 Sc/'d i-ne. mvoricd uncmpioymenl rate; erased /mc. Circulatory oisease
mortality rate Scnicd Oiilorcncc: Botn scncs arc scaled lor vicwmq sucn that iho qroatcst
ftmptitudc from inc af>iMmc;:c mean of each series, wmch is set equal to icro. has been
nofmalizcd to -rVOO if positive, or -1.00 if negative. Del = 0; long-term trends suotracted
from Itio mortaliiy scncs.

11-647

TESTIMONY OF CHARLENE MITCHELL, EXECUTIVE SECRETARY,
NATIONAL ALLIANCE AGAINST RACIST AND POLITICAL RE-
PRESSION

Mr. CoNYERS. Our final witness for today is Charlene Mitchell,
executive secretary of the National Alliance Against Racist and Po-
litical Repression.

We welcome Ms. Mitchell, whose activities in civil rights and
first amendment questions span nearly two decades. We accept into
the record your statement, and will carefully scrutinize the large
number of exhibits that are attached to that statement. We will
make certain that all of the members are furnished copies of the
statement and the exhibits.

Welcome to the subcommittee, and you may proceed in your own
way.

Ms. Mitchell. Thank you. I have a couple of others here.

Mr. CoNYERS. You have a couple of other exhibits? I see.

I'm not sure, but the Constitution and the Federal Criminal Code
may or may not be needed in the hearing record. That's why I re-
serve the right to have the staff review the exhibits before they are
entered into the record.

Ms. Mitchell. Thank you, Mr. Chairman, and members of the
committee.

I will not take a great deal of your time because I know that you
will be able to read this at some later time. However, I do want to
point to a couple of areas.

Today it is not just a situation where there is a rise in crime, but
there is a particular rise, in our opinion, in crimes against blacks
and other minorities by ultraright and hate groups, and paramili-
tary hate groups, and that there is a tactic that is being developed
which is essentially a terrorist tactic against blacks and other mi-
norities in the United States. It no longer is confined to the South.

I particularly want to point out that there is a book entitled
"The Turner Diaries." It is illustrated by Dennis Nix, a recent book
ironically published by a group calling itself the National Alliance,
hence to embarrass us a little bit. It is copyrighted in the name of
William L. Pierce, Box 3535, Washington, D.C., in 1978. This fright-
ening work, though couched in fiction, is generally acknowledged
to be a blueprint and manual for the Klan's race warfare.

It is done in a very futuristic style, but essentially the conclusion
of the book is that having killed all black people and all Jews in
the United States, and those who have somehow or other escaped
and gone, and have been pushed back to the East, that then this
future 1984, spoken from the year 2000, would begin to spread to
Europe and to the rest of the world.

Finally, the answer is that all people who are not killed who are
black will be hung. Those who are sympathetic to black people will
also be hung on lampposts and, finally, there would be a food short-
age and because of the food shortage those who came to the en-
clave, the white enclave, to get the food, would have to produce a
black head.

I submit that these are not just simple things that appear in
Xerox form across the country, for which you can write and re-
ceive, but they are, indeed, blueprints in terms of how to conduct

actual warfare, including how to make bombs, how to blow up the
White House and a number of other such things.

Our major concern is that there is an inadequate response on the
part of the Federal Government's agencies of law enforcement to
the crisis of racial violence and terror in our country.

The exhibits or the appendix which you have points to a number
of codes that we feel could be used. Indeed, it is our feeling that
they have been used on other occasions against many groups, par-
ticularly those who struggle for black equality, national independ-
ence movements, peace advocates, draft resisters, opponents of nu-
clear war, and other lesser progressive individuals and groups.

The National Alliance Against Racist and Political Repression
also opposes the use of Federal immunity statutes in grand jury
proceedings as unfairly coercive measures which deny witnesses
the full protection of the privilege against self-incrimination.

But there is no doubt that the grand jury process, particularly
when armed with authority to grant immunity, is a powerful inves-
tigative weapon. It is routinely used for that purpose by U.S. attor-
neys all over the country, except, it seems, in civil rights cases.

I want to respond, if I might, just for one moment to the testimo-
ny presented by Mr. Drew Days before the Subcommittee on Crime
in December 1980. His views were that it was impossible to pros-
ecute on a Federal level, people who were killed but not as a result
of carrying out federally protected crimes. In other words, in re-
sponding to, I think your question Mr. Chairman, that Mr. Days
said, "I am willing to accept that they are racially motivated kill-
ings, but I am not willing to accept that they thereby violate Feder-
al law." That's on page 156.

According to Mr. Days, if a group of Klansmen kill a black for no
other reason than because they subscribed to the vile doctrine of
the Dred Scott case, that blacks have no rights that the white man
is bound to respect, then the Klansmen do not violate 241 or any
other Federal law.

As you know, I am not a lawyer. But as I have read my history,
such a killing was precisely the sort of crime that the authors of
241 intended to punish. And if the right of a person not to be de-
prived of his life solely because he is black is not a right secured by
the 13th and 14th amendments, then those amendments have lost
all significance.

I would ask that the Civil Rights Division, which has not really
prosecuted a lot of these cases under 241, why is there such timid-
ity in asserting jurisdiction over cases that cry out for prosecution?
Is it not strange that, unlike all other governmental agencies
which make every effort to expand their jurisdiction to its outer-
most limits and beyond, the Civil Rights Division remains hobbled
by a narrow interpretation of its statutory authority which is both
self-imposed and unwarranted?

It may be that upon the completion of these hearings your com-
mittee will conclude that additional legislation is required to deter
and to punish the crimes which the Klan is committing. In particu-
lar, I would urge the ratification of the United Nations Convention
on the Prevention and Punishment of the Crime of Genocide, the
International Covenant on Civil and Political Rights, and the Inter-
national Convention on the Elimination of All Forms of Racial Dis-

crimination, still pending before the Senate Committee on Foreign
Relations. But I am skeptical of the efficacy of new legislation at
least until we know the reasons and motivation for the failure to
enforce statutes that are now on the books.

I have suggested what some of these reasons and motivations for
nonenforcement may be. Your committee will perform a distinct
public service by thoroughly exploring them — and others which
may come to light — here as well as in future national and regional
hearings, by publicizing your findings and by calling those respon-
sible to account. This is one means of attacking the grave deficien-
cies in the enforcement of Federal laws which should afford the
black community some measure of protection from Klan terrorism.

As already outlined, the Klan continues to violate Federal law,
most particularly those statutes that were expressly written to
combat the Ku Klux Klan. In addition to the Federal Govern-
ment's historic role in eliminating the badges and incidences of
slavery, the interstate nature of the Klan places its violent activi-
ties well within Federal jurisdiction. Therefore, the Federal Gov-
ernment is under an obligation to enforce these statutes with all
available means. Despite our criticisms of the Federal grand jury
system, if it is to be used, it should be used to the utmost against
the Klan.

The current guidelines on informants used by the FBI should not
hamper that body's investigation of the Klan. The Klan is precisely
the kind of group that may be infiltrated by the FBI as ''engaged
in activities which are likely to include the use of force or violence
in violation of Federal law."

Finally, I would propose that an interdepartmental task force be
set up which would include the Civil Rights Division and Criminal
Division of the Department of Justice, the FBI, Bureau of Alcohol,
Tobacco and Firearms of the Treasury, Naval and Army Intelli-
gence, as well as nongovernmental agencies and individuals to in-
vestigate and prosecute all violations of Federal law by the Ku
Klux Klan and other white supremacist paramilitary hate groups.

The role of Congress, Mr. Chairman, does not end with the mere
passage of legislation. Congress has a historic obligation to see that
laws protecting people from racist terror are enforced and imple-
mented at every stage.

Thank you.

Mr. CoNYERS. Thank you very much.

I am reminded that the ratification of the U.N. documents, con-
ventions and treaties, are exclusively within the purview of the
U.S. Senate. I personally have subscribed to them and urged their
ratification across the years.

I would like to ask if you could help us— and we're not trying to
evade our staffs responsibilities — in documenting the usages of the
grand jury in terms of civil rights and noncivil rights cases, so that
we can clearly argue how the grand jury might be used more effec-
tively.

Ms. Mitchell. Yes; I will be glad to send in some materials on
that. A lot of it has come from prior hearings that were held under
your previous committee [Subcommittee on Crime], but also some
other hearings on bills that were submitted.

But we know of a number of cases that the Center for Constitu-
tional Rights, for example, handled, where people were given im-
munity from prosecution and were imprisoned if they refused to
testify. Even some who testified were later themselves prosecuted
by other grand juries, which were not bound to respect the other
grand jury's immunity. For example, the Puerto Rican Liberation
Movement, were used in terms of earlier, in the Black Panther
movement. They have been in the labor movement. They have ex-
isted throughout. However, in no case do I know where immunity
has been used in terms of the KKK at this moment.

Mr. CoNYERS. Dr. Clark earlier pointed out legal violence as one
of the problems that exacerbate the trends that bring this commit-
tee into operation today.

Do you agree with the presentation he made, or do you have any
exceptions or elaborations you would choose to make?

Ms. Mitchell. I feel that in the main I agree with his testimony.
I would only add that in addition to legal violence, that when there
is governmental acceptance of legal violence, it exacerbates an at-
mosphere in which racial violence is allowed to grow and goes
beyond the bounds of what is "legal" violence and begins to be in
terms of "Minutemen" type operations.

For example, Tom Metzger from San Diego ran on a platform of
the Klan wanting to help the Border Patrol to keep Mexican na-
tionals out of the United States by shooting them as they got to the
border, therefore "saving us some money." So I feel that spreads
that kind of an atmosphere.

Mr. CoNYERS. Do you have any reactions or qualifications of the
hypothesis that has been offered by Dr. Brenner today in connec-
tion with his findings dealing with the relationship of the economy
upon the character of violence in our society?

Ms. Mitchell. Very much. I am probably one of those few people
who would be sitting at this table today who still lives in Harlem. I
am one of those people who rides a No. 3 train to work every morn-
ing—that is, every morning that the No. 3 train is operating.
[Laughter.]

I have watched young people who have become extremely desper-
ate. I have watched as they become desperate they tend to become
more often to succumb to drugs, and clearly, as they succumb to
drugs, they are more prone to commit crimes.

However, living in New York and working the way I do, I am all
over that city. I know that the upper West Side has also become a
victim of the very same thing; that we are running into a situation
where our mayor has called on more police protection for the
downtown stores and the East Side, but has not called for police
protection for any of these communities which are hard hit. How-
ever, there are killings of young people in these communities by
the police all the time.

It is clear to me, and I think it would be clear to anyone looking,
that if these young people had jobs, the decrease in the crime rate
would be immediately noticeable.

Mr. CoNYERS. Doesn't that put into juxtaposition the two poten-
tially conflicting considerations, one, Clark's argument about legal
violence, and two, the need for increased police protection in the
black community itself?

Ms. Mitchell. I think there is a need for increased police protec-
tion in the community

Mr. CoNYERS. But do you see the conflict that I'm arguing here?

Ms. Mitchell. Yes, and I want to go on about that for a minute.

It absolutely does exist, because what has happened is that the
police do not come in to protect the citizens of the community, but
seemingly as to put the community in an armed camp.

I have just heard an example of what happened last Tuesday, a
week ago yesterday, in Brooklyn, where a young man was coming
up out of the subway, a young black man, 24 years old. Coming up
ahead of him was a middle-aged white woman. She felt fear and
felt she was going to be robbed. When she got to the top of the
stairs, her husband was waiting for her. She said, "I'm going to be
robbed." At which point the man, an off-duty corrections officer,
shot the young man five times. Luckily, he was not killed. He's in
the hospital now, in Kings County Hospital.

The point I'm making is the young man was not armed, the
woman was not even sure she was being robbed, and the off-duty
corrections officer, not even a policeman, shot the man five times
because he thought he saw a shiny object. According to the police,
he saw a cigarette lighter.

What I'm saying is, the woman screamed because the idea of
black is crime; the off-duty corrections officer immediately thought
it was OK to shoot an unarmed young black man. I think as long
as the police feel that black represents crime, and with the racism
that they have absorbed within the police department, that this
will continue and therefore police presence in the community will
not necessarily abate crime but may increase legal crime.

Mr. CoNYERS. But nevertheless, you want more police in Harlem.

Ms. Mitchell. I very much would like to see more police protec-
tion in Harlem, not necessarily more policemen. We have police-
men all over Harlem and

Mr. CoNYERS. But how can you get more police protection with-
out more policemen?

Ms. Mitchell. Well, the problem is that — on 116th and Lenox,
114th and 8th Avenue, you can find 40 and 50 policemen any time
you go up there. And you can also go up there at the same time
and buy as many drugs as you want in their presence.

Mr. CoNYERS. What are the policemen doing?

Ms. Mitchell. They are standing around, doing absolutely noth-
ing. They ride around in their cars, and if you were to scream they
would go the other way. There are numerous people who can docu-
ment that.

Mr. CoNYERS. I am reminded of another hearing in which I asked
the former mayor of New York about a scene that had been de-
scribed by another witness that day; namely, that there were
places in New York City where anyone but a blind person could see
the trafficking in drugs going on in the broad daylight, with the
physical exchanges of drugs, accompanied by the exchanges of
money. The question was put to the mayor and his police associates
who were present for the testimony: Why can't that be interdicted?
Why are citizens at a community level forced to endure the shame-
ful exhibitions of crime being committed regularly and continually

and literally with no interference from the city that has the largest
police force of any city in the United States of America?

I can't accurately recall his response to that, but I think that
that question parallels closely the question that you raise now. It
leads me to a larger dimension of the discussion in which we're en-
gaged.

It is being seriously advanced that perhaps our national security
may more accurately begin with the protection of the home and
the community in which people live, as opposed to the global pre-
cariousness of relationships between some 200 nations in the
family of nations. Maybe if the law enforcement science, criminal
justice experts and others who are related to these considerations
would begin to examine the possibility of restructuring the crimi-
nal justice system so that the security in the community to be pro-
tected more clearly became the focal point of the law enforcement
personnel; namely, the police and precinct commander, then the
community security could become the basis of building up law en-
forcement in America. At a minimum we might be able to break
up those situations where crime of a felonious and very dangerous
sort is proceeding unchallenged by the law enforcement agencies.
Such brazen flaunting of criminal practices diminishes public re-
spect for law and order, an attitude then which becomes endemic
in the community. We quickly reach a point where it is impossible
to build up respect for the legal system — and the police system spe-
cifically.

Eventually the public perceives that there is basic unfairness in
the justice system, and that perception further endangers our na-
tional security.

That was not a question — hopefully not even a speech. But the
remarks you have made have triggered off those associations, and
unless you would care to respond to them, I would then yield to
Mr. Kindness.

Ms. Mitchell. Just for one-half a second, I think in the concepts
of national security, I think the money spent in terms of our prior-
ities, if they were spent in our communities, that that would indeed
go a long way in terms of determining whether everybody in our
country can have justice, since to a large extent it is based on one's
ability to have money or not have it.

Mr. CoNYERS. The gentleman from Ohio.

Mr. Kindness. Thank you, Mr. Chairman.

Ms. Mitchell, for the record, just so I can understand, is your ap-
pearance here this morning in behalf of the National Alliance
Against Racist and Political Repression?

Ms. Mitchell. Yes, it is.

Mr. Kindness. Could you for the record explain that organiza-
tion, it's officers, how it's organized?

Ms. Mitchell. Sure. The National Alliance was founded in May
of 1973, in Chicago, as an organization cognizant of what we consid-
ered to be a tremendous amount of repression, both racist and po-
litical.

It was a time when what is now, I guess, the celebrated case of
the Wilmington 10 was going on. It was a case in which we felt
there was a terrible injustice and felt that we wanted to fight
through on it. Along with the United Church of Christ, the Com-

mission for Racial Justice and other organizations, we certainly did
that. I think we were proved to be correct in that case.

Some of the other cases that we have taken on have also been
victorious. One is the George Merritt case, which was a case again
of a police situation in New Jersey and a young man was charged
with the killing of a policeman. And after three times of being
tried, we finally, of course, discovered that the State of New Jersey
had covered up the information that would have exonerated him.
Again, here the constitutional rights were also involved, and uncov-
ered this material and the case was thrown out.

Mr. Kindness. Does the organization have officers and a board of
directors?

Ms. Mitchell. The organization definitely does. There are co-
chairpeople. Rev. Ben Chavis, who is a member of the Wilmington
10, Angela Davis, Rev. David Garcia of St. Marks, Episcopal
Church; and Abe Feinglass, who is from the Meatcutters Union.

The vice chairpeople are Judge Margaret Burnham of Boston;
Ann Braden from the Southern Organizing Committee for Econom-
ic and Social Justice

Mr. CoNYERS. If the gentleman would yield; Ms. Mitchell, could
you just provide the member a list of the names and titles of the
officers?

Ms. Mitchell. Sure. I'm the executive secretary.

Mr. Kindness. Sometimes the question occurs as to whether a
person is speaking for an organization or for one's self as a witness,
and sometimes there are differences of view on that. I was getting
at the question of whether the organization meets and establishes
policies which are expressed in your testimony, or whether this is
your statement of your understanding of their

Ms. Mitchell. I am only authorized to speak as the executive
secretary of the organization when the board approves what I am
going to say, yes, as in this case.

Mr. Kindness. Thank you.

Thank you, Mr. Chairman.

Mr. CoNYERS. Mr. McCollum.

Mr. McCollum. Thank you, Mr. Chairman.

I just wanted to ask about some New York City questions you
raised that triggered some thoughts in my mind about police activi-
ties there. Being from Florida and only having visited the city and
not lived there as you have all these years, I don't fully know all of
the problems, but I have certainly read about them and listened to
you.

In your estimation today, in the black regions in Harlem and
other black regions of the city, what percentage of the police force
are black or are racial minorities?

Ms. Mitchell. Very, very small. As a matter of fact, there are
recent decisions that have been handed down that more black and
other minority police people have to be hired by the New York City
Police Department.

But I think that is true in the areas in your State as well. You
know, we're all very cognizant of the McDuffie case and

Mr. McCollum. It's the Miami area you're speaking of?

Ms. Mitchell. That's right.

Mr. McCoLLUM. You don't know the percentages, but it's small,
like what, less than 10 percent, or more than 30 percent?

Ms. Mitchell. Oh, there are less than 5 percent.

Mr. McCoLLUM. Less than 5 percent minority police officers or
blacks?

Ms. Mitchell. Yes.

Mr. McCoLLUM. That's minorities all together?

Ms. Mitchell. Yes, sir.

Mr. McCoLLUM. In the New York City area?

Ms. Mitchell. In the New York City area, yes.

Mr. McCoLLUM. Has there ever been an explanation offered by
the mayor or by city officials as to why?

Ms. Mitchell. Historically, they have not been able to find those
who qualify. That's the explanation.

Mr. McCoLLUM. That's the explanation.

Ms. Mitchell. But that is not an explanation that has been ac-
cepted by anybody, I might add, who is an authority on the ques-
tion.

Mr. McCoLLUM. Have you been privy to exploring the tests and
the other sources of the way they go about hiring to determine the
fairness of it?

Ms. Mitchell. I have seen some of them, but I have also heard
testimony on the part of the Afro-American Patrolmen's League,
the black organization of policemen in New York City, those in
Cleveland, those in Detroit, and when those tests were looked at,
they were able very quickly to be able to hire far more black police
officers.

Mr. McCoLLUM. So do you feel it's an administrative, decision-
making problem- somewhere along the way, without pointing the
finger at any particular individual that's causing the problem?

Ms. Mitchell. Not solely administrative, but a great deal admin-
istrative. I think it also has to do very often with the executive. It's
not just within the police department. I do not feel very often that
mayors are interested in what their police departments look like in
terms of its racial composition.

Mr. McCoLLUM. How do you propose we, besides holding hear-
ings such as we're doing here today, as Congressmen, can help alle-
viate that problem?

Ms. Mitchell. Well, I understand that those areas of LEAA
which were directly going toward trying to solve those problems,
are the areas that are not being refunded and, as a matter of fact,
LEAA is in jeopardy.

I think that the Federal Government has to take a look at the
police departments all over this country, as a matter of fact, cer-
tainly to see if discrimination is being faced by people who apply —
and this applies also to women — and also as to whether there is an
attitude of how police who are hired on to the force relate to the
communities that they have to serve and, indeed, whether there is
any amount of control that civilians have over police departments.
I believe the Federal Government should begin to set up commit-
tees that would look into that.

Mr. McCoLLUM. Do you feel we have more problems today of a
racial nature in the areas of criminal justice than we do in our
schools?

Ms. Mitchell. Oh, I certainly would not — only in one sense.
When a policeman's bullet shoots, it more often than not kills im-
mediately. What is happening to our children in our schools kills
them in the long range.

Mr. McCoLLUM. So there is no clear-cut distinction you would
draw

Ms. Mitchell. I think they're part and parcel of the same kind
of problem. It comes back to the economic questions that the previ-
ous witness testified to.

Mr. McCollum. It's all interrelated. You don't feel we have
made a major shift today so that the school area has improved to a
degree and the emphasis should be more in the criminal justice
area for our concerns

Ms. Mitchell. No. Let me

Mr. McCollum. It's still an equal problem?

Ms. Mitchell, Of course.

Let me just say that, while we talk about Harlem and that it's
the biggest black community in the country, there is no high school
in Harlem. So I would not say that that is any improvement in
terms of what existed before.

Mr. CoNYERS. Do you mean — excuse me. Would the gentleman
yield?

Mr. McCollum. Certainly.

Mr. CoNYERS. Are you saying that within the physical limits of
Harlem there is not a public high school?

Ms. Mitchell. Between 110th Street and 156th Street, between
Lexington Avenue and Broadway, there is not a high school.

Mr. CoNYERS. Where do the teenagers attend school?

Ms. Mitchell. Washington Heights, East Side, Martin Luther
King High, and other special schools throughout.

Mr. Conyers. I can presume, then, that this has been a continu-
ing sore point in relationships between the citizens of Harlem and
the city of New York?

Ms. Mitchell. In 1968 and 1969, policemen were chasing us
down the streets because we opposed the Harlem State office build-
ing being built, because we wanted a high school in the communi-
ty.

Mr. Conyers. I thank my colleague for yielding.

Mr. McCollum. You're quite welcome.

I'm as curious as you were about that. That's rather remarkable.
Is that a part of the busing program? Did that cause

Ms. Mitchell. No, it did not. That existed

Mr. McCollum. I was just wondering if we had any reverse dis-
crimination going on here.

Ms. Mitchell. No. It existed before and it exists now. These
young people have to get on the trains and buses and go to school
every morning, not because of busing, but because there is no
school for them to go to in their community.

Mr. McCollum. I really had no further questions. It was an in-
triguing conclusion.
I yield back my time.

Mr. Conyers. I want to thank Ms. Mitchell for her excellent tes-
timony. I would also like to express my appreciation to all of my
colleagues who have been extremely perceptive in this hearing.

[The prepared statement of Ms. Mitchell follows:]

Testimony of Charlene Mitchell, Executive Secretary, National Alliance
Against Racist and Political Repression

My name is Charlene Mitchell. I am the executive secretary of the National Alli-
ance Against Racist and Political Repression. I offer this testimony out of a deep
concern over the alarmingly inadequate response of the Federal Government's agen-
cies of law enforcement to the current crisis of racist violence and terror in the
United States.

The Ku Klux Klan and other white supremacist, paramilitary hate groups are
today engaged in openly avowed race warfare against the black people of our coun-
try. Their terrorist tactics include killing, shooting, kidnaping, arson, assault, and
other forms of harassment and intimidation. No longer limited to the South, epi-
sodes of Klan terrorism have occurred in almost every State of the Union. The Klan
is actively recruiting new members, particularly among young people, indoctrinat-
ing them with race hatred and training them in the use of arms.

The National Alliance Against Racist and Political Repression is well acquainted
with the extent of Klan violence and terrorism in our country today. In April 1980,
our Birmingham, Ala., branch held hearings which documented the frightening re-
surgence of the Klan. Dozens of community residents described widespread cross-
burnings, bombings, shootings, beatings, and harassment by the Klan as well as
active Klan organizing among students, law enforcement officials, and the military.
(See Exhibit A for excerpts of tesitmony.)

Further, in September 1980, I was personally one of several representatives of the
National Alliance Against Racist and Political Repression who were assaulted by
Klan thugs after we urged the San Diego County Democratic Party Central Commit-
tee to withdraw its nomination of Klan Dragon Tom Metzger for the 43d Congres-
sional District seat.

I refer this Committee to "The Turner Diaries" by Andrew MacDonald (illustrat-
ed by Dennis Nix), a recent book ironically published by a group calling itself the
National Alliance, though copyrighted in the name of William L. Pierce, Box 3535,
Washington, D.C. 20007 (1978). This frightening work, though couched in fiction, is
generally acknowledged to be a blueprint and manual for the Klan's race warfare.

Our new Secretary of State has announced a crusade against what he calls "ter-
rorism" in other lands. Putting aside the facts that, for General Haig, terrorism con-
sists of the armed struggles of popular masses to win liberation from brutal fascist
dictatorships and neo-colonial oppression and that the United States is itself an
adept practitioner of international terrorism, as evidenced by the cases of Mossa-
degh, Lumumba, Allende, Castro and others, I would simply ask: If we are to have a
crusade against terrorism, should it not begin at home with the Ku Klux Klan?

Yet the attitude of the present administration, like that of its predecessors,
toward racially motivated terrorism in this country can most charitably be de-
scribed as one of indifference. This indifference persists in the face of a growing
mass peoples' movement that unites whites with blacks and other nationally op-
pressed groups in a demand for action against the Klan. As a result of this demand,
bills to criminalize racially motivated violence and intimidation have been intro-
duced in a number of northern State legislatures, including New Jersey, Oregon,
California, and Washington. (See Exhibit B.)

But Klan terrorism is a nationwide phenomenon that demands a national re-
sponse by the Federal Government. To date, that response has been limited and to-
tally inadequate.

The failure to respond to Klan terrorism cannot be attributed to a lack of Federal
legislation on the subject. The U.S. Code contains a well stocked arsenal of weapons
against racist motivated violence and terrorism, beginning with the anti-Klan laws
and constitutional amendments passed after the Civil War (18 U.S.C. §§ 241, 242,
243, 245 and 42 U.S.C. §§ 1981-86). As you know, Mr. Chairman, I am not a lawyer
and I am sure that you are more familiar than I with the full array of Federal stat-
utes that are available. Let me only mention those dealing with civil disorders (18
U.S.C. § 231), riots (18 U.S.C. § 2101), voting rights (42 U.S.C. § 1971), fair housing (42
U.S.C. § 3631), and explosives and firearms control (18 U.S.C. §§ 842, 922). (See Ex-
hibit C.)

The failure to enforce the Federal laws prohibiting many of the activities engaged
in by the Ku Klux Klan only serves to increase that activity. It gives the Klan insu-
lation from prosecution and thus legitimizes the organization. This provides a cli-
mate conducive to the growth of racial violence and terror. This racist violence and

terror necessarily leads to a violation of the rights of citizens of color to live in a
community protected from criminal attacks upon their homes and persons.

Not only have law enforcement agencies failed to enforce the Federal laws, but
other governmental bodies (or organizations working at their behest) have failed to
address the issue of the Klan activity. Examples can be cited. The Heritage Founda-
tion, Inc.'s 3,000 page report calls for the revitalization of internal security commit-
tees. Not once, in its 3,000 pages, does it mention the KKK as a threat to the people
of the United States. Senator Jeremiah Denton, chair of the Senate Subcommittee
on Security and Terrorism, has neither held nor scheduled discussions on the Ku
Klux Klan.

There have been literally hundreds of reported acts of Klan-inspired terrorism
over the last 3 or 4 years which have violated one or more of these statutes. Yet, I
understand that, of these instances, no more than 50-100 have been the subjects of
investigation by the Federal Bureau of Investigation (FBI), the Civil Rights Division
of the Department of Justice (DOJ) or the Bureau of Alcohol, Tobacco and Firearms
of the Treasury (ATF). And pitifully few — scarcely a handful — have resulted in pros-
ecution. Similarly, despite injunctive authority under Federal civil statutes, the Fed-
eral authorities have essentially taken no preventive action in advance of racist acts
of terror. I, therefore, cannot share former Assistant Attorney General Days' com-
placency when he stated in testifying before this committee that:

"We have used these criminal statutes, I believe, judiciously but effectively."
(transcript p. 95) Indeed, such complacency in the face of such a record is doubtless
one of the reasons why the record of enforcement is so bad.

There are other reasons for this nonenforcement as well, and I urge this commit-
tee to make a thorough and complete investigation of why there has been such a
failure in this area. I would suggest a few lines of inquiry.

Apart from firearms control, Federal investigation of Klan activity is in the hands
of the FBI. We know from the past record that the FBI devoted much of its time,
efforts, and energies in the field of race relations to surveillance of and attempts to
defame Dr. Martin Luther King, Jr. and other civil rights advocates. We know, too,
that many of its special agents were racists with Klan sympathies and that many of
the informers whom it placed in the Klan were of the same stripe. These agents and
informants not only failed to take timely action to prevent terrorist acts but pro-
voked them as well. This has also been true of ATF informers.

To what extent do these attitudes and practices still persist? Are these attitudes
and practices responsible for less than zealous investigations in Klan-related cases
and the cause of the fact that investigations are generally closed due to the sup-
posed "inability" to identify the guilty, "refusal" of victims to "cooperate", or reluc-
tance of the agency to "expose informers"? In that connection, it might be well for
this committee's investigators to review the FBI's Klan files — files which the FBI
has asked the National Archives to destroy as having no further significance. They
may well reveal that the FBI's work in this area has been permeated with racism.

Another factor that bears responsibility for the dismal record of the DOJ Civil
Rights Division in prosecuting Klan terrorism may be found in its reluctance to
make use of grand juries as an investigative tool. In his testimony before this Com-
mittee, Mr. Days characterized grand juries as "extremely unwieldy tools" and "dif-
ficult things to control." (transcript pp. 137, 138). Because of these fears, which I
have never before heard a prosecutor express and which I am confident are entirely
unfounded, he testified that the Civil Rights Division does not convene a grand jury
unless and until the investigation has been completed and has established that "we
have a solid case that deserves to go forward." (p. 140). The only functions of the
grand jury, he says, are to enable the prosecutor to see "what the case looks like,"
and if it looks "solid" enough to get an indictment (ibid). In other words, the Civil
Rights Division uses a grand jury only to put on a dress rehearsal of an already
completed script. But if there are gaps in the script, the project is abandoned with-
out seeking the help of the grand jury to fill them in.

Now the National Alliance Against Racist and Political Repression has frequently
criticized abuses in the use of federal grand juries by the Criminal Division in ite
attempts to manufacture cases against peace advocates, draft resisters, opponents of
nuclear arms, and other left and progressive individuals and groups. We have also
opposed the use of federal immunity statutes in grand jury proceedings as unfairly
coercive measures which deny witnesses the full protection of the privilege against
self-incrimination.

But there is no doubt that the grand jury process, particularly when armed with
authority to grant immunity, is a powerful investigative weapon. It is routinely used
for that purpose by U.S. attorneys all over the country — except, it seems, in civil
rights cases. Why this sudden reluctance when it comes to prosecuting the Klan?

And in how many of the cases that were closed for lack of evidence of the identity of
the guilty would the missing proof have been forthcoming before a grand jury? I
submit, Mr. Chairman, that these are questions which should be answered before
your committee.

Finally, Mr. Chairman, it appears that the Civil Rights Division takes an ex-
tremely restricted view of the scope of § 241 of the Criminal Code — one of the anti-
Klan laws enacted after the Civil War. The section makes it a crime to conspire: "to
injure, oppress, threaten or intimidate any citizen in the free exercise or enjojrment
of any right or privilege secured to him by the Constitution or laws of the United
States ..."

When Mr. Days appeared before this committee, you, Mr. Chairman, engaged in a
colloquy with him on the question of whether a racially motivated conspiracy to
commit murder — by the fact of its racial motivation alone — violates this section. At
the conclusion of the colloquy, Mr. Days flatly stated that it does not. Speaking of
the unsolved murder of six black men in Buffalo, he said: "I am willing to accept
that they are racially motivated killings, but I am not willing to accept that they
thereby violate Federal law." (p. 156) According to Mr. Days, if a group of Klansmen
kill a black for no other reason than because they subscribed to the vile doctrine of
the Dred Scott case that blacks have no rights that the white man is bound to re-
spect, then the Klansmen do not violate §241 or any other Federal law.

Again, Mr. Chairman, I am not a lawyer. But as I read my history, such a killing
was precisely the sort of crime that the authors of §241 intended to punish. And if
the right of a person not to be deprived of his life solely because he is black is not a
right secured by the 13th and 14th amendments then those amendments have lost
all significance.

Why has the Civil Rights Division not prosecuted at least one case to test in the
courts the view of §241 which I have described and which I believe you share? Why
such timidity in asserting jurisdiction over cases that cry out for prosecution? Is it
not strange that, unlike all other governmental agencies which make every effort to
expand their jurisdiction to its outermost limits and beyond, the Civil Rights Divi-
sion remains hobbled by a narrow interpretation of its statutory authority which is
both self-imposed and unwarranted?

It may be that upon the completion of these hearings your Committee will con-
clude that additional legislation is required to deter and to punish the crimes which
the Klan is committing. In particular, I would urge the ratification of the United
Nations' Convention on the Prevention and Punishment of the Crime of Genocide,
the International Covenant on Civil and Political Rights, and the International Con-
vention on the Elimination of All Forms of Racial Discrimination, still pending
before the Senate Committee on Foreign Relations (See Exhibit D). But I am skepti-
cal of the efficacy of new legislation at least until we know the reasons and motiva-
tion for the failure to enforce statutes that are now on the books.

I have suggested what some of these reasons and motivations for nonenforcement
may be. Your committee will perform a distinct public service by thoroughly explor-
ing them — and others which may come to light — here as well as in future national
and regional hearings, by publicizing your findings and by calling those responsible
to account. This is one means of attacking the grave deficiencies in the enforcement
of Federal laws which should afford the black community some measure of protec-
tion from Klan terrorism.

As already outlined, the Klan continues to violate Federal law, most particularly
those statutes that were expressly written to combat the Ku Klux Klan. In addition
to the Federal Government's historic role in eliminating the badges and incidences
of slavery, the interstate nature of the Klan places its violent activities well within
Federal jurisdiction. Therefore, the Federal Government is under an obligation to
enforce these statutes with all available means. Despite our criticisms of the federal
grand jury system, if it is to be used, it should be used to the utmost against the
Klan.

The current guidelines on informants used by the FBI should not hamper that
body's investigation of the Klan. The Klan is precisely the kind of group that may
be infiltrated by the FBI as "engaged in activities which are likely to include the
use of force or violence in violation of Federal law." (See F.B.I. Manual of Investiga-
tions and Operating Guidelines.)

Finally, I would propose that an interdepartmental task force be set up which
would include the Civil Rights Division and Criminal Division of the Department of
Justice, the FBI, Bureau of Alcohol, Tobacco and Firearms of the Treasury, Naval
and Army Intelligence, as well as nongovernmental agencies and individuals to in-
vestigate and prosecute all violations of Federal law by the Ku Klux Klan and other
white supremacist para-military hate groups.

The role of Congress does not end with the mere passage of legislation. Congress
has an historic obligation to see that laws protecting people from racist terror are
enforced and implemented at every stage.

NATIONAL ALLIANCE AGAINST RACIST & POLITICAL REPRESSION

CO-CHAIRPERSONS

Rev Ben Chavis
Wilmington lOdelendent

Angela Davis

Connmunist Party, USA

Abe Feinglass

United Food £> Commercial

Workers Union

Rev David Garcia

St Mark s Church m-the Bowery

VICE-CHAIRPERSONS

Anne Braden

Southern Organizing Committee

tor Economic Social Justice

Judge Margaret Burnham
Boston Alliance Against Racist
G Political Repression

Attorney Lennox Hinds

TREASURER
Rev Ben Chavis

EXECUTIVE SECRETARY

Charlene Mitchell

27 UNION SQUARE WEST- RM 306 - NEW YORK CITY 10003 - (212) 243-8555

Mr CoNYERS. The subcommittee stands adjourned.
[Whereupon, at 12:25 p.m., the subcommittee was adjourned.]

RACIALLY MOTIVATED VIOLENCE

WEDNESDAY, JUNE 3, 1981

House of Representatives,
Subcommittee on Criminal Justice
OF the Committee on the Judiciary,

Washington, D.C.

The subcommittee met, pursuant to call, at 9:55 a.m., in room
2237, Rayburn House Office Building, Hon. John Conyers, Jr.
(chairman of the subcommittee) presiding.

Present: Representatives Conyers, Sensenbrenner, and McCol-
lum.

Also present: Thomas W. Hutchison, counsel; Oliver Quinn, as-
sistant counsel; and Ray Smietanka, associate counsel.

Mr. Conyers. The subcommittee will come to order.

The increase in racially motivated violence, both organized and
random, requires that the Congress continue its inquiry into that
problem.

Today's hearing will focus on the Federal criminal civil rights
laws and their enforcement in order to determine the adequacy of
legal protection from racially motivated violence afforded minority
group citizens.

We will hear testimony from a number of distinguished wit-
nesses with specific expertise in the area of the Federal criminal
civil rights law and constitutional law.

The center of these hearings is the recognition of the obligation
constitutionally mandated to provide physical protection to all of
the citizens in the United States.

Our first witness is the very distinguished vice chair of the U.S.
Commission on Civil Rights, Dr. Mary Frances Berry.

We are very pleased and honored to have you and your assist-
ants here.

Dr. Berry is a professor of history and law and a senior fellow at
the Institute for the Study of Educational Policy at Howard Uni-
versity. She has written extensively. I am struggling through one
of her books at the present time. [Laughter.]

If you will introduce those who are with you, we will incorporate
your testimony into the hearings without objection.

You may proceed in your own way.

(61)

11-647 0-83

TESTIMONY OF MARY FRANCES BERRY, VICE CHAIR, U.S. COM-
MISSION ON CIVIL RIGHTS, ACCOMPANIED BY CAROL A. BONO-
SARO, ASSISTANT STAFF DIRECTOR FOR CONGRESSIONAL AND
PUBLIC AFFAIRS, AND GAIL GEREBENICS, ASSISTANT GENER-
AL COUNSEL

Ms. Berry. Thank you, Mr. Chairman.

I welcome this opportunity to appear before you to discuss this
issue of Federal response to the increasing number and severity of
racially motivated acts of violence.

I am accompanied by Carol Bonosaro, our assistant staff director
for congressional and public affairs, and Gail Gerebenics, assistant
general counsel.

The resurgence of the Ku Klux Klan and the increase of domes-
tic terrorism by extremist groups, whether motivated by racial or 'I
religious prejudice, are matters of deep concern to the Civil Rights
Commission. We are disturbed about these acts when they occur.

We believe any individual organization that promotes fear,
hatred, and violence by one segment of American society against
another is a serious threat to the Nation as a whole.

I would like to do two things. First, tell you briefly what the;
Commission is doing about this problem and then talk about the
statutory basis for prosecution when these alleged acts of violence i
have taken place.

Since 1979 our 10 regional offices have been reporting more and
more incidents of racial violence and hate group activity around
the country. We have gotten reports that members of the Klan
have been arrested and convicted for such acts as cross burnings,
beatings, bombings, and murders.

More disturbingly in other cases they committed such acts and
have not been prosecuted or apprehended, which means they
remain free to act again. That is very disturbing.

Also our regional offices and our advisory committees have re-
ported intensified recruiting by the Klan even among high school
and college students. The Klan, the Nazis, and similar groups, ac-
cording to our reports, have successfully capitalized on the socioeco-
nomic anxieties of whites caused by the current economic problems
the country faces by blaming the problems on blacks and other mi- u
norities and the fact that they have been provided or are beginning,
to be provided with equal opportunity under the law. j

This problem exists and this success exists despite the fact thati
we know that the toll on minority groups from the economic prob-i
lems is much greater than on other groups because they are dispro-'
portionately represented among the poor.

The victims essentially are being blamed for the extent of the
problem.

The two most graphic eruptions of racial tension in recent years
involving violence have been the Miami riots following the acquit-
tal of police officers in the death of a black businessman and the
violent confrontation in Greensboro, N.C., where Klan and Nazi
gunmen shot five Communist party members to death.

I visited Miami during the rioting and spent time there in thej
riot area.

In addition, the Civil Rights Commission held hearings in Miami
to determine the causes of those riots. Our State advisory commit-
tee in North Carolina held an open meeting to discuss the shoot-
ings in Greensboro. Witnesses in the Miami hearings and witnesses
in North Carolina stressed the importance of local officials involv-
ing the minority community in decisionmaking and in the struc-
ture of government and stressed that this was important in order
to alleviate some of the conditions that led to the violence.

The Commission has repeatedly urged that there be more in-
volvement in decisionmaking on the part of minorities in the
larger community in order to alleviate tension so that violence
such £is the riots will not occur.

There is some good news about this hate group and violent activ-
ity that is occurring around the country.

Our regional offices tell us that in some States local governments
and private citizens are moving positively to try to reduce the inci-
dence of racial tension and violence. That is important because we
all know it is first of all a State responsibility to punish people who
commit such violations and to prevent such violent behavior from
taking place and the Federal Government steps in when States do
not discharge their responsibilities.

In West Virginia and Maryland the Governors have established
statewide task forces to consider this problem and the Governor of
Oregon has proposed legislation to make race related vandalism a
felony punishable by up to 5 years in prison.

The Maryland State Teachers Association has established a
system to monitor the Klan and the National Education Associ-
ation has held meetings as part of the national anti-Klan network.
There are many activities of this kind around the country, but the
problem remains that the Federal Government has not performed
adequately in responding to this problem.

We believe that there has not been a strong enough response
from the Federal Government and the Justice Department in par-
ticular.

The Commission will continue to monitor the problem. We have
had a summary done of violence prone hate groups which is cur-
rently being considered by our staff before being presented to the
Commission, and we will have some followup action on that and
around the country in some of the regions. We will have State ad-
visory committee hearings on the problem in those counties and
give leaders there an opportunity to talk about what they are
doing about the problem.

In addition, we wrote to President Carter on May 19, 1980,
asking him to take strong action on this issue and to issue an Ex-
ecutive order or memorandum designating someone in the cabi-
net — preferably the Attorney General — to move vigorously in this
regard.

We didn't get a positive response from him and in January 1981,
in our report to the President and Congress which we sent to Presi-
dent Carter and President-elect Reagan, we stressed the need for
the President, the Congress, and the Department of Justice to do
more on this issue of racial violence.

We said that it was of critical importance that the national lead-
ership speak out forcefully and that the Department of Justice

monitor the problem and react quickly to counter it. We haven't
gotten a response to that either.

Mr. Chairman, I will briefly comment on the adequacies of pros-
ecution under available law, title 18, sections 241, 242, and 245 of
the United States Code.

Section 241, which outlaws conspiracies to violate civil rights pro-
tected by the Constitution and the statute had a rather checkered
history before 1966 when the Supreme Court interpreted it so nar-
rowly that it was not available to protect rights in the way that the
Reconstruction Congress had meant. But since 1966, the Court de-
cided some cases involving the murder of some civil rights workers,
241 has been available for prosecution when in fact two or more
persons conspire to undermine Federal civil rights, and we think
that it can be used aggressively by the Justice Department in this
regard.

It has some problems. The Commission has pointed out before
what those problems are.

First of all, the person who is harmed must be a citizen. We
know today there are allegations that many people who are not
citizens who may be immigrants, refugees, are saying that they
have been harmed in this way. It probably would be better if the
statute were changed from "citizens" to "persons."

Also, having to prove a conspiracy, that two or more people were
involved, is a problem when the activities have been engaged in by
one person, but the statute is there.

It is available when there is a conspiracy and when the rights of
American citizens have been violated. There is no reason for the
Justice Department not to use it in that way in our opinion.

Under section 242 it is illegal for individuals under color of law
to engage in activities which violate civil rights. We think that that
statute can be used successfully.

Since the Price and Guest cases there is no reason not to use it
successfully.

The color of law issue has been cited by prosecutors as a prob-
lem.

We also will have to prove that specific intent to violate a civil
right took place and that that is a very technical, legal standard
and it is hard for juries to understand.

Juries don't know what we are talking about when we talk about
specific intent; perhaps that ought to be changed and that the pen-
alty, they say, under section 242 is not as strong as it should be;
that even if they get a conviction the maximum punishment in all
cases not involving death is $1,000 fine or imprisonment of 1 year
or both.

Now, we take the position that it would be nice to have these
changes in 242. It would be nice to increase the penalty in all
cases. We have said that. It would be nice to do something about
the specific intent standard, but the statute is there. It is available.
It can be used now and it ought to be used now. We believe that it
is better to have some punishment for a civil rights violation in-
volving assault, a murder, than to have no punishment at all,
which is what happens very often in these cases.

Finally, Mr. Chairman, even if prosecutors think there are prob-
lems with sections 241 and 242, section 245, which was enacted by

the Congress after the civil rights problems of the sixties, provides
ample and full opportunity for the Justice Department to go for-
ward with prosecutions.

It does not present any problems with individual activity or con-
spiratorial activity. It contains a long list of activities that are pro-
vided with Federal protection, so there is no doubt about what the
activities are that are protected.

And it, in fact, can be used against individuals who act alone,
who interfere with the protected rights of any person. We think
that section 245 ought to be used.

We would like our recommendations on these statutes to be im-
plemented, but even if they are not. Justice can move forward now
to use them.

I became aware of the negative effect on respect for law in the
black community by the kind of activities that we have been talk-
ing about when I was researching the Justice Department files on
the issues of Federal response to violence against and by blacks for
a book I published in 1971.

I don't know if that is the one you are struggling through, but
what struck me, Mr. Chairman, is that we undermine respect for
law in general if people know that there is a category of offenses
involving bodily harm that can be perpetrated and the perpetrators
are not prosecuted, not apprehended, and they go free.

I was struck with that over and over again. I was struck with all
of the complaints that were sent in by black folks to the Justice
Department saying people are being murdered or assaulted in our
community just because they are black. Can't you do something
about it? The local police are even involved. They are helping to do
it or they are covering it up.

They would receive a standard response from the Justice Depart-
ment. Murder is not a Federal crime. Go see your local police. Tell
them about it.

I am sure they will help you, even when the complaint said that
the police were involved in it.

I suppose after the Price and Guest cases the Justice Department
would not make that response any more because it is clear that if
there is a civil rights violation involved, there is statutory authori-
ty to proceed, but I wonder if the complaints that people send out
to the Department receive the response that prosecutions are diffi-
cult, the standard of proof is difficult, the Justice Department is
understaffed, we have other priorities; but the statutory basis for
enforcement is present and again let me stress that the Justice De-
partment should have no higher priority than stopping the murder
and assault of people for no reason other than their race.

Whatever their staffing problems are, I think that since you can
have no other civil rights protected, if you cannot be free of murder
or assault, that this ought to be an area in which they should move
vigorously.

I will be pleased to answer any questions you might have, Mr.
Chairman.

Mr. CoNYERS. Thank you very much. I have my colleague from
Wisconsin with me today. He has, I know, at least two other meet-
ings to attend this morning. If he has any questions or comments,
he might be free to utilize this time.

Mr. Sensenbrenner. I have no questions, Mr. Chairman.

I would Hke to commend the witness for an excellent, concise
statement.

As we all know, the legislative branch of Government only
makes the laws. We don't enforce them. It is up to the individual
branches of Government to enforce the laws.

I think that you have hit the nail on the head. In many cases
laws on the books are not being adequately utilized to protect mi- j
norities in exercising their civil rights.

I certainly think that there has got to be more vigilant enforce-
ment by the U.S. Justice Department when, either by omission or
commission, some of these atrocities fall through the cracks in the
local law enforcement.

Ms. Berry. Thank you.

Mr. CoNYERS. Thank you.

I, too, want to join in thanking the witness for a very concise
presentation and very thorough submitted remarks.

On page 9, Dr. Berry, you stated the following:

The case law demonstrates that section 241 has been viewed as protecting those
rights flowing from the Federal powers. Guest and Price make it clear the statute
encompasses those rights guaranteed under the 14th amendment. It should be
noted, however, that both cases sufficiently alleged conspiracies between private in-
dividuals and State officials.

Whether section 241 reaches purely private conspiracies, absent State action, to '
deprive an individual of 14th amendment rights, has not yet been settled by the j
case law.

Would you elaborate?

Ms. Berry. All that means is that there have not been any cases
in which the Supreme Court has definitively stated whether or not
241 reaches a conspiracy in which only private parties are in-
volved, and there is no allegation that there is any color of law or j
any State action or any public officials in any way involved.

That is only because in the Price and Guest cases, where a deci-
sion was fully considered, there was some involvement by some|
public officials.

That was the kind of case that the court had before it.

I had written a little note for myself which I did not say in my
oral presentation, that if more cases were brought by the Justice
Department, we would get an answer to the question.

If they would aggressively use the statute, bring it there, I am;
sure that the court would be happy to answer the question.

In my opinion the answer to the question would be that you'
would not need any kind of involvement on the part of State offi- ]
cials because the statute does not require that, but it is just that
there has not been that kind of case.

One of the things that happens, Mr. Chairman, is, when you do i
not have cases brought, you do not get clarification in the law.

Mr. Conyers. Could I invite any one of your assistants to make ,
any additional comments? |

Ms. Gerebenics. I have no comment. ;

Ms. Berry. She agrees with me. [Laughter.] i

Mr. Conyers. Well, that is the problem we always have when a
witness brings assistants.

Would you like to make an additional comment?

Ms. BoNOSARO. I think the only thing that might be useful to
point out is that the Commission has released a statement, "Police
Practices and Preservation of Civil Rights," and that we will pre-
sumably in July of this year be releasing a report entitled "Who is
Guarding the Guardians?" which will address the general question
of police authority and operations.

I think it is important for the committee and others to under-
stand that the Commission has been active and has studied the
issues and, as usual, has a basis for its recommendations.

Mr. CoNYERS. We will be looking forward to examining the
report.

Ms. Berry. I think, Mr. Chairman, since my colleague mentioned
the police practices study, and we keep talking about police, we
ought to point out that the police issue is a two-edged sword.

On the one hand, we say that the police at the State level ought
to protect people from being murdered and assaulted while they
are trying to exercise their civil rights and that clearly is a police
responsibility.

On the other hand, in many of the cases of brutality and violence
that have occurred over the years, there has been complicity by the
police, either actions, illegal violence, use of deadly force, for exam-
ple, by police officers themselves which is particularly egregious
when one is trjdng to protect civil rights and have law enforcement
officials involved in it, or in cases like Price and Guest, where
police or public officials are in fact involved somewhere tangential-
ly in the activities.

That has happened over the years. It is a two-edged kind of prop-
osition.

Mr. CoNYERS. Are there any indications in the literature of the
law as to what the answer to this as yet unsettled problem is con-
cerning whether or not private conspiracies could be punished
under 241?

Ms. Berry. Well, I would think just based on a reading of the
cases that have been decided that if the court had a case like that,
that the court would decide 241 did cover that particular instance.
I don't have any doubt about it in my own mind. It is just that the
court can only decide the cases that are brought before it.

Mr. CoNYERS. Are there — have there been law review articles
written, or lawyers, judges, or civil rights organizations that have
speculated on this question?

Ms. Berry. Oh, yes; there is a whole body of literature which I
could cite to you for the record, but I could not cite off the top of
my head; such persons as Professor Kinoy and others who have
written about this subject who indicate that that is their view. I
share that view.

Mr. CoNYERS. Do any of your assistants remember anything from
this body of literature that could help us? You can submit any
other citations or references that you would like. They will be in-
cluded in the record.

Ms. Berry. We will do that, Mr. Chairman.

Mr. CoNYERS. On page 11 of your statement there is an excellent
discussion of federally protected rights.

The Supreme Court held that the statutory term "willfully" required a showing of
specific intent to deprive the victim of federally protected rights. In addition the

right to be protected could be made definite by judicial interpretation or "other rule
of law," thereby providing adequate notice as to what actions are proscribed by sec-
tion 242. The Court also noted that proof of specific intent does not require a show-
ing that the defendant knew that the right was in fact protected.

Would all of you elaborate on that section, please?
Ms. Berry. Well, there have been a number of proposals that
this problem of specific intent be dealt with and the statute cleared

up.

One of them, I think, was a proposal that you made, Mr. Chair-
man. Because the argument is that according to Screws, trying to
show willfulness, trying to show that the violent behavior took
place in connection with some federally protected right is very dif-
ficult to prove and very hard for juries to understand.

Even though specific intent does not require that person who was
taking the violent action knew that the right he was trying to in-
terfere with was a right that was so protected. It had to be a right
that was federally protected.

That is all very fuzzy, muddled, and hard for juries to under-
stand.

There have been proposals that section 242 be changed. The
Commission has recommended that the specific intent requirement
be removed.

One proposal is to include language like this:

A person is guilty of an offense if acting under color of law he engages in any
conduct constituting an offense under any section of the Federal criminal code, and
that that would specify what the person had done and make it easier to explain.

The other proposal would require proof of recklessness.

The other one is to remedy the statute by saying specifically
what the offenses are which, if committed under color of law, con-
stitute a violation.

That is stating explicitly, assault, murder, burglary, unlawful re-
straint and the like.

Therefore, you would not need any other proof of intent. I would
maintain those would be good changes if we could get them.

I would also maintain, Mr. Chairman, that since section 245,
which is later in time and which is broader, does not have these
kinds of constraints, there is no reason why a prosecutor couldn't
proceed by using 245; and if there are any activities that somehow
are without the ambit of 245, then somebody could add those.

But 245, as you know, has a long list of activities. It would seem
to me that any prosecutor with imagination ought to be able to
figure out how to go forward. There are these changes that have
been suggested to remedy 242.

Anything else, counsel?

Mr. CoNYERS. Any further comments on that question?

With reference to the very important comment that you made on
page 15, that local police response frequently is that murder is not
a Federal crime — I am sorry, the Federal response that murder is
not a Federal crime, is that true?

Ms. Berry. Well, murder is not a Federal crime. Murder stand-
ing alone is not a Federal crime, and crimes, as we know, generally
are under the jurisdiction of State governments. State police. State
prosecution.

The intent of that section is to indicate that unimaginative—
which is probably the kindest word I guess I can use— prosecutors
over the years in the Justice Department would not see the civil
rights violation that was involved. For example, people being
beaten and run away from a place where they were working so
their employer wouldn't have to pay them, which is a violation of
their contractual rights under section 1983 which is a Federal stat-
ute, or people being beaten in order to keep them from having due
process by having a trial, to see whether they in fact are guilty of
something, that prosecutors seem not to be able to see the civil
rights violation.

They would simply characterize the action as just a murder, like
any other murder, so why are you writing to us; we know murder
is not a Federal crime.

Then they would cite cases like Cruikshank and Hodges against
the United States.

It was a standard form letter they sent back to these people. I
actually saw the complaints and letters. No matter what they said,
whether they said the police killed us, somebody down the street
killed us and we are trying to exercise a civil right, they would say
it is murder, go see your local police. We have nothing to do with

it.

That proceeds from a commendable notion that in this country
we do not want a national police force or the National Government
to take on all the responsibility for law enforcement; that that
would be in violation of the Constitution.

I support that position, but I can also see where there are specif-
ic instances, where constitutional provisions, like the 14th amend-
ment, the 13th amendment, the 15th amendment, are there and on
the books and that the remedy for them when there are violations
according to these statutes is to have the Federal Government in-
tervene to punish the civil rights violation which is connected to
the murder, that in fact a prosecution should go forward on that
issue.

Yes, murder is not a Federal crime, but that is not the end of the
issue.

Mr. CoNYERS. All right. What happens then when a person, a
citizen is, in fact, murdered in violation of their civil rights? Feder-
al rights?

I Ms. Berry. If they are murdered, we would hope in the first in-
stance there would be a State investigation and a State prosecution
for the murder itself.

In the absence of— which is the best possible route, since the
punishments are so much greater and since, in fact, the loss of life
can be— one can be punished for it and it also does not require the
Federal Government to intervene, but in cases where the State
either refuses to prosecute, does not prosecute, or is in complicity
with the murder itself, then indeed — and there is a civil rights in-
volvement — then in fact one would expect the Federal Government
to at last punish those who perpetrated the act for the civil rights
violation.

So we are not saying punish a civil rights violation instead of
punish for the murder. We are saying punish for it if it exists in
the absence of other kinds of punishment.

Do you want to say something?

Ms. Gerebenics. I would add the third category there, what hap-
pened in Houston with the Jose Torres case where the State did
prosecute and the sentences were very, very Ught, suspended at the
State level and the Federal Government reviewed the State case
and went ahead with a prosecution based on the drowning death of
Mr. Torres by Houston police.

Mr. CoNYERS. Then a federally violated right can be federally
prosecuted?

Ms. Berry. Absolutely.

Mr. CoNYERS. Including murder?

Ms. Berry. Absolutely.

Mr. CoNYERS. Under what provision would that occur?

Ms. Berry. 241, 242; if it is a conspiracy, then it could be pros-
ecuted under 241.

If it is individual action, it could be prosecuted under 242. If it
involves a whole range of protected activities that are listed specifi-
cally in the statute, it could be prosecuted also under 245.

So there is a clear Federal statutory base to go forward with
prosecution in these instances.

Mr. CoNYERS. Do you or your office keep track of the actions
brought under these civil rights statutes?

Ms. Gerebenics. During the course of our police investigation
and our police study, we did keep track for a period of time of cases
brought in Houston and Philadelphia solely, but on a national level
what we get from the Department of Justice are gross figures,
10,000 complaints a year; x number of prosecutions. We have just
the total figures.

Mr. CoNYERS. Do they have the figures?

Ms. Berry. They have the figures on the number of complaints
that they get 1 year and the number of prosecutions that they go
forward with. They do have those.

The Justice Department has that.

Ms. Gerebenics. That includes prosecutions brought by U.S. at-
torneys in the local jurisdictions.

Ms. Berry. They can tell you how many complaints they have
gotten each year, how many prosecutions their attorneys have gone
forward with in a given year, and the number, as I recall, is a very,
very small number of prosecutions for an incredible number of
complaints. That has been true over the years.

Mr. CoNYERS. That would seem like a subject matter that might
warrant the attention of the Commission. You might want to know
how many there are, and also to know what the disposition was. \
That could be very important in determining what the circum-
stances are in terms of enforcement of the law.

Hopefully we will be able to get it also.

Ms. Berry. We will get it, Mr. Chairman. If you can't get it, we ,
will give it to you. How is that?

Mr. CoNYERS. Well, if you haven't got it and don't get it to us,
then we will get it.

Ms. Berry. All right, Mr. Chairman.

Mr. Conyers. Let me recognize now my colleague from Florida,
Mr. McCoUum.

Mr. McCoLLUM. Thank you, Mr. Chairman. I am glad to be with

you.

I would like to inquire a little further about the criminal aspects
of the prosecution in civil rights areas. I am familiar somewhat
with the civil aspects of section 1983 from the private practice of
law— 1983 is purely civil, it is not criminal?

Ms. Berry. Right.

Mr. McCoLLUM. Is there anything covered by that that allows
civil action?

I realize we are talking about the negligence field as opposed to
criminal intent. Is there any activity which, if done in a criminal
manner under normal thought processes, with the type of neces-
sary intent up there in the mind, that exists under section 1983
that is not or would not be covered by the interpretations of courts
or your interpretation under section 242?

Ms. Berry. The question is, could a civil action go forward in
some of these cases?

Mr. McCoLLUM. No. What I am asking is, are there areas we can
|have a civil action in 1983 where you couldn't have a criminal pros-
ecution that conceivably on the State level might be a crime, but
up here under section 242 is not a crime and there is no other way
of making it a Federal crime?

I don't know if I am making my point clear at all.

1983 is a civil statute. Under color of law a police officer can go
out and do a lot of things to people, assault them, beat them up,
shoot them.

I had a case myself where somebody was shot to death by a
police officer in his home. It was a civil suit that came out under
1983. What I am really asking is, the willful language of 242 looks
pretty broad. I am wondering if it covers all the possibilities of
criminal conduct that might be encompassed civilly in the civil
courts for tort action under section 1983 or are there loopholes in
there?

Ms. Berry. Now I understand. Congressman.
; The standard of proof for 241, 242 is greater, of course, than the
standard of proof in the civil action. There, in fact, have been cases
where people have proceeded under 1983, the damage remedy
against, for example, police officers, as you know, who perpetrate
such acts where there was no proceeding under 241 or 242 because
the prosecutor felt that he could not amass enough evidence to go
forward to prove.

He couldn't meet the standard, so there is a possibility of action
under a civil damage remedy in these cases.

I Mr. McCoLLUM. You feel the standard of proof and the coverage

rof 242 is sufficiently broad and tight enough to cover all of the

criminal intent elements that you would personally like to see

prosecuted that might arise out of situations that are covered in a

civil way by section 1983?

Ms. Berry. I think if you take 241, 242, and 245 together, all

three, that one would have a sufficient basis for going forward in

those kinds of cases.

' Mr. McCoLLUM. That was my main concern. I know in the case I

jwas dealing with there was a question of whether or not the local

grand jury, in fact, had just been charged by the prosecutor the
way they wanted; a lot of coverup questions. , . ,

There was no answer to it because you couldn t go into the grand
jury. A lot of the people thought that had happened. You are
saying if in fact the Federal agencies concerned had investigated,
they could have satisfied themselves if there was a problem and
gone under 242 if that had been the case.

Ms. Berry. I think so. Under 241, 242, or 245.
Mr. McCoLLUM. One of the three?
]VIs Berry. Yes.

Mr. McCoLLUM. The reason I asked about 242 was, it was an in-
dividual matter. I was curious.
I don't have any more questions. That particularly concerned me.
Mr. CoNYERS. I am glad you raised the question.
Mr. McCoLLUM. I yield back my time, Mr. Chairman.
Mr. CoNYERS. Let's talk about the 13th amendment for a while.
Just generally how— what were the circumstances out of which na-
tionally that constitutional amendment was created?

Ms. Berry. The 13th amendment was introduced, passed, and
ratified in order to see to it that slavery and involuntary servitude
were legally at an end and to give the Congress the power, in sec-
tion 2 of it, to enforce the amendment by appropriate legislation, to
see to it that slavery and involuntary servitude, however defined,
no longer existed.

The issue then became, what is slavery and involuntary servi-
tude? What is appurtenant to it? What kinds of things constitute
this, and how far does the legislation of Congress go, and Congress
then, of course, enacted statutes to enforce the 13th amendment.
Mr. CoNYERS. What were the circumstances that caused the
amendment to be created in the first place?

Ms. Berry. The 13th amendment? The circumstances were the
fact that slavery existed or war took place in which some slaves
were emancipated by proclamation during the war. The war came
to an end with the Union victory.

There was an issue about what was going to happen to black
folks then legally and what about those who had been emancipated
during the war, and it was intended to settle for all time that one
result of the war was that slavery would no longer exist and to
make it part of organic and fundamental law in the country.

Mr. Conyers. Did it not come about as a result of the violence to
which the emancipated slaves were subjected?

Ms. Berry. The statutes that were passed based on the 13th
amendment were passed because of the kinds of legal requirements
as well as the violence that was made by those people in the South-
ern States once the war was over, interfering with the rights of the
blacks who were there, and Congress was responding to this prob-
lem.

Mr. Conyers. So there was intransigence on the part of State
governments, and there was violence being visited upon the ex-
slaves?

Ms. Berry. Right.

Mr. Conyers. And was not that violence brought about to pre-
serve the inferior status that had originally been the lot of those
who were slaves?

Ms. Berry. That is right. I guess I would characterize it as trying
to defeat the practical situation which was that the North won the
war and the legal situation which was that blacks were freed and
to perpetuate the status quo, despite that.

Mr. CoNYERS. So the 13th amendment was aimed not only at
legal and political discrimination, but also against violence; is that
fair?

Ms. Berry. Right. Yes. That is right.

Mr. CoNYERS. Am I amplifying this?

Ms. Berry. The kind of violence that was taking place in order to
perpetuate the preexisting conditions. That is right. ^

Mr. CoNYERS. That would include murder; wouldn't it?

Ms. Berry. Yes, indeed. Absolutely.

Mr. CoNYERS. So we have a constitutional amendment that pro-
tects citizens against discrimination that is either legally, political-
ly or physically directed at them?

Ms. Berry. That is right. In the 14th amendment and in the stat-
utes, to protect the newly freed slaves from that kind of violence
which would interfere with their ability to enjoy freedom as op-
posed to slavery.

Mr. Conyers. So then could we or could we not view the sections
of the Federal law that we have been talking about as enabling
statutes to a constitutional amendment?

Ms. Berry. That is precisely accurate, Mr. Chairman. The idea
was to address the problem, to make sure that the 13th and 14th
amendments were implemented and that the newly freed slaves
had their rights and to sweep away the obstructions to the enjoy-
ment of these rights that were exercised by groups like the Klan
and individuals in a very violent way.

So they were enabling statutes.

Mr. Conyers. If you can, please explain how the court fashioned
the case law such that we now are in the situation of having to
create some more Federal law to get the intended effect of the 13th
amendment rolling after 100-and-some-odd years.

Ms. Berry. When you ask how the court did it, Mr. Chairman,
the court did it by simply reading the statute with the idea in mind
that it should be read narrowly; for example, saying that federally
protected rights cannot include any rights that people had before
slavery was abolished in the States.

For example, people in the States had a right to make con-
tracts — people generally, although not slaves — before the 13th and
14th amendments were adopted, so that you could have the court
saying that even these statutes are supposed to protect federally
protected rights, that must not be a federally protected right be-
cause it existed before, therefore the States must protect that, so
we will read out every issue that comes before us and say that you
really do need to go back to the States and to really fly in the face
of — a favorite lawyer expression — the plain meaning of the words.
That is exactly what the court did, but the court did it for
historically — we historians generally agree that the court did it in
part because it could not believe that the Congress really did want
to change things all that much, that Congress really must have
meant only to change as much as was absolutely necessary; that is
to abolish slavery, and beyond that they really did mean to leave

most things to the States and it must have been by indirection that
these statutes were passed with all this language the lawyers were
trying to read broadly.

So you had that happen. You had, by the way, a Congress which
when the court did it, did not come out aggressively and say back
to the court, "Look, we meant exactly what we said because of the
climate of opinion that existed then."

It took time and effort until you finally had a court saying look,
we meant— those Congressmen meant exactly what they said in
those statutes. We are going to interpret them the way they said it
should be interpreted, but that took time.

Mr. CoNYERS. So where are we now with the 13th amendment
and these three specific Federal laws?

Ms. Berry. Where we are now is that the courts — the Supreme
Court has interpreted them in such a way that the Federal Govern-
ment can go forward with prosecutions when violent behavior in-
terfering with civil rights has taken place, murder or assault.

It can do it, if it is a conspiracy, without any problem under 241;
if it is individual action, it can do it under 242; if there is some
specific intent problem that the Justice Department perceives and
it is one of those activities listed in 245 which does not have that
difficulty, they can use 245.

There is a whole arsenal of weapons that are available for use by
the Federal Government and that have been sanctioned by the
courts that could be used.

I suppose you would have to ask the Justice Department why
they are not using them. I don't understand it.

Mr. CoNYERS. It seems to me that the courts have somehow whit-
tled back the original intention of the Constitution and the en-
abling statutes that were created subsequently.

Ms. Berry. The courts did do that. They did it for years and
years and years and years, and finally there was some relief in
1966 in the Price and Guest cases and then some relief when Con-
gress passed 245.

What I am saying is that even though the whittling away took
place, the current situation is that the law on these issues is viable
there; what we need are cases brought under those laws again.

Mr. Conyers. Do you and your commission have the authority or
obligation to meet with the Department of Justice, with the Civil
Rights Division, even the Community Relations Service, to deter-
mine the style and the rules and the terms under which they inves-
tigate and proceed in those matters?

Ms. Berry. We have the authority to make recommendations to
them. We have the authority to hold hearings at which we can sub-
pena them.

We have the authority to — and we have made these recommen-
dations to them and to encourage them to go forward. We did have
a hearing in which we had the Assistant Attorney General for Civil
Rights and the FBI and various others come before us last fall to
tell us about their enforcement under these statutes.

Many of the answers that they gave are the ones that we have
been discussing here about staffing problems, let the States do it.
It is hard to prove the cases, and like that.

But they do not deny or they did not in those hearings, that the
legal basis for going forward since the 1966 cases I cited and since
245 is there.

They just — one argument they gave was if we bring cases and
lose them, it will create more disrespect for the law so it is better
not to bring any cases because we don't want to lose them.

Well, my answer to that is if someone's rights are being violated,
it is better to go forward with a case, at least to attempt to vindi-
cate their rights, than to simply say well, it is better if we don't
because we might lose the case. You don't know whether you are
going to lose or not, absolutely. I think you can win.

Mr. CoNYERS. That sounds like some incredible testimony. I
would like to read that.

Ms. Gerebenics. We can provide you with a copy of that. We had
Mr. Pampa from the Community Relations Service, Mr. Days, and
the Deputy Director of the FBI, Mr. Webster's deputy.

Mr. CoNYERS. So racially motivated violence has been a historical
problem in this country. Maybe it was aggravated in some respects
by the passage of the 13th amendment, and therefore some of those
sections were created as early as that point in our history, in an
attempt to remedy this violent environment that we were in.

Ms. Berry. Well, there are many things that are reminiscent
today of the events that took place in the 1970's which led — sixties
and seventies — to the 13th amendment, the 14th amendment, and
these statutes that are on the books.

Congress at the time held hearings and took testimony from nu-
merous witnesses who talked about interference with their rights
by the Klan and by individuals, and these statutes were passed to
try to outlaw that activity and to see to it that if the States did not
act, the Federal Government would step in; and that problem today
exists again and what we need to do is when States don't act, or if
they act not successfully, we need to use the statutes again.

They are there, they are available, and we ought to use them.

Mr. CoNYERS. Mr. McCollum?

Mr. McCollum. Thank you. I have one foUowup question. I have
read now as best I can, as quickly as I can, not having prepared it
before, sections 241, 242, and 245. I know we are here today on a
hearing discussing the question of violence against minorities,
racial overtones to those problems of civil rights.

One thing that strikes me — and I would want to pursue the ques-
tion of 1983 with you and these statutes and criminal sanctions a
little bit more.

Under 1983, if a person is shot or otherwise injured by a person
under color of law normally considered a police officer of the State,
whether it is the State, the United States, or whatever, then that
person is determined to be deprived of a civil right; namely, the
ability to continue to pursue normal activities. He has been de-
prived of a constitutional right and a civil right. Regardless of race,
alien, religion, or anj^thing else.

It occurs to me that 241 looks broader for conspiracy but 242 and
245 are certainly very specific. Section 242 which is the broader of
the remaining ones, where you talk about an individual taking an
action and there is no conspiracy, 242 really only addresses the
problems of violence and civil rights deprivations that could be

done by police officers against minorities or against an alien or
somebody because of his race, color, or religion.

That is what I am reading into that. That does not actually en-
compass, if I am interpreting it correctly, the deprivation of a
person who is not a minority or doesn't fall into one of the catego-
ries given there.

So let's say a Caucasian is shot out on the street somewhere by a
police officer, willfully, intentionally, wrongfully, whatever, per-
haps a civil tort action could be brought against the police officer
under 1983. In fact, I know it could.

Perhaps a local State law has been violated and murder can be
brought as a charge or, if not death, some other crime. There
would not be a criminal civil rights violation since that person
wouldn't be a minority or wouldn't fall into the category of what I
think is all that is written into 242.

I am wondering if my interpretation is correct and whether or
not even if you don't know it today if you would be willing to
submit that back to us because I think even though the hearing is
on racial violence and minorities, Mr. Chairman, would you object
to our getting the answer to that?

I think that is an area. Civil rights is broader than race, and I
think it is very important that we be able to pursue the adequate
Federal protection of everyone's civil rights.

Ms. Berry. We will provide you a more complete answer for the
record, but I think that 242— that you are right about the scope of
242 and that when it was drafted, it probably was drafted with par-
ticular problems in mind which existed at the time, but I point out
under 245, the first section of it, there is no provision — it says noth-
ing about the race or color of any particular person. Of course, that
is a later statute. We will subject it to a closer analysis, but it may
be that under 245 you could go forward in cases like that.

Mr. McCoLLUM. I grant you may. I would appreciate your doing
it. I have not done it obviously. I just scanned it.

I felt I had not properly visited that with you because I had not
adequately read that statutory language.

Now I am a little more concerned, although I am not about the
questions of minorities rights. I think they are protected under
this.

I am very pleased that you have been able to point that out to us
this morning.

I would like to close that other loophole.

Thank you very much.

Thank you, Mr. Chairman.

Mr. CoNYERS. Counsel Hutchison.

Mr. Hutchison. For Mr. McCollum's benefit, the courts have in-
terpreted section 242 as setting forth two separate offenses. That is
not clear, however, from the way section 242 is grammatically con-
structed. The first offense is, under color of law, subjecting some-
one "to the deprivation of any rights, privileges, or immunities se-
cured or protected by the Constitution or laws of the United
States." It is not necessary that this offense be committed on ac-
count of the victim's race or color. The second offense is subjecting
someone under color of law to different punishment on account of
the victim's race or color.

For the first offense, deprivation of any rights, there need be no
racial motivation, and the Justice Department has brought and
routinely brings in these actions in situations where the victim is
black and the defendant is black or the victim is white and the de-
fendant is white. So, for the first offense there is no racial aspect
necessary. It depends upon the right involved; it all turns on what
that right is.

Mr. McCoLLUM. You are saying my example of somebody being
shot who is a member of the majority, the Caucasians or something
other than race is involved could, in fact, be prosecuted under Fed-
eral law?

Mr. Hutchison. Yes. The theory is that the officer, the person
acting under color of law, has subjected the victim, whatever the
victim's race, to summary punishment, that is, punishment without
a trial in a court of law with all the due process safeguards.

Mr. McCoLLUM. Basically that is the same as the civil version in
1983?

Mr. Hutchison. Yes, I would think so.

Mr. McCoLLUM. That was my question. I appreciate your inter-
preting that.

Mr. CoNYERS. Finally, is it fair to say or is it your view that we
are in a climate of increasing racially motivated violence?

Ms. Berry. It is my view based on the numbers of incidents
which have accelerated over the last 3, 4 years, that have been re-
ported to us by the regional offices, not only what we read in the
paper but what the offices report, what the State advisory commit-
tees report, there has been a clear upsurge in such activities and at
first there were many people who thought if you didn't talk about
it, the activities would go away, that the best posture was to pre-
tend they hadn't occurred.

Well, even though no one talked very much about it, they still
continued to occur and accelerated. I think there needs to be more
talking about it and more action.

Mr. CoNYERS. Is the Voter Rights Act part of your concerns?

Ms. Berry. Yes, it is.

Mr. CoNYERS. Have you held hearings on it or is there some body
of examination, works, that you have performed?

Ms. Berry. Right. We had a large monitoring project on how the
Voting Rights Act was being implemented which resulted in a
study, a voluminous study that the Commission considered at our
last meeting last month and approved, and which will be submitted
to the Congress and there will be testimony on it in the judiciary
subcommittee that is considering the Voting Rights Act.

The Commission generally — yes, we are concerned with it. We
are concerned that legal remedies be available as in the Voting
Rights Act to protect the right to vote.

We are particularly concerned because we noted in the report
that harassment and intimidation, physical harassment and intimi-
dation of people who were trying to exercise the right to register or
the right to vote still exists today.

There are many people who think that the only violations that
exist now are some kind of subtle variation on at-large voting as
opposed to single member districts and that kind of thing, which is
a major problem.

11-647 0-83

But, in addition to that, actual physical harassment and intimi-
dation was found in a number of instances which are detailed in
the report.

Mr. CoNYERS. That is a very timely document.

Let me ask you this: In your experience, have there been in-
stances of Klan or hate group violence being directed at blacks be-
cause of their attempt to utilize the franchise or participate in the
political process?

Ms. Berry. That has been a historical problem we know. I was
checking to see if there were any instances where the Klan was
particularly identified.

Mr. CoNYERS. Please make note of any other organizations that
would be trying to eliminate or limit the rights of all people, par-
ticularly blacks and most normally in the South, but not exclusive-
ly any more, in the exercise of their very important right to par-
ticipate in politics.

Anyway, follow that very carefully.

Do you intend or does someone from the Commission intend to
testify before the appropriate subcommittee?

Ms. Berry. Yes, indeed. For the subcommittee. The report will be
made available.

Mr. Conyers. Very good. I want to thank you. You have been
very patient with me. Your testimony and comments have been ex-
cellent.

Ms. Berry. Thank you, Mr. Chairman.

[The prepared statement of Ms. Berry follows:]

TESTIMONY OF MmRY FkANCtb bERkY, VICE CHAIR
UNITED STATES COMMISSION ON CIVIL KiGhTS

6EF0RE THE HOUSE JUDICIARY SUBCOMMITTEE ON

CRIMINAL JUSTICE

2137 RayDurn l-ouse Office Bidg.

Wasnington, D. C. 2051^;

June 3, 1981

9:30 A.M.

Accompanied oy:

Carol A. bonosaro, Assistant

Staff Director for Congressional

& Public Affairs

Gail Gerebenics, Assistant
General Counsel

TESTIMONY OF MARY FRANCES BERRY, VICE CHAIR

UNITED STATES COMMISSION ON CIVIL RIGHTS

bEFORE THE HOUSE JUDICIARY SUBCOMMITTEE ON

CRIMINAL JUSTICE

June 3, 1981

Mr. Cnairman, and memoers of tne Committee, I welcome the opportunity
to appear oefore you to Discuss tne increasing numoer ana severity of
racially motivatea acts of violence, with me tooay are Carol A.
Bonosaro, Assistant Staff Director for Congressional 6. Puolic Affairs ana
Gail Gereoenics, Assistant General Counsel.

The resurgence of tne Ku Klux Klan ana the increase of domestic
terrorism oy extremist groups, whether motivated by racial or religious
prejuoice, are matters of deep concern to tne Civil Rights Commission.
Equally aisturoing are the numper of racially motivated violent acts that
reportedly are committed oy individuals not affiliated with any hate
group, wiy indiviaual or organization tnat promotes fear, natrea, and
violence oy one segment of American society against another is a serious
threat to this Nation as a whole.

Tooay I will aiscuss tne aaeauacy of Feoeral law ana law enforcement
to protect citizens from acts of racial ana religious violence, whether
oy inaiviouals or groups, defore I oo, I woula Hks to aescrioe briefly
tne programs of the Civil Rights Commission in this area and the major
issues tnat nave oeen identifieo.

Since 1979, when tne Commission's ten regional offices started
provioing monthly reports on this problem, every office nas cited
increases in nate group activity and racially motivatea violence.

Memoers of cne various brancnes of the Ku Klux Klan have oeen arrestea,
convictea ana sentenceo to prison for acts ranging from cross ournings to
oeatings to oomoings to muroer. In other cases, those wno commit such
acts nave not oeen apprenenaeo or successfully prosecuted.

Both regional offices and the State Advisory Committees to the
Commission report intensifieo recruiting efforts dy the Klan, even among
nign school and college students. There is evidence that tne Ku Klux
Klan of the 1980 's is oecoming aaept at getting media coverage to suit
its purposes, thus spreading its influence far beyond what its message or
memoership merit. Mltnougn some orancnes of the Klan nave taKen a
position tnat tney are opposea to violence, tne existence of paramilitary
training camps ana activities run oy the Klan in Alaoama, California,
Nortn Carolina, ana Texas is an ominous sign that more violence may oe
expecteo.

Tne Klan, Nazis, ana similar groups nave oeen somewnat successful in
capitalizing on the socio-economic anxieties of wnites caused by nigh
inflation ana unemployment ana aissatisfaction witn programs tnat help
minorities secure equal access to opportunities in education, employment,
ana housing. Yet it is clear tnat trouoled economic times taKe a more
severe toll on minority groups that still feel excluded from the benefits
of American society and tnat are still disproportionately represented
among tne Nation's poor.

Ttie two most graphic eruptions of racial tensions in recent years
nave oeen tne Miami riots following tne acauittal of police officers in
the death of a olacK businessman, ana tne violent confrontation in
Greensooro, rortn Carolina wnere Kian ana i\azi gunmen snot five Communist
rtorKers Party memoers to deatn. The Civil Kignts Commission nela
hearings in Miami to Determine tne causes of tnose riots, ana tne
Commission's State Advisory Committee in Nortn Carolina nela an open
meeting to consioer the conditions tnat lea up to tne snootings in
Greensooro. witnesses at ootn meetings stressed the importance of open
communication oetween tne minority community ana city officials ana a
willingness on tne part of those local officials to involve minorities in
tne structure of government.

This Commission nas repeatedly urged local officials to take positive
action to ensure that minority communities are a functional part of the
larger communities in wnicn tney exist. Tnat point was made with regard
to tne composition of law enforcement agencies in our 1980 statement,
Police Practices ano tne Preservation of Civil Rights . Currently,
regional offices ana State Aavisory Committees are wording on projects
that will contrioute to an understanding of tne extent to wnicn racial
tensions are exaceroated if there are not gooo police-community relations
ana a reasonaole snaring of power in local government.

With respect to the increasing number of violent acts motivatea oy
racism or anti-semitism, I am pleased to report tnat the news is not all
oad. The Commission's regional offices have reported significant actions

Dy States ana local government, as well as by private citizens, to
investigaue ana try to reauce tne causes ana inciaence of racial tension
and violence.

Inaicative of tne growing puDlic awareness of tnis proolem are tne
following:

Tne Governors of west Virginia and Maryland nave estaolisnea
statewioe tasK forces to consiaer tnis proolem, ana tne Governor of
Oregon nas proposeo legislation to maKe race-relatea vandalism a
felony punisnaole oy up to five years in prison.
Tne Maryiano State Teacners Association nas estaolisneo a system to
monitor tne activities of tne Klan and similar groups, ana tne
National Eaucation Association nas held meetings as part of a
National Anti-Klan Network. Tnere are many other efforts oy
national, State and local groups to monitor tne activities of nate
groups and reauce the level of racial tension.

Tnese efforts snoula oe matched oy a strong response from tne Feoeral
government.

Tnis Commission will continue to monitor tnis proolem, tnrougn its
regional offices ana State Advisory Committees. Furtner, a summary
review of violence-prone nate groups is currently oeing considered oy
Commission staff before oeing presenteo to tne Commissioners. Another
Commission project will involve our regional offices ana focus on the
responses of leaaership to organizations and conditions tnat promote
oigotry ana violence in selectea communities.

On May 19, 1980, tnis Commission urgec Prssiaent Carter to issue an
Executive Oraer or Presiaential Memoranaum cesignacing a memoer of tne
Caoinet to leao a strong unicea Feaerai response to activities of nata
groups. In January, 1981, tne Commission's Report to tne Presioent ano
Congress , sent to President Carter and Presioent-Qect Reagan, stresseo
tne neeo for tne Presioent, tne Congress, and tne Department of Justice
to strengtnen tne Feaerai government's ability to counter acts of racial
violence. It is of critical importance that tne national leaaersnip
speak out forcefully and tnat the Department of Justice oe able to Know
tne extent of tne proolem ana react auickly to counter it.

Now I would like to comment on tne aaeauacies of prosecution jncer 16
U.S.C. Sections 24l, 242, ana 2^5 of those persons wno perpetrate acts of
racially motivated violence. Tne Commission has mace recommendations in
tne area of police misconouct for amenaments to Sections 241 ana 242 in
tne statement Police Practices and the Preservation of Civil Rights
issuea in July 1980. In July of tnis year, tne Commission will release a
new report on this subject titled wno Is Guaroing Tne Guardians? Tnese
recommendations, which I will summarize at tne ena of my testimony are
also valio in punishing inciaences of racially motivatea violence. While
prosecutions for sucn offenses can and snoula oe Drought unaer existing
law, the Commission believes that it is imperative for the Department of
Justice to have a larger staff, as well as more effective statutory tools
to prosecute perpetrators of racially motivated violence. Tne Criminal
Section of the Civil Rights Division of tne Department has an authorized
strength of 21 attorneys. The Commission nas noteo this oefore ana does

not feel that current staff levels are adequate. Nonetheless, I oelieve more
vigorous prosecutorial activity snoula De tne nignest priority of cne
Department of Justice, witnout tne right to De free of racially-motivated
murder, no other civil right nas any value at all.

Tne Commission is well aware of the aifficulties of prosecution under
Sections 241 and 242. We have closely analyzed these statutes from the
stanopoint of rearessing unlawful police conouct. Tne statutes, aespite
their limitations, have, however, proviaed a basis for a federal response to
instances of police misconaucc. Sections 241 ana 242 were in fact enacted to
stem the growing cioe of racially motivated violence that arose in tne
Reconstruction tra. oecause tney were passed to oeal with tne very proolem
witn wnicn tne nation is presently facea, we must make use of tnem. Tne
statutory limitations tne Commission nas previously nigniighted in tne area
of police misconduct are proolems of a general nature ana are applicaole in
prosecuting those wno commit racially motivated crimes.

The use of Sections 241, 242, and 245 can oe invaluaole in permitting tne
Department of Justice to seek Federal criminal convictions against
individuals who perpetrate acts of racially motivated violence. Sections 241
ana 242, nowever, particularly suffer from suostantive and procedural defects
tnat could impede the prosecution efforts of the Department of Justice.

Section 241 makes it unlawful for two or more persons to conspire to
deprive a citizen of any rignts secured by the Constitution or by statute.
Thus a violation of this statute requires proof of (1) the actual existence
of a conspiracy, (2) the ooject of the conspiracy being the deprivation of
guaranteed rignts under the Constitution or Federal law, and (3) the American

citizensnip of cne person being oeprived of sucn rignts. Federal courts
naveuniformly reauired a specific intent to ceprive a citizen of sucn
rignts in oroer to sustain a violation unaer Section 241. !_/

Tne scope of rignts tnat can oe tne suoject of a Federal prosecution
have evolved througn Federal case law. Altnougn tne legislative nistory
of Section 241 maKes it clear tne statute was created to protect rignts
guaranteed unaer the Tnirteentn, Fourteenth and Fifteenth Anienaments,2_/

!_/ Proof of specific intent was first neld to oe necessary in actions
under Sec. 242. Screws v. Lhitea States, 325 U.S. 91 (1945). This
requirement was suosequently incorporatea in actions unaer Sec. 241
in Guest v. United States, 383 U.S. 745 (1966) in which the Supreme
Court hela tnat tne requirement of specific intent is met by proof of
the conspiracy, which by definition requires knowledge of its
criminal oojections.

2/ Section 2al was originally enacted unaer_ tne Enforcement Act of 1870
ana was intenoea to reacn purely private conspiracies, specifically
Ku Klux Klan activities. In fact in tne Kevisea Statutes of
1874-1878 language ooviously aimea at the Ku Klux Klan was adoea that
specifically prohioited anyone "from going in disguise on tne
highways" or on the property of another with the intent to deprive a
person of guaranteed rights.

the supreme Court in Uniteo States v. CruiksnanK 3/ limitea tne scope of
tne statute in nolaing tnat a aetermination .-nust oe mace as to wnetner tne
rignt serving as the source of prosecution is in fact a rignt flowing
directly from tne powers delegated to tne Feaeral government. Aaoitionally ,
tne Court neld that certain fundamental rights existed prior to tne aooption
of tne Constitution and thus could not oe the subject of prosecution under
Section 241. This view persisted until United States v. Williams A/ in
Which Justice Douglas in nis dissent indicated that some of the Justices
were inclineo to review the scope of Section 241 to include protected rights
outsioe tne narrow restriction of rights flowing from Feaeral powers.

Cruikshank and Williams were finally overruled with the Supreme Court's
decisions in United States v. Price 5/ and Guest v. United States 6/ in

3/ 92 U.S. 542 (1876).

4/ 341 U.i. 70 U950).

5/ 383 U.b. 787 (1966). Prosecution was Drought under Sees. 24i and 242
against fifteen private individuals and three police officers for
allegealy conspiring to oeprive three civil rignts workers of tneir
Federally protected rights.

6/ 383 U.S. 745 (1966). Prosecution was Drought solely uncer Sec. 241
allegedly that private individuals conspired to interfere with
blacks' access to public accommodations in violation of Title II of
the 1964 Civil Rights Act.

wnicn tne Court neld tnat Section 241 also incluaed tne guarantees of the
Fourteentn ^menament. In Price , tne Court neld tnat Congress coula not have
intenaea tnat Section 241 oe applicaole only to a restricted category of
rignts. In fact Congress must nave intenaea tne statute to emorace all
rignts uncer tne Constitution.

In Guest tne Court nela tnat in conspiring to Deprive olacks of tne
rignt to enjoy puolic accommodations operated oy tne State of Georgia, tne
conspirators nad violated rights protectea under tne taual Protection Clause
of tne Fourteenth Amenament. Even absent proof of cooperation petween state
officials ana tne conspirators, an allegation tnat tne conspirators causea
blacks to oe arrested through false reports was sufficient to oe within the
aegis of tne Fourteenth Amendment.?^/

Tne case law aemonstrates tnat Section 241 has oeen viewed as protecting
those rignts flowing from the Federal powers. Guest ana Price make it clear
the statute encompasses those rignts guaranteed unaer tne Fourteenth
Amenament. It snoula oe noted, however, that both cases sufficiently
alleged conspiracies oetween private individuals ana state officials.
Whether Section 241 reaches purely private conspiracies, absent Stats
action, to ceprive an individual of Fourteenth Amenament rignts, nas not yet
been settlea by the case law.

7/ In addition, tne Court held that a conspiracy to interfere with the

fundamental right to travel freely between states is a proper suDject

under Sec. 241. Tne Court did not consider the source of the

Constitutional right to travel, out acknowledged simply that the right
exists.

Section 241 nas oeen neld to protect not only rignts guaranteeo unoer
tne Constitution, out rights granteo under tne laws of tne unitec States.
In uniteo States v. Jonnson , 8/ tne Supreme Court neio tnat oecause tne
Civil Rignts Act of 1964 granteo a rignt to enjoyment of puolic
accommodations, tnis rignt was secureo under tne laws of tne Uniteo States
and, tnerefore, protected oy Section 241. Thus, provioed tne right tnat is
tne suDject of prosecution is one granted Dy tne laws of tne United States,
it may properly be Drought unaer Section 241.

From a prosecutorial perspective tnere are several proolems unoer
Section 241. First, the statute applies only to conspiracies. By
cefinition a conspiracy reouires more tnan one person, tnereoy precluding
prosecution unoer tnis statute of a private inoividual acting alone.
Seconoiy, Section 241 protects only U.S. citizens. If tne civil rignts of
an alien or foreign visitor are violated, prosecution woulo not be permitted
unoer tne statute, rtltnough violence nas tnrougnout tne last hunoreo years
oeen perpetrated on the apparent basis of race, recent immigrants and
newly-arriveo refugees nave also oeen subject to repeated acts of violence.
Altnougn we nave recommended tne strengthening of Section 24l in these
areas, tnere is no reason wny it cannot oe used effectively in existing
cases of violations against American citizens.

8/ 390 U.S. 563 (1963). Prosecution was brought against private

individuals who in violation of Title II of tne 1964 Civil Rignts Act,
conspired to oeprive tnree olacKs of tneir rignt to patronize a public
restaurant.

bection 242 was originally enactea as part of tne Civil Kigncs Act of
1866. Legislative nistory indicates tnat tne statute was aesigneo to
effectuate tne Tnirteentn Amenoment. under Section 242 it is a criminal
offense for a person acting under color of any law to wilfully suDject any
U.b. innaoitanc to tne aeprivation of any rigncs guaranteed oy tne
Constitution or Federal law or to different punishments, pains or penalties,
by reason of alienage, color or race, from tnose prescridea for cne
punishment of citizens. In Screws v. Uniteo States 9/ the statute was
cnallenged as oeing unconstitutionally vague with respect to tne nature ana
extent of tne actual rignts to oe protected and that tnere was no
ascertainaole standard of guilt under whicn tne defenoants coulo oe judged.
Tne bupreme Court nelo that the statutory term "wilfully" requireo a snowing
of specific intent to deprive tne victim of Feoerally protectee rignts. In
adoition tne rignt to oe protected coulo oe maoe definite oy juoicial
interpretation or "otner rule of law," tnereoy providing aaequate notice as
to wnat actions are proscrioea oy Section 242. Tne Court also noteo that
proof of specific intent does not require a snowing that tne oefenaent Knew
tnat the rignt was in fact protected.

9/ 325 U.S. 91 (1945).

Although the language in Section 242 speaks to state action, it is
settled tnat the statute is sufficiently broad to emorace tne action of
private individuals. The Supreme Court in Ihlted States v. Price 10/ held
that in reaching private parties the requirement of acting "under color of
law" is met if it can be shown that such private individuals wilfully
participated in a joint activity with State officials to deprive tne victim
of guaranteed rignts-

Despite widespread use of Section 242, there are several proolems in
prosecuting these cases. Requiring a showing of specific intent has proved
to oe an impediment to prosecution. A prosecutor may be unable to prove
beyond a reasonable doubt that the defendant specifically intended to
violate the constitutional or civil rights of tne_ victim. If tnis burden of
proof is not met, a jury cannot return a guilty verdict. In addition, jury
instructions regarding specific criminal intent may be confusing because
specific intent involves a complex constitutional standard, one tnat is more
readily understood oy attorneys who are specifically trained to deal with
constitutional issues.

Pernaps even more troubling than the prosecutorial proolems, is tne '
penalty provided under Section 242. The maximum punishment for a conviction
under the statute is a $1,000 fine, and one year imprisonment, unless
death results in which case the maximum punishment is any term of years
or life. The combined effects of a low-level penalty, the difficulty
of proof, and the generally limited resources and high caseloads of
prosecutors may serve as a limiting factor in bringing Section 242 actions.

10/ 383 U.S. 787 (1966).

Section 245 contains many of tne features strongly recommenoeo t:o
Congress oy tnis Commission in its 1965 report, Law Enforcemsni:: A Report. On
Equal Protection In The Soutn . It was enactso during tne perioo of nistory
wnen civil rignts worwers were met with violence in tne. Soutn. Tne
legislation was oesigned to make Federal prosecutions more effective oy
incluaing more specific language than that founa in Sections 241 ana 242.
Section 245 specifies a list of activities affordea Feaeral protection. The
statute also provioes a second list of protected activities, out
interference witn tnese activities is proscrioeo only if tne interference is
motivateo oecause of tne victim's race, color, religion or national origin.

Section 245 afforos oroad protection of rignts and ooes not suffer from
tne vague language that nas created limitations on tne scope of Sections 241
and 242. Tnere is no reauirement of proof of conspiracy, out tne Defendant
must act wilfully wnicn may require a snowing of specific intent. Tne
statute applies to individuals who interfere witn tne specified activities,
wnetner or not tney act under color of law. There is no requirement tnat
the victim oe a Uniteo States citizen, Tnus prosecution could be institutea
against a single inaividual, acting alone, wno interferes witn tne protected
rignts of any person.

witn respect to Sections 241, 242, and 245, the Commission offers tne
following recommenaations :

Section 241 woula nave broaoer application if tne element of conspiracy
were removeo. Tnis woula permit tne prosecution of single inoiviauals,
acting alone. Some of tne reports of racially motivateo violence nave
indicateo tnat tne perpetrator has in fact acted alone, ivitn tnis

impeaimenc removea from Section 2al Feaeral prosecutions coulo os instituted
against sucn inaiviauals.

The Commission also recommends that tne restriction that the victim must
oe a United States citizen be eliminated. Tne Commission does not oelieve
tnat an offenoer snould De shielded from prosecution solely oecause of the
citizenship status of the victim.

Witn regara to Section 242 tne Commission recommenos tnat tne juoicially
imposed requirement of a snowing of specific intent oe removea. Federal
prosecutors woulo nave a far simpler task in convincing juries tnat
aefenaants aeprivea tneir victims of protected rignts.

The present penalty unoer Section 2A2 may oe a negative prosecutorial
incentive ana accordingly the Commission recommends tnat unlawful acts of
law committee unoer color of law be treatea as felonies uncer any
circumstances. Raising tne punisnment of an offense under Section 242 to
the level of a felony could serve as a deterrent and increase tne liKelinooo
of prosecutions being orougnt unaer tne statute.

Section 245, altnougn tne oroadest of tnese tnree statutes, also
contains language that is specific enougn to avoia the challenges of
vagueness that Sections 241 and 242 nave undergone, with regard to more
effective prosecution of private individuals, it would seem that
prosecutions unaer Section 245 could easily reach prohibited conauct not
covered oy Sections 241 and 242. The dearth of caselaw regarding Section
245 reflects tne low numoer of prosecutions brought under the statute. Tne
Department of justice may oe able to more fully respono to any auestions you
may nave as to wny more prosecutions are not brought pursuant to Section

11-647 0-83-7

245. iince tne statute was enactea to proviae oroaoer Feaeral protection of
civil rignts, the Commission wouia urge cnat more .viaespread use oe mace of
Section 245. It, too, can oe a valuaoie statutory tool in stemming tne
increase of racially motivatea violence in tnis country.

Tne steaoy increase of racially .motivatea crimes is cause for the
gravest concern. The struggle for civil rignts in tnis country has been an
arouous one. we nave come too far to let tne struggle of many be unoone by
tne lawlessness of a few. We as a nation must maKe a concerted effort to
fino effective means for oeterring and punisning tnese acts of violence. We
have presently at our oisposal tne necessary means to oring a halt to tne
growing numoer of acts of racially motivateo violence, we nave no choice
but to maKe swift use of these means.

I oecame more aware of tne negative effect on respect for law in tne
olacK community when I spent years researching the Justice Department files
on the issue of tne Feaeral response to violence against and oy olacKs for a
booK I puolished in 1971, dlacK Resistence/White Law: A History of
Constitutional Racism in America . Tne complaints oy Dlacks involving murder
- often witn police complicity - that were sent to the Justice Department
oetween the era of reconstruction and the Price and Guest cases most often
receivea the response that murder is not a Federal crime - "See your local
police."

I wonder if similar complaints now receive the response that
prosecutions in such cases are auite difficult and tne Department of Justice
is really Quite unaerstaffeo. Tne statutory oasis for enforcement is
present and, again, let me stress that the Justice Department snould nave no
nigner priority tnan stopping tne murder of ano assault on people for no
reason otner tnan tneir race.

UNITED STATES COMMISSION ON CIVIL RIGHTS

Washington, D. C. 20425

AUG 3 1981

Honorable John Conyers, Jr.

Chairman

House Judiciary Committee

Subcormittee on Criminal Justice

Wasnington, D. C. 20515

Attn: Oliver Quinn

Dear Chairman Conyers:

On June 3, 1981 Vice Chair i*tery Frances Berry testified before the
Subcommittee on Criminal Justice on the effectiveness of Federal law and.
law enforcement in countering acts of racial violence. During the course
of that testimony and the subsequent question and answer period, several
issues were raised by you and your colleagues. Enclosed are materials
compiled by Commission staff that address the concerns of members of the
SubcOTimittee:

1. An Office of General Counsel memorandum providing a bibliography
on the scope and adequacy of 18 U.S.C. Sec. 241;

2. An Office of General Counsel memorandum regarding the
applicability of 18 U.S.C. Sees. 242 and 245 to non-minorities;

3. An Office of General Counsel memorandum regarding the extent
to which Department of Justice actions on racial violence
complaints are monitored by the Civil Rights Commission; and

4. The proceedings of a Commission hearing on the Federal role
in the administration of justice including testimony from
Drew Days, Assistant Attorney General for Civil Rights,
Francis Mullen, Executive Assistant Director for Investigations,
Federal Bureau of Investigation, and Gilbert Pompa, Director,
Community Relations Service.

I trust you will find this material helpful. If the Commission can be of
any further assistance, please do not hesitate to contact the Congres-
sional Liaison Division at 254-6626.

Sincerely,

CnJ i[ i \ '-Pi

7 it JC^- L. i_.

CAROL A. BONOSARO

Assistant Staff Director for

Congressional & Public Affairs

Enclosure

UNITED STATES COMMISSION ON CIVIL RIGHTS

Washinglon, D. C. 20425

DATE : June 19, 1981

REPLY TO OGC
ATTN OF I

Request from House Judiciary Subcommittee for a Bibliography
SUBJECT I ^j Literature on the Scope and Adequacy of 18 U.S.C. §241

TO :

THRU:

Carol A. Bonosaro

Assistant Staff Director for

Congressional and Public Affairs

This brief memorandum is in response to a request from
Representative Conyers for a bibliography of literature
pertaining to the scope and adequacy of 18 U.S.C. §241.

There does not appear to be much literature concerning the
scope and adequacy of Section 241. The following is a list
of what appears to be relevant:

Calhoun, The Thirteenth and Fourteenth Amendments;
Constitutional Authority for Federal Legislation against
Private Sex Discrimination , 61 Minn. L. Rev. 313 (1977)

Comment, 63 Geo. L. Rev. 203 (1974)

Comments, 43 Chi. L. Rev. 542 (1976)

/('

DERRYL D. STEWART
Attorney-Advisor

^^ -'fiy ^Zi:i]f

DATE

THRU:

UNITED STATES COMMISSION ON CIVIL RIGHTS

Washington. D. C 20*2^

ulJUUZ^ A9: tj^

June 19, 1981
OGC

Request from House Judiciary Subcommittee on Racially
Motivated Violence

Carol A. Bonosaro

Assistant Staff Director for

Cooocessional and Public Affairs

In response to a request from Representative McCollum,
this memorandum addresses the applicability of Sections
242 and 245 to non-minorities.

Prosecutions may be brought under 18 U.S.C. §245
regardless of the victim's race, color, or national
origin. The statute specifies a list of activities
afforded Federal protection. 1/ There is no requirement
that the interference with these rights be motivated by
the victim's race, color, or national origin. Section 245
also includes a second list of protected activites, but
interference with these must be based on the victim's
race, color, religion, or national origin. 2^/ It is clear
that at least with regard to certain acitivites,
prosecutions may be brought pursuant to Section 245
whether or not the victim is a member of a minority group.

Although 10 U.S.C. §242 was primarily enacted to protect
blacks from violence by whites during the Reconstruction
Era, it is clear that the statute also affords protection
to whites. Senator Trumbull, the author of the bill, in
describing the bill said it would "protect all persons in
the United States in their civil rights, and furnish tfffe
means of their vindication." 3^/ In fact after some
discussion of the bill, the Senator stated, "It is a bill

1/ 18 U.S.C. §245(b)(l) (1976).
2/ 18 U.S.C. §245(b)(2) (1976).
3/ Cong. Globe, 39th Cong., 1st Sess. 211 (1866)

providing that all people shall have equal r ights . . . . [T]his
bill applies to white men as well as black men." 4/

In United States v. Classic bj the Supreme Court validated use
of Section 242 for prosecution of violations of rights other
than those violated on account of race, color, or national
origin. Classic involved a two count indictment charging that
the Louisiana Commission of Elections altered and falsely
counted and certified ballots in a primary election in
violation of Sections 241 and 242. The Court found that the
requirement that the action have been taken "under color" of
law had been satisfied. The alleged violation, however, had
not been on account of race, color, or national origin. In
finding that the Commission of Elections had in fact violated aj
right subject to protection under Section 242, the Court
reasoned that

the qualification with respect to alienage,
color and race, refers only to differences
in punishment and not to any deprivations of
any rights or privileges secured by the
Constitution is evidenced by the structure
of the section and the necessities of the
practical application of its provisions.
The qualification as to alienage, color and
race, is a parenthetical phrase in the
clause penalizing different punishments
"than are prescribed for citizens," and in
the common use of language could refer only
to the subject-matter of the clause and not
to that of the earlier one relating to the
deprivation of rights to which it makes no
reference in terms. 6^/

Thus the Court found that Section 242 provided punishments for
two types of offenses. "The one is willfully subjecting any
inhabitant to the deprivation of rights secured by the
Constitution; the other is willfully subjecting any inhabitant
to different punishments on account of his alienage, color, or
race, than are prescribed for the punishment of citizens." 7/

(

4/ I^. at 599.

5/ 313 U.S. 299 (1941).

6/ Id. at 326.

7/ Id. at 327.

Since Classic , few cases have considered this issue. In Miller
V. United States , 8/ the defendants, two police officers,
appealed convictions under Section 242 for abusing two non-
minority arrestees. The defendants contended that prosecutions
under Section 242 were appropriate only if the violation of
rights were based on the victim's race, color, or national
origin. The court rejected this contention citing the
distinction made in Classic . Because the defendants, acting
under color of law, deprived the victims of their constitu-
tional right not to be punished without due process of law.
Section 242 was violated. 9/

Section 242 has proved to be a most effective tool in
prosecuting instances of police brutality. The statute
apparently has been used in these prosecutions without regard
to the race, color, or national origin of the victims. 10 /

■ y '''/'\f' 4^'

DERRYL D. STEWART
Attorney-Advisor

8/ 404 F.2d 611 (5th Cir. 1968), cert, denied , 394 U.S. 963
T1969) .

9/ I^. at 512.

10/ See U.S. v. Mays, Crira. No. 4-78-77 (S.D. Tex. 1979) which
involved prosecution of a police officer under Section 242 for
the killing of a white youth. It should be noted that 42
U.S.C. §1983 which permits any person to bring civil suit
against a person, who under color of law, deprives the victim
of guaranteed rights, contains no limitations with respect to
race, color, or national origin. Sections 241 and 242,
however, have no application to civil suits under Section
1983. Aldabe v. Aldabe, 616 F.2d 1089 {9th Cir. 1980); Myers
v. Couchara, 313 F. Supp. 873 (E.D. Pa. 1970).

100

UNITED STATES COMMISSION ON CIVIL RIGHTS

Waskinglon. D- C 20*25

DATEtJuly 24, 1981

REPLY TO

ATTN OFsQff ice of General Counsel

SUBJECT : Request from Representative Conyers

TO: Carol A. Bonosaro

Assistant Staff Director, OCPA

^^'

Paul Alexand
Acting General

The Office of the General Counsel is the lead office in the
agency for monitoring developments in the area of the
administration of justice. One aspect of our monitoring
responsibility in the area involves keeping track of major
cases investigated or filed by the Civil Rights Division of
the U.S. Department of Justice under §§241 and 242 of the
Federal criminal code and analyzing new policy developments
affecting the responsibilities of the Civil Rights Division,
the U.S. Attorneys and the Federal Bureau of Investigation.

We fulfill our monitoring duties with respect to cases arising
under §§241 and 242 in three ways: (1) we receive a weekly
activity report from the assistant attorney general for civil
rights that describes the Division's recent investigations,
indictments, and trials (2) we hear from representatives from
the civil rights division at our consultations and hearings
that address issues in the area of the administration of
justice (3) we formally and informally inquire about the
progress and disposition of selected cases that we have chosen
to monitor.

At a consultation on police practices and the preservation of
civil rights that the Commission held in December 1978 then
Assistant Attorney General Drew S. Days said that the Civil
Rights Division receives

upward of 10,000 complaints each year
from individuals who believe their
civil rights have been violated and
that the Federal Government should act
in their behalf. While large numbers
of these complaints are beyond the
jurisdiction of Federal criminal law,
the Federal Bureau of Investigation
conducts over 3,000 active

101

investigations into allegations of
police misconduct annually. These
investigations are referred
simultaneously to the criminal section
of the Civil Rights Division and to the
appropriate United States attorney for
prosecutive evaluation.

Approximately 50 to 100 matters are
presented to grand juries each year,
and of those, 25 to 50 actually result
in indictments. For the last fiscal
year, 36 prosecutions were initiated,
charging 66 defendants, and just over
70 percent of these cases prosecuted by
the Civil Rights Division and United
States Attorneys resulted in conviction.

At a recent Commission hearing held last September to assess
the role of the Federal Government in the administration of
justice. Assistant Attorney General Days presented the most
recent figures for receipt, investigation and disposition of
cases arising under §§241 and 242 but the figures did not
differ dramatically from the figures presented in 1978. The
number of complaints received was around 11,000, many of which
were matters outside the jurisdiction of the Federal
Government. The Department of Justice takes the prosecutorial
initiative in 50 to 100 cases a year but has a conviction rate
that fluctuates between 45 and 70 percent for cases involving
the prosecution of police officers, compared to a 96 or 97
percent conviction rate for other prosecutions. Mr. Days
attributed the disparity to a discrepancy in the way that
juries respond to cases when police officers are defendants.

M. GAIL GEREBENICS
Assistant General Counsel

102

Mr. CoNYERS. Our next witness is Prof. Denise Carty-Bennia.
Professor Carty-Bennia has been on the faculty at Northeastern
University Law School in Boston since 1977. She teaches Constitu-
tional Law and Federal Jurisdiction, as well as Civil Rights and
Civil Procedure.

She has been active in a number of legal activities and organiza-
tions. Welcome before our subcommittee. We are glad that your
flight connections have worked out all right. We will incorporate
your prepared testimony into the record. I want you to refer to as
much of it as you want to in the discussion here today.

TESTIMONY OF DENISE S. CARTY-BENNIA, PROFESSOR,
NORTHEASTERN UNIVERSITY SCHOOL OF LAW

Ms. Carty-Bennia. Thank you. I would prefer not to present my
prepared testimony and simply let that be part of the record.

I would like to open though with what I believe to be the central
issue involved in the hearings that your subcommittee is having
here today. I do believe the 13th amendment to the U.S. Constitu-
tion provides a historic and without precedented foundation, if you
will, for the notion that the acts of racial violence that we now are
becoming aware of sweeping the country can, in fact, be investigat-
ed and prosecuted and remediated by the Federal Government.

In fact, I would suggest to you that the principal difficulty with
the present way in which the Federal Government is approaching
the law is that it fails to perceive that within the 13th amendment
there are, in fact, two prongs addressed.

That is to say, the abolition of slavery and involuntary servitude
must be dealt with on many multiple levels; that the Congress, at
the time of the adoption and ratification of the 13th amendment,
was concerned clearly with the rise of the institution of slavery as
most of us understand it, but was also concerned about the badges
and incidents of slavery which carried over to freed blacks that re-
sided in areas outside of the Deep South and who were not in fact
slaves, but who were bearing stigma as a result of the color of their
skin and as a result of the color of their skin, being associated with
the peculiar institution of slavery.

As a result, the 13th amendment not only abolishes slavery, but
it also abolishes the badges and incidents of slavery. That is any
acts public or private which go to the maintenance and the preser-
vation of the degradation or the inferiority of black people in the
United States of America.

It is upon that basis that I would suggest that sections 241, 242
and the civil statutes, 1981 through 1989, provide a basis for Feder-
al intervention to investigate and prosecute the current acts of
racial violence now sweeping the country, again almost as if in a
cyclical pattern as we begin to move into another tight economic
period where we tend to seemingly see a lashing out on those least
able to protect themselves.

Mr. CoNYERS. What are the badges?

But first, before we get to that, where did this notion derive
from? Case law?

Ms. Carty-Bennia. What notion?

103

Mr. CoNYERS. The notion that the badges and incidents of slavery
must also be abolished along with the institution?

Ms. Carty-Bennia. That is part of the legislative history sur-
rounding the enactment of the 13th amendment. It is one of the
great travesties that most law students and lawyers have not taken
a look at the legislative history, which is very clear on the issue.
Interestingly enough, the debate around the enactment of the
13th amendment was really not a debate about the abolition, if you
will, of the badges and incidents of slavery as it was a debate about
what branch of Government was going to be responsible, if you
will, for the preservation of the abolition of slavery and the badges
and incidents thereof.

That debate was clearly resolved with the enactment of the 13th
amendment in favor of Federal authority to protect and defend the
rights of the newly emancipated slaves as well as the rights obvi-
ously of all other black people in the United States.
Mr. CoNYERS. Didn't it derive from case law as well?
Ms. Carty-Bennia. Badges and incidents?

Mr. CoNYERS. Yes. Was the phrase used in a Supreme Court case
and taken from legislative history?

Ms. Carty-Bennia. The phrase has been repeated in several Su-
preme Court cases, most notably the Civil Rights Act cases, and ob-
viously the Plessy v. Ferguson, which are the two decisions most of
us are familiar with.

The actual language about badges and incidents can be found in
the legislative history surrounding the adoption of the 13th amend-
ment.

That language actually draws from the framers and drafters of
the 13th amendment.

Mr. Conyers. You are not amazed that nobody reads it though?
We don't read our own stuff much less force unsuspecting law stu-
dents to read it, and, of course, lawyers would refuse point blank.
We couldn't even direct them.

We don't read the Congressional Record from yesterday, much
less 113 years ago.

Ms. Carty-Bennia. Well

Mr. Conyers. As a matter of fact, I am not even sure we could
get the Record for 113 years ago.

I am going to ask staff to do that because I think you have point-
ed out a responsibility that should repose on more Members of Con-
gress, starting with this one.

Ms. Carty-Bennia. If you notice, one of the footnotes contained
in my prepared statement indicates that that record was in fact re-
published in the 1960's so that we have an updated version readily
at hand.
It won't be that difficult. You won't have to go back 113 years.
I am surprised, I think, that people do not read it, because as a
law professor, during this period of time, I am sort of immune, if
you will, to reading fairly negative case decisions and fairly nega-
tive, sort of, law review articles.

What I found very interesting is, while there is clearly a decided
opposition that was present during the course of the 13th amend-
ment debates, there clearly is a very decided group of proponents
of the 13th amendment who argue in terms and in language which

104

is extremely reminiscent of those of us who have been involved in
the civil rights struggle and can lend a great deal of moral support,
if not actual tangible support, as we are confronted with the
present posture of the Justice Department on the question of 241
and 242. ^ ^

Mr. CoNYERS. Your statement breaks into several parts, and the
one I would like you to spend a few minutes with us on is the
meaning of slavery within the 13th amendment.

Ms. Carty-Bennia. Very well.

What I find most interesting about the meaning of slavery
within the 13th amendment is clearly obvious it was designed to
make sure that the institution of slavery, as most of us understand
it, would never rear its ugly head again on the landscape of Amer-
ica.

But the congressional debates make it very clear that they are
going beyond that; that they are going beyond to look at the bur-
dens, badges and incidents of slavery which free blacks were expe-
riencing prior to the Civil War in the North and the South; that is,
violent persecution as well as economic and political deprivations
based solely on the color of their skin and the fact that most other
people with that color of skin were, in fact, slaves.

What I think is of further importance though is that that Con-
gress also recognized that the badges and incidents of slavery ex-
tended, if you will, to whites in America; that this was not solely a
phenomenon that extended to black people or people of color, but
that many, many poor whites had also experienced economic, social
and political deprivations as a result of the institution of slavery.

That is to say, the Congress understood that the institution of
slavery had permitted these slave owners, if you will, the plantoc-
racy, to control the political situation in the South at the expense
of poor whites by feeding them essentially a line that said, well,
you could be worse off; you could be black, and you could be a
slave.

As a result, there had not been a great deal of organization
around the civil rights of poor whites in the South and in many
parts of the North as well.

Mr. CoNYERS. You suggest that that phenomenon continues?

Ms. Carty-Bennia. Oh, no doubt about it.

I would suggest that that is again a fairly cyclical phenomenon;
that to some extent one can attribute a large part of the recent re-
currence of racial violence to the notion that our economy is in
very dire straits and that we are seeing more and more people com-
peting for scarcer and scarcer resources; and rather than sitting
down and making a sizable or, if you will, a rational examination
of the causes for those shrinking resources, people are turning to
what — a very familiar and very easy kind of rationalization based
on some of the civil rights activity that has occurred in the last 15
years, that the problems are all attributed to blacks getting too
many jobs or getting too many affirmative action positions or get-
ting ahead.

Mr. CoNYERS. Could you — thank you.

Could you refer to the portion of your comments entitled "The
Civil Rights Act of 1866" and give us a little amplification on that?

That is a very important part of the history, it seems to me.

105

Ms. Carty-Bennia. I think it is important to understand that the
Civil Rights Act of 1866 did not occur in a vacuum. In fact, the
13th amendment was not ratified — actually it did not have a decla-
ration of ratification until a full 2 weeks after the 39th Congress
had convened to begin to address the problems concerning the
newly emancipated freed men and the basic practical problems, if
you will, of abolishing slavery.

Probably at the top on their list when they convened to address
these problems was the question of racial violence. They convened
a joint commission to investigate this problem which traveled
throughout the South, took an incredible amount of testimony, se-
cured an incredible number of reports and affidavits from Army of-
ficials as well as other governmental officials, which indicated that
one of the single worst problems, if you will, in the South post-Civil
War was the question of racial violence directed toward blacks.

But I think it is important to understand that problem not as a
response necessarily to the Civil War and the Emancipation Procla-
mation, but rather as a continuation of the way in which the slave
South had always dealt with its black population, so that when one
talks about the badges and incidents of slavery, and then when one
reaches the question of the 1866 Civil Rights Act, those acts are not
specifically designed to address a new problem, a problem that has
cropped up just post-Civil War, but a continuing problem and a
problem which presumably should not have continued after the
emancipation of blacks as well as obviously the enactment of the
13th amendment.

So I would suggest to this subcommittee that the Civil Rights Act
of 1866 stands on its own, free of the stain that we find in some of
the judicial analyses of suits brought under some of the provisions
within that act that suggest that it is limited or restricted by subse-
quent judicial interpretations flowing from the 14th amendment
and the 15th amendment.

That is to say that the 13th amendment provides an adequate
and a total foundation for the acts, the Civil Rights Act of 1866
and, as a result, are not constricted by such standards as intent to
discriminate, such standards as the question of — if you will —
whether or not there is a federally protected right involved in the
activity when a black person was assaulted because, in fact, the
13th amendment addresses, if you will, or provides the foundation
for all federally protected rights to be available to blacks.

Maybe another way to put it is that the 13th amendment pro-
tects blacks as a matter of Federal policy, life, liberty and the pur-
suit of happiness.

Mr. CoNYERS. Comment on this, if you will: The 13th amendment
protects blacks from violence which is racially directed?

Ms. Carty-Bennia. That is correct.

Mr. CoNYERS. And that is self-executing?

Ms. Carty-Bennia. That is correct.

Mr. CoNYERS. And in one sense the history, the legal history that
flows from it did not ever necessarily need many of these court re-
strictions that have been tied on it through the years?

Ms. Carty-Bennia. That is correct. I would suggest that the 13th
amendment provides the appropriate Federal governmental agency
with Federal authority to go in and investigate and prosecute acts

106

of racial violence directed toward black people much like the
groundbreaking decision of the court in Gibbins v. Six Unknown
Agents.

That is to say the 13th amendment itself provides the Federal
authority and that the statutes enacted pursuant to the 13th
amendment are perhaps icing on the cake; very nice to have and
useful to have for purposes of answering questions which might
arise during the course of prosecution, but not necessarily essential
to establish that that power is there.

Mr. CoNYERS. That has been suggested by some justices?

Ms. Carty-Bennia. Yes. None of whom are presently on the
court.

Mr. CoNYERS. But at least some

Ms. Carty-Bennia. There may be some correlation between their
leaving the court and their suggesting that. It has been suggested
by a minority of justices during the intervening period since the
enactment of the 13th amendment that that is the true interpreta-
tion of the 13th amendment.

Mr. CoNYERS. This has been written in the legal literature more
than once?

Ms. Carty-Bennia. Yes. It is, I think, a travesty that this is an
area that has not been explored extensively. This subcommittee
has been very privileged to hear from one of the principal scholars
in the area, Prof. Arthur Kinoy, a distinguished colleague of mine;
obviously Professor ten Broek has written extensively in this area.

There are only two or three other articles exploring this area in
any great depth. You are talking about a whole body of literature
that probably totals less than 10 law review articles in the process
of 100 years.

Mr. Conyers. I would have thought that there would be more in
terms of the civil rights movement of the fifties and sixties. After
all, the amendment itself is over 100 years old and its enforcement
for protection of millions of people, citizens under this Government,
has been at issue ever since the Civil War.

So, I do express some surprise that there hasn't been more than
that.

Ms. Carty-Bennia. I am not surprised because I think when one
really takes a close look at the 13th amendment, it is probably the
most radical piece of congressional legislation that the Congress
has ever adopted.

Because of its radicalness, and because of the full implications of
the 13th amendment, it was absolutely essential that it be buried
swiftly and quickly.

I would suggest to you that that is what the court did quite rap-
idly following the Reconstruction period with that burial almost to-
tally complete by the time of the Civil Rights Act cases in 1983;
and clearly the 13th amendment, representing sort of a passing — if
you will, irritation by the time we reached the 1896 decision of
Plessy V. Ferguson and that the first notion that it might be resur-
rected — might be resurrected — can be found in the language of the
Brown v. Board of Education case.

Of course, it was not until 1968 that we arrived at the Jones v.
Alfred H. Meyer case to find this present court recognizing that the
13th amendment does exist and does provide a basis independent of

107

the 14th and the 15th amendments for the prosecution, if you will,
of civil rights violations.
Mr. CoNYERS. Thank you.

Finally, in terms of the direction that we are to go here, we have
a progressive amendment that has been, if not ignored, honored
only to a minimal extent.

We now have a few restrictive court cases. We probably have a
Federal legislature disinclined to deal swiftly with the remedies
that we could suggest.

What paths do you see might be followed by good lawyers and
Congressmen and citizens who might wish to remedy this situa-
tion?

Ms. Carty-Bennia. It seems to me we probably haven t been the
best lawyers that we could be. While I am not unwilling to concede
some hostility from the present Supreme Court, it is clear to me
also that we have not really presented a case on a record which
fully and adequately details the legislative history surrounding the
enactment of the 13th amendment and proposes to trace on a his-
torical basis, if you will, the relationship of a present racial dis-
criminatory practice with some aspect of that racial discrimination
rooted deep in slavery.

I think it is until that point in time when we have really done
our lawyering homework on the question of laying out in almost
Brandeisian fashion, if you will, point by point, the relationship
and the correlation between the institution of slavery and the
present racial discrimination experienced by blacks in this country
that we cannot say that we have exhausted all judicial avenues.

It seems to me that it is clearly quite open and available to the
Justice Department at this point in time to take a look at several
of these cases of racial discrimination and proceeding under 241 or
242, bring the full measure of their expertise to bear on litigating
just such a case.

I think that at that point in time the court will have to take a
step back, or at least expose its disingeniousness about the kind of
interpretation of statutes in relation to legislative history that they
are really engaged in.

Mr. CoNYERS. Well, that is a very refreshing suggestion. I thank
you.

Mr. McCoUum.

Counsel.

Mr. QuiNN. One question, Professor.

Would it be your opinion that a factual situation in which a
black person was subjected to some violence based exclusively on
that person's race without that person being in the process of en-
gaging in any other Federal activity, would that kind of fact sce-
nario form the basis for the type of action that you are talking
about?

Ms. Carty-Bennia. Absolutely.

Mr. QuiNN. Thank you, Mr. Chairman.

Mr. CoNYERS. Thank you very much.

We appreciate your testimony.

Ms. Carty-Bennia. Thank you.

[The prepared statement of Ms. Carty-Bennia follows:]

108

STATEMENT OF PROF, DENISE S. CARTY-nENNIA BEFOFE THE
SUBCXlMMITrEE ON CBJME OF THE HOUSE COMMITTEE ON THE
JUDICIARY
June 3, 1981

My name is Denise S. Carty-Bennia. I am a Professor at Northeastern
University School of Law vdiere I teac±i Constitutional and Civil Rights law
and the jurisdiction and civil procedure of the federal courts system. My
practice has been concentrated in the fields of Constitutional and Civil
Rights law and my organizational affiliations are broad and extensive,
local and national, in these areas. I have been asked to testify before
this Subcommittee on Crime of the House Cbmnittee on the Judiciary con-
cerning the Thirteenth Amendment basis for federal governmental jurisdiction
to address, preventively and punitively,and, thereby, hopefully to curtail,
the increasing nurrbers of incidents of violence directed against Black and
other minority people in the United States.

The Thirteenth Amendnent to the
United States Constitution

Section I. Neither slavery nor involuntary servitude,
except as a punishment for crime whereof the party
shall have been duly convicted, shall exist within the
United States, or any place subject to their jurisdiction.

Section II. Congress shall have power to enforce this
article by appropriate legislation.

It is ironic and tragic that one hundred and sixteen years after the
adoption of the Thirteenth Amendnent, little is known beyond the specific text
of the amendment and even less is understood about it. Its historic insignifi-
cance has never lived vp to its promise as a "grand yet sirrple declaration of
the personal freedom of all the human race within the jurisdiction of this
government" and a "universal charter of freedom vrfiidi had the effect not only

of abolishing the institution of slavery but of rejecting all of its 'badges and

2
incidents.'" The failure of the Thirteenth Amendnent to fxalfill its promise,

and as a consequence the failure of the Fourteenth and Fifteenth Amendments as

well, lie at the heart of the racial maelstrom v*iich has enveloped the United

States since its beginning.

109

I The numsrous and well documented incidents of current racial violence
which have been presented to this Suboonmittee all suggest that pronpt and
effective tnsasures must be taken to overt an iimdnent and irresolvable national
racial crisis. The Thirteenth Anendment not only clearly condemns such racial

! violence but also provides the nandate and authority for the use of federal
power nationally as a weapon against racial violence of all kinds.

The Historical Pixqx)ses of ,
The Thirteenth Mendnent

4
The two congressional debates concerning the adoption of the Thirteenth

Anendnent reflect substantial inanimity on the purposes of the Thirteenth

Anendnent. Opponents of the Amendment argued that it was a constitutionally

unjustifiable and inexcusable e>q3ansion of the federal governmental power

to abolish slavery nationally at the ejqaensa of the ri^ts of the states as well

aa" elevation of Blacks to a level of basic minimum equal rights. Proponents

were no less zealous in expressing their beliefs that the Amendirent would

restore the sipremacy of the Constitution; reaffirm the privileges and

inmunities gviaranteed to all citizens, Black and White, as their natural rights;

and,at last, harmonize federal law with the Preanfole to the Constitution and the

Declaration of Independence. Godlove S. Orth of Indiana stated that " the

effect of such Amendment. . . was to prohibit slavery in these United States,

and be a practical application of. that self-evident truth, 'that all men are

created equal; that they are endowed by their creator with certain inalienable

7
rights; that among these are life, liberty and the pursuit of happiness.'"

Thus, opponents and proponents both understood that Cbngressional adoption of

the Thirteenth Anendnent would revolutionize the federal system by e>^licitly

conferring new power on the federal government.

The Meaning of "Slavery" within
the Thirteenth Amendment

On the heels of the Emancipation proclariHtion and the voluntary abolition
of slavery by border states, this new federal power would have been at best
illusory if restricted to prohibiting slavery in only the literal sense of a

11-647 0-83-8

legally enforceable involuntary servitude. The Congressional debates make
it abundantly clear that the slavery. to be reached by the Amendment included
all of the' bxirdens, badges and indicia of slavery v*iich free Blacks experienced
in the North and South, as v/ell as the incidents of the slave system v^ich
impaired the ri^ts of v^ites.

Stated affimatively, and in the alternative phrases and concepts
used repeatedly throughout the debates, the Thirteenth Amendment
would: first, guarantee the equal protection of the laws to men
in their natural and to citizens in their constitutional ri^ts;
and/or, second, safeguard citizens of the United States equally
in their constitutional privileges and immunities; and/or, ...
a ... nevertheless articulated third, enforce the constitutional
guarantee to all persons against deprivation of life, liberty, or
property- without due process of law. 8

Within the coitplexity of these debates, a curious and subtle phenomena

emerged. Blacks gained the right to be free from the institution of slavery

and all of its attendant badges and incidents. These badges and incidents

were all too well known from the Sipreme Goiirt opinion in Dred Scott v .

9
Sandford in v^ich Chief Jiostice Taney painstakingly ejqjlained that Blacks

had no ri^ts within the political coimtunity vAiich a "white nan was bound to

respect," since as inferior and si±)ordinate beings they were not part of the

"people of the United States" within the neaning of the Constitution. The

self-executing freedom acquired by Blacks through the Thirteenth Amendment

was the freedom to enjoy all of the rights, privileges and immunities

previoiosly enjoyed by v^ites and to assxms their position as equals within

the political conrtvunity. This freedom towers like a li^thouse beacon over

the more general and si:pportive concepts of equal protection and due process

vdiich were imre fully developed in the Fourteenth and Fifteenth Anendnients.

The Thirteenth Amendment therefore not only rejected the institution of slavery,;

but also the supremacy of vdiites based on their skin color. This rejection

was neither ahistorical nor passive. An affimative duty was iitposed on the

nation, in general, and the federal government, in particular, to abolish and

renove all private or public activity whic±i preserved the badges and incidents

. . 10
of slavery and racial inferiority. ;

Ill

The Civil Ri^ts Act of 1866
and Related Legislation

A full two weeks before the ink was dry on the declaration ratifying
the Thirteenth Amendnent^-^the Thirty-Ninth Congress convened to address a
ityriad of probleiiB concerning the newly emanicipated freediten and the prac-
tical consequences of abolishing slavery. Upperrrost on the agenda of the
Congress was the racial violence clearly being directed then at Blacks
throu^out the South Pcountless nunbers of Blacks of all ages and of
both sexes were physically attacked, maimed and murdered in the years
following the Civil War and the Emancipation Proclamation, This violence
escalated in direct relation to the return tC' power of the v^iite plantation
former slave owners who were assisted in their recovery of political power
by President Johnson.

Every method known to force Blacks into sxixnission was oiployed, in-
cluding the open and flagrant reorganization and revitalization of the
antebellum South so-called slave patrols. These patrols often operated in
conj\inction with a militia unit composed of ex-Confederate soldiers. Their
sole purpose was to intimidate Blacks back into their former roles as slaves,
de facto, if not de jure. The high visibility of these patrols was replaced
by the enactment of'Black Codes" which proscribed the terms and conditions

of Black social, political and economic life. The patrols were placed in

14
charge of the enforcement of Code terms.

The Congressional response to this deplorcible situation in the South

was swift and certain. Hearings were convened by a Joint Congressional

Committee on Reconstruction. Hijndreds of witnesses testified before the

Cormittee and painted an awesane and grim picture of the racial violence

sweeping the South. Congress responded with the prompt adoption of the

Eourteeiith and Fifteenth Amendments, as well as the enactment of 18 U.S.C.

$241 and $242 and 42 U.S.C. $1981 through $1989, federal criminal and civil

statutes designed to provide federal protection for Black people fron the

systematic and organized attanpts to revoke their anancipation and Thirteenth

Amendment rights. Enacted squarely against the backdrop of the Thirteenth

Amendment, these statutes continue to provide full federal authority to

investigate and prosecute where appropriate those instances of racial

112 !

I
I

violence, v^iether organized or unorganized, whether directed specifically |
at an identifiable federal right or not, presently sweeping the country. |

j
Conclusion

The legislative history surrounding the enactment of the Thirteenth j
Amendment more than amply demonstrates the self executing .character lof Jiie j
Amendment in the creation of a Constitutional right of Black ouancipation.
This right not only requires but mandates federal enforcement power to insure I
its continued vitality. This federal power may be exercised without statutory j
authority whenever the federal government feels this is nt'Cessary, but I
must be exercised where a Congressional legislative directive clearly .

is on point. 18 U.S.C. $241 and $242, as well as 42 U.S.C. $$1981 through |
1989 clearly point to federal authority to investigate incidents of racial

violence. The Thirteenth Amendment mandates such federal intervention. |

In closing, I would like to take this opportunity to camiend the
previous testimony and by Prof. Arthur Kinoy and his subsequent submissions

to this Svibcamittee. I heartily endorse his rationales and conclusions i

concerning more than ample Constitutional and federal statutory authority i

for Justice Department intervention in the many obvious incidents of racial I

violence presentl sv;eeping the country and threatening to destroy it. I

113

poanvxDTES

1. Slaucjiter house Cases , 16 Wall, 36 (U.S. 1873)

2. Civil Rights Cases of 1883 , 109 U.S. 3 (1883)

3. See generally, ten Broek, Thirteenth Anendment to the Constitution of the
" United States , 39 Calif. L. Rev. 171 (1951)

(cited hereafter as ten Broek)

4. Congressman Janes Ashley of Ohio introduced before the House on Deceirber 14th
1863 the original proposal for a constitutional arnendnent abolishing slavery
throughout the entire United States. Heated debate was conducted in the House
and Senate in the spring of 1864. The Senate passed the amendment at that tiire
but a second lengthy debate on reconsideration was required in th^ House ?j\
January, 1865 to obtain an override vote of the earlier negative" action r

5. See e.g. Cong. Globe, 38th Cong., 1st Sess. 1364,1483, 2941 (1864)

6. See e.g. Cong. Globe, 38th Cong., 2nd Sess. 179-80,216 (1865)

7. Cong. Globe, 38th Cong., 2nd Sess., pt 1, 142-143 (1865)

8. ten Broek, Supra at 180-181

9. 60 U.S. (IS How.) 393 (1856)

10. See generally, Kinoy, "The Constitutional Ri^t of Negro Freedom", 21 Rutgers
L. Rev. 387 (1967)

11. The Thirteenth Amendnent was declared ratified and in force on Decenber 12,
1865

12. 39th Cong. 2nd Sess,, Joint Committee on Reoonstruction, "Report", in
(Washington, D.C., 1966, reissued N.Y., 1970), Part III

13. See generally, Leon Litwack, "Been In the Storm So Long, The Afternath of
Slavery" (New York, 1979); John Nope Franklin, "From Slavery to Freedom:

A History of American Negroes (New York, 2nd ed., 1956); John Anthony Scott,
"The Origin and Developrrent of the KKK as a Badge of Slavery " (unpublished
minEo) ; Kenneth Startpp, "The Era of Reconstruction 1865-1877" (New York 1965)

14. See generally, John Anthony Scott, supra.

114

Mr. CoNYERS. Our next witness is attorney George E. Hairston,
assistant general counsel, National Association for the Advance-
ment of Colored People.

He has been active in a number of trial matters dealing with
racial violence and has written extensively on the subject.

We appreciate your preparation in coming before the committee
and we will incorporate your entire statement into the record. You
may begin your testimony.

TESTIMONY OF GEORGE E. HAIRSTON, ASSISTANT GENERAL
COUNSEL, NATIONAL ASSOCIATION FOR THE ADVANCEMENT
OF COLORED PEOPLE

Mr. Hairston. Mr. Chairman, members of the committee, I am
here pinch-hitting for the general counsel, Tom Atkins. Unfortu-
nately he had to be in court in California on sort of a mandatory
matter and could not be present. We have submitted a statement.
We would like that statement to be included in the record.

Mr. CoNYERS. Without objection, it will be.

Mr. Hairston. The NAACP legal department, of course, consid-
ers racially motivated violence to be a central concern.

These hearings, of course, are extremely important for that
reason in our view. Although the impetus, I suppose, was the
recent spectacular series of shootings of blacks around the country,
the NAACP being a civil rights organization, feels that the level of
racially motivated violence has always been very high.

Since the sixties, since the great civil rights movement of the six-
ties, that there has not been that much of a decrease.

I would just like to summarize one or two points and then submit
myself to any questions the committee might have.

The right of blacks to be safe and secure in their persons and to
be free of racial violence is still not wholly recognized or realized.
Although this committee is quite aware from prior testimony and
its own investigations of the killings in Buffalo, New York City,
Salt Lake City, and the lynching in Mobile, the NAACP legal de-
partment branches throughout the country receive daily reports of
violence committed against blacks. Much of it official, perpetrated
by law enforcement officials themselves and in many cases it is
conspiratorial violence usually associated with the Ku Klux Klan
or similar type groups.

The NAACP has sought to use its limited legal and volunteer re-
sources to deal with the problem. In several States our branches
have offered and supported anti-Klan and antiviolence legislation,
in States such as California, New York, Alabama, North Carolina,
and Georgia.

We have instructed our branches to cooperate in a Klan watch in
order to monitor the growing activity of Klan and Fascist groups
throughout the country.

We have brought suit, along with the Center for Constitutional
Rights in Chattanooga, Tenn., against the local Klan group there,
under the civil rights statutes.

For several years, we have been fighting the Klan activities in
the armed forces, notably in Naval and Marine bases in California

115

and Puerto Rico. We routinely file civil actions in cases of police
brutality and misconduct.

We recognize, however, that dealing with the problem of violence
in our society is primarily the role of State and local law enforce-
ment agencies. Unfortunately those agencies have many times
been the problem, as it is sometimes said.

Illegal and abusive use of force against blacks and minorities by
law enforcement agencies is endemic and State laws governing the
use of force by officers of the law practically allow executions on
the spot.

I think it has been pointed out several times to this committee
that there has been a historical failure on the part of the States to
deal with racial violence or deal with the violence growing out of
the assertion of rights by blacks and other minorities.

That failure, of course, necessitated the civil rights laws that we
have been discussing, which were enacted in 1866 and during the
1960's.

Of course, it is the position of the NAACP that some assertive
Federal action is still required because, as I have said, it is our po-
sition that the level of violence remains high and it has not been
adequately dealt with, certainly not on the State level nor by the
Justice Department.

The Justice Department has historically and as a matter of
policy been reluctant to act with regard to racially motivated vio-
lence.

Of course, that is the subject, somewhat peripherally, of these
hearings.

In 1975, because of that reluctance, the NAACP sued the Attor-
ney General of the United States because that office had, since
1959, followed a policy of not prosecuting individuals "where there
has already been a State prosecution of that individual for substan-
tially the same acts or act."

This policy was changed in 1977 in part in response to the law-
suit. Subsequently the NAACP agreed to dismiss the suit, but with-
out prejudice, to reinstitute it in the event the Civil Rights Division
of the Justice Department did not take affirmative action and
begin to make independent investigations and independent pros-
ecutions of racially motivated violence.

That suit, by the way, was addressed specifically to the acts of
law enforcement agencies. It grew out of a situation in Arkansas
where an interstate traveler was taken off the highway for speed-
ing by a State policeman and local sheriffs deputy. He was taken
into a small town to pay his fine; he paid the fine. He went back to
ask for a receipt and was subsequently shot through the head.

The U.S. attorney at that time in that district recommended that
there be Federal action but the Justice Department took no action.
Instead, they allowed the State proceeding to go on and take a back
seat to the State proceeding. The State indicted the policeman and
there was an acquittal after 7 minutes of jury deliberation.

After that we sued the Justice Department, as I said, on the
basis of the failure of that agency to act.

Under the new policy issued by former Attorney General Bell, I
believe there have been a number of civil rights prosecutions, and
criminal prosecutions during the past 2 years.

116

.J 1

I believe former Assistant Attorney General Drew Days indicated
to the committee the number, but it was clear that that had only I
begun since 1977. j

Listening to the testimony and having familiarized myself withi
some of the issues that the committee is concerned with, it is quite
apparent that the scope of the jurisdiction of the Civil Rights Divi-
sion in bringing criminal actions under the Criminal Civil Rights
Acts, 241, 242, and 245, is of primary concern and is questionable.]

I suppose the question is. Does it have to be amended in some
way or new legislation required?

We would join with Prof. Arthur Kinoy and many of the other
speakers in putting forth the proposition that there is still ample
authority under the present statutes to reach almost any act of ra-
cially motivated violence, regardless of whether the victim of that
violence was engaged at the time it happened in what has been
termed a "federally protected activity."

There is obviously a predicate in the 13th amendment in that the
judicial law flowing from that amendment, although it has not
been stated directly, would lead anyone to the practical conclusion
that it does make life and liberty a right.

Racially motivated violence, alone, where the intent of that vio-|
lence is to deprive one of life and thereby liberty certainly is cov-j
ered by 241 and the 13th amendment.

We would say there is ample authority.

However, the Justice Department does not believe that to be the
case and they have relied on an interpretation that has not been
expressly made by any Federal court. Instead, I believe what they
have done is to fashion a policy that they believe is in line with
what would be the interpretation of the Federal court.

However, the present legislation does appear to be deficient in
one respect and that is under 241 there must be more than one
actor, there must be concerted activity by one or more persons.

That requires, of course, a conspiracy. It does not reach the indi-
vidual, private, motivated act of racial violence which we have seen
occur recently. _ j

I believe legislative action specifically addressing that issue is re-
quired.

Lastly, though most importantly, the new administration must
make clear to all that it does not condone nor will it tolerate the
present level of violence committed against minorities.

The NAACP feels that it can begin to send this message by|
acting on the several investigations now under consideration in the
Civil Rights Division of the Justice Department.

It would certainly be a clarion call to immediately appoint as
Chief of the Civil Rights Division someone who is sensitive to the
issue and is forthright in action.

The NAACP also endorses the call for a special task force to be
created within the Civil Rights Division to deal solely with racial
violence by means of criminal prosecutions as well as civil injunc-
tions.

Nothing less than an unambiguous commitment to prosecute
murderers, to stop the cross burnings, and bombings, and to close
the paramilitary camps will curtail the present trend.

117

Mr. CoNYERS. Thank you very much. Your organization still has
its work cut out for it, I can tell.

First of all, we do not have an Assistant Attorney General
named to the Civil Rights Division, so it would seem that that pro-
vides an excellent opportunity for the NAACP to meet with the
President to deal with this policy because it would be important
that we determine the legal view of that person going into that
office right away.

In a way — for the first time — I can thank the administration for
not moving so swiftly.

It is important that we know that they are going to be careful to
select just the right person for this very sensitive position.

I mean, responding appropriately to bombings and violence is a
very tall order. We are going to need all the Attorneys General and
their assistants that we can find, but it would be critical that this
view be interposed before that person is named.

Would you not agree?

Mr. Hairston. Sir, as you probably know, the NAACP tradition-
ally has scrutinized Supreme Court appointments, executive ap-
pointments, all such positions whenever we can in advance for the
purpose of putting forth our views and our concerns about that per-
son^ qualifications and sensitivity to the issues that the NAACP is
concerned with.

We have in conjunction with other organizations, requested a
meeting with the present Attorney General to discuss these mat-
ters. We met with members of his staff.

We were not entertained by the Attorney General himself.

At that meeting, by the way, which was attended by the Chief of
the Criminal Division of the Civil Rights Division, the interpreta-
tion of the policy which we have been talking about here — the re-
strictive jurisdiction of the Civil Rights Division in criminal mat-
ters was put forth again.

That is, they repeated once again what has been repeated here,
and what has been stated here by former Attorney General Days.

Mr. CoNYERS. What was that?

Mr. Hairston. That policy is that they do not believe they can
reach, under the present law, racially motivated violent acts where
the victim was not engaged in a federally protected activity.

I would like to say that I am presently engaged in a matter in
Chattanooga, Tenn., as I indicated before. The case is called Crum-
sey, et al. v. the Justice Knights of the Ku Klux Klan and Three
Individual Persons. The incident out of which the case grew oc-
curred in April 1980.

j From the beginning, as indicated by former Assistant Attorney
General Drew Days, his office investigated the matter and took
under consideration.

They are still investigating, I suppose. They still have it under
consideration, I believe, with perhaps eight other situations.

We have sued the same parties, and they are now determining
whether or not they are going to bring criminal actions. This, of
course, impacts on our case and affects it somewhat, but there is
quite a possibility that the Justice Department will decline to take
jurisdiction and they would do so on the very basis we have been
talking here. That is, that the victims were not involved in a ra-

118

cially protected activity. There were four women who were shot
while walking on the street after leaving a nightclub in Chattanoo-
ga, Tenn., by three acknowledged KKK members. It is our strong
belief that the Justice Department will not take jurisdiction; and if
they do not, there is the possibility that we will reopen the Bell
case on the basis of that policy and bring the issue forthrightly to
the court.

That is one strong possibility. There are a couple of other situa-
tions that will provide a similar test.

Mr. CoNYERS. That was a very important case that the NAACP
brought in 1975. I am glad that reconsideration is going on, but
now since you have not met with the Attorney General, it would
seem to me that this would be a very propitious moment to meet
with the President of the United States. I believe in starting at the
top rather than at the bottom, because there are a lot of people to
go through at the bottom.

I notice that in Government bureaucracy, when the word comes
down, it is enthusiastically enforced, as opposed to when the word
goes up and it is silently rejected.

Getting back to the meeting in which you met with spokesper-
sons at the Department of Justice, it would seem that under these
circumstances, especially if you are reconsidering a lawsuit against
the Department of Justice, that the President of the United States
ought to have an opportunity to know what he is going to be get-
ting into as a result of the actions of the persons you met with.

I assume they are all still there, but they were perhaps only in
"acting" capacities since the titles haven't been firmed up over
there yet.

Mr. Hairston. Well, attending that meeting was Daniel Rinzel,
who has been the chief of the criminal section for about 2 or 3
years.

As far as a meeting with the President, I am not quite sure what
Dr. Hook's schedule or intent is. There has been one contact with
the President, and that was very early on. I do not believe that
these specific issues were discussed.

Mr. CoNYERS. Well, that is the point.

Mr. Hairston. I will certainly carry that message back. i

Mr. CoNYERS. Well, I don't want to tell you how to operate this, |
but there is a defense that could be raised by the administration if '
and when you go back into court saying, well, why didn't somebody
tell us about this. You can say, well, we did. We were at a subcom-
mittee hearing in June 1981 and we told the Criminal Justice Sub-
committee what we were going to do. We thought you heard about
it.

It seems to me that if you want to stop the racially motivated |
violence, the President of the United States is the person more able
to direct how that is going to be handled in his administration than
any other person. Especially, if the Attorney General wasn't there,
goodness knows what he was told about the meeting. It is conceiv-
able the President doesn't even know you met.

Mr. Hairston. Oh, I agree. It wasn't very much of a meeting. It ,
was clearly just an accommodation which is probably quite indica-
tive of the attitude of the administration.

119

I think the amount of racially motivated violence is before the
President— before the Attorney General, certainly. If nothing more,
the Atlanta situation has insured that. There has been some action
in that regard.

Mr. CoNYERS. But there haven't been any results. Sending down
a million bucks isn't any Federal solution to the problem. Wouldn't
you agree?

Mr. Hairston. I do, but when you say there haven't been any re-
sults, this is one of the attitudes we encountered during the course
of litigating this case and recently. Unless the Justice Department
feels that they are going to get a conviction, they won't even go for-
ward. Unless they are going to get some results, they won't even go
forward.

In the Atlanta case, they did make moves, but I think that is a
very unique situation. It has been thrown into the kettle of racially
motivated violence, but it is clear that no one knows what type of
situation it is. It may or may not be. It is, however, violence com-
mitted on the persons of blacks in a very spectacular way.

I think that caught the administration's eye. The media scream
and, of course, the grassroots agitation about it all contribute to
some movement in that respect.

I think one of the fears latent in the judiciary and the Justice
Department is that if you get into dealing with racially motivated
violence per se and not dealing with it as a secondary matter to
some other abridgement of civil rights, that you take over the func-
tion of, or impinge on, the function of the State and local law en-
forcement agencies. And that almost any killing of a black person
by a white person may be termed or approached as a racial one.
That, I believe, provides certain built-in inhibitions, trying to
maintain the proper relations between the Federal Government
and the States. I encounter this as a trial attorney and an appel-
late attorney all the time.

I think that to overcome this, there should be some express legis-
lation narrowly drawn or drawn in a fashion that will eliminate
that fear and make the boundaries clear, but there should be cer-
tainly some type of legislation that will cure the defects, the gaps
you have in 241, 242, and 245 because clearly there is a form of
racial violence that has nothing to do with trying to keep anyone
from exercising a specific right, and that is just as deadly, of
course, and probably in the long run much more demeaning and
much more debasing and much more of an indicator of slavery
than any other type of violence.

Mr. CoNYERS. Well, how do you handle that question when it is
raised?

Mr. Hairston. What we tried to do was sue the Justice Depart-
ment and make them handle it.
Mr. Chairman, it is still a matter for the Federal Government,

for the Justice Department. I think they should be given

Mr. Conyers. But they are the ones arguing to you that they
can't do it because they can't tell every time a black person gets
killed whether it is a civil rights case or not. So how do we handle
that?

120

Mr. Hairston. I think if legislation is clear enough, express
enough, and mandatory that they must act, they must investigate,
and take appropriate action.

I think the present legislation probably provides a great deal
more discretion or judgment — ^judgmental discretion in terms of
the elements, whether there is jurisdiction, than need be.

Mr. CoNYERS. Well, my friend, don't the facts and circumstances
of each case give you some indication of whether there is a possibil-
ity of it being a protection guaranteed under the Constitution that
is being violated?

Mr. Hairston. Oh, yes.

Mr. CoNYERS. We can't begin with the assumption that since the
man didn't have on a hood that said KKK on it that it is not ra-
cially motivated. Remember the first press releases in the Vernon
Jordan case?

The first thing they said was that there was no civil rights viola-
tion or racial motivation involved. They didn't even know who it
was. Since they are not even prosecuting cases where there is a
State action unless there is an investigation conducted, there's no
way of ever separating anything out.

They are not — in many instances — not prosecuting for any
reason whatever, which was the basis of part of your complaint; is
that not correct?

Mr. Hairston. That is correct. I believe under the present law
there is that obligation on the part of the Justice Department to
conduct an FBI investigation or have its investigatory arm make
the investigation.

Mr. CoNYERS. Of course.

Mr. Hairston. To determine whether there is jurisdiction. That,
of course, is a matter of policy, a matter of will, of someone saying
here is the situation, go in and look at it.

The problem is that the agency, the Justice Department, lacks
the will, has policies or at least did have policies that reinforce this
inaction or justified it in some way; and the resort to the present
interpretation of the statute is again a similar type of answer.

What I am saying is that the — perhaps the present statutes allow
too much discretion although if I were a prosecutor I would cer-
tainly attempt to use 245 to reach any private act of racially moti-
vated violence.

Mr. CoNYERS. Well, if section 245 covers it, why do we need more
law?

Think along with me now. We are arguing that Kinoy is right,
but the Congress — and you know the Congress as well as anybody
in this room — we couldn't psiss another civil rights law if you were
the chairman of this committee.

So how in God's name can we come here recommending some
more civil rights law? We are not adequately interpreting that
which is already on the books.

What I am saying to you is that we are going to have to decide or
redecide, and you are not Thomas Atkins, but we are going to have
to decide whether section 245 is adequate or it isn't adequate.

Now, if it is a matter of will, we can write all the laws we want
and you still come up against inadequate will, even with good laws
on the books

121

Mr. Hairston. The prosecutorial function is fairly mandatory in
many respects, but there is that large area called discretion.

Mr. CoNYERS. I know you don't mean that, counsel. Prosecutorial
function is mandatory? Do you know how many — let me ask you
this and I am sure your organization can get the details on this, if
you don't have them with you:

Do you know how many suits have been brought under sections
241, 242, and 245 in the history of the United States of America?

Mr. Hairston. Not a great many.

Mr. CoNYERS. Not a great many, no. I would suggest that once
you begin that inquiry, it will become very clear that there is noth-
ing mandatory about prosecutorial function, not only of civil rights
law, but of any law.

My view of the criminal law system in America is that we selec-
tively enforce laws. We pinch somebody every now and then in
antitrust, in civil rights enforcement, and in the bulk of everyday
State criminal prosecutions as well.

I mean the majority of America would be behind bars if we en-
forced every law and prosecuted every person.

I don't even think we lawyers would want that kind of a climate
to obtain in the United States.

I Mr. Hairston. No, Mr. Chairman, I don't think that.
I Obviously my statement allows that inference, but what I intend-
ed to say was that when — the prosecutor has very little discretion
where there is a crime committed. Whether the person has the ju-
risdiction or there are other elements of discretion that can be ex-
jercised, that is another question.

I We have here a jurisdictional problem. If that is clear, the pros-
ecutor has to go in and bring the case if there is a crime commit-
ted. That is all I am saying.

I Not that every crime is prosecuted.
' That is a concern. Obviously we are talking about the gaps; we
are talking about the inadequacies of laws that were written — that
evolved, with judicial interpretation over a hundred years or so.

Mr. CoNYERS. Well, I don't know. I wasn't going to ask you any
more questions, but we have just had a witness, maybe two, that
tiave suggested that the laws were in some state of perfection.

We have a question — and I would like you to reflect on it with
>^our general counsel — about whether or not the 13th amendment
s self-executing.

Mr. Hairston. I listened to that. There is no problem, the courts
lave said, with the 13th amendment rights being protected or in-
i ;luded in 241.

' The question is whether or not one of the rights granted under
he 13th amendment, was the right to life.

Is that a right that the Constitution protects?

Mr. CoNYERS. Yes. That is an interesting question.

Mr. Hairston. That is it in a nutshell.

Mr. CoNYERS. Now, what is the answer?

Mr. Hairston. The answer has to be, I suppose, provided by the
ndiciary.

Mr. CoNYERS. You mean you have to suspend judgment until the
^' iupreme Court speaks out on it?

122

Mr. Hairston. No. I won't suspend judgment, but the judgment
that matters is not mine so much. I intend to put forth my posi-
tion, as I said, in the suit that is contemplated; but what I am
saying is that until the Supreme Court is faced squarely with that
issue, then we are going to debate the question, as we are doing
now, ad infinitum.

Mr. CoNYERS. Well, my friend, the Supreme Court's judgment is
going to derive from what the NAACP and its millions of members
happen to think the answer ought to be.

Mr. Hairston. Well, we are going to try to get them there, sir.

Mr. CoNYERS. I am glad to hear that. I happen to be a member
of — one of the people in your organization and I happen to have a
fairly decided view on this position, on this question.

I would like you to follow these proceedings for the organization
so that they may fully act upon the recommendations and ideas
that will come forward here. We are very grateful that you and
Mr. Atkins could join us here in this testimony today. We think
that it is quite important and we appreciate the positions that you
have expressed.

Mr. Hairston. Thank you.

Mr. CoNYERS. You are welcome.

[The prepared statement of Mr. Hairston follows:]

123

STATEMENT OF THE
NATIONAL ASSOCIATION FOR THE ADVACEMENT
OF COLORED PEOPLE (NAACP)
PRESENTED TO THE SUBCOMMITTEE ON CRIMINAL JUSTICE
HOUSE JUDICIARY COMMITTEE

Submitted June 3, 1981

THOMAS I. ATKINS

General Counsel
GEORGE E. HAIRSTON

Asst. General Counsel
NAACP Legal Department
1790 Broadway - Tenth Fl .
New York, New York 10019

124

My name is Thomas I. Atkins. I am the General Counsel I

of the National Association for the Advancement of Colored |

i
People. I

I appreciate your invitation to testify before this j

Committee on racially motivated violence. The problem is a central
concern of the NAACP . These hearings are timely and highly rele- I
vant to blacks and other minorities in this country. An inquiry
into the apparent increase in racially motivated violence against
blacks and other minorities is an appropriate congressional response
The increase in the number and size of Klan, Nazi and other
extremist organizations throughout the country, along with a pro-
liferation of nakedly brutal murders and shootings of blacks clearly
call for affirmative action by the federal government, as well as
state and local governments.

These hearings are extremely important. They should be
extended to the various regions around the country. As indicated
before, the increase in racially motivated violence is apparent
only. The actual level of racially motivated violence and inti-
midation has always been high. Only in the past two years have
spectacular shootings, and incidents of brutality focused atten-
tion on the problem. Regional hearings would certainly document
this fact.

Although under our federal constitutional system, the
States are primarily responsible for maintaining public order
and protecting the citizenry, historically, an exception has had

125

to be made in the case of racial violence. Violence directed
at the ex-salves and their progeny has been a specific concern
of the federal government since 1866.

The struggle of blacks towards full citizenship and
equality of opportunity has been permeated with blood and vio-
lence. Blacks gained nominal citizenship in this country only
after the bloodiest domestic conflict it has ever known — the
civil war. Thereafter, the forces of racism, racial prejudice
and white supermacy resorted to violence as a means to gut and
eviscerate the franchise granted the ex-slaves. Indeed, one of
the prime reasons for the formation of the NAACP 70 years ago
was to combat an epidemic of lynching, race riots, and open
physical intimidation of black people.

The wave of calculated violence against blacks in the
aftermath of the civil war and emancipation is a well-know but
sordid chapter in this nation's history. The reconstruction
Congress, faced with a crisis of protecting the new citizens,
fashioned the 13th, 14th and 15th Amendments to the Constitution
and enacted civil rights statutes, 42 USC 1981 thru 1989, and
backed them with federal troops in the old slave states of the
confederacy. In a few years, however, as seems to be the pattern,
the federal concern about racial violence abated. The troops
were withdrawn and the civil rights statutes were put away, not
to be revivied until almost a century later.

Violence against blacks continued unabated, however. With
the federal government no longer enforcing the law, the erection

11-647 0-83

126

of legal systems of segregation in southern and border states,
and the enforcement of racial customs originating in slavery,
an atmosphere condoning racial violence was fostered. Indeed,
violence against blacks was used to deny them, by intimidation
and threat, the vote, jobs and the ordinary human dignity enjoy-
ed by the majority in this country. It was during this period
— between the world wars -- that the NAACP devoted most of its
efforts to obtaining anti-lynching legislation.

The 1960 's, with the great civil rights movement, saw an

increased federal role in establishing and protecting the civil j

i
rights of blacks and minorities. Part of that effort was the :

revitalization and extension of civil rights statutes -- civil '

and criminal — in order to cope with the violence related to the i

assertion and exercise of civil rights by blacks. But the federal i

thrust was limited in both duration and scope, being concerned

primarily with upholding the integrity of federal court orders and ,

i
legislation. [

The right of blacks to be safe and secure in their persons

and to be free of racially motivated violence is still not wholly

recognized or realized. Although this committee is quite aware

from prior testimony and its own investigations of the killings

in Buffalo, New York, New York City, Salt Lake City, the lynching

in Mobile, and the attempted assassination of Vernon Jordan, the

NAACP Legal department and branches throughout the country receive

daily reports of violence committed against blacks. Much of it '

is official -- perpetrated by law enforcement officials themselves.

127

In many cases it is conspiratorial violence, usually associated
with the Ku Klux Klan or "night riders". In one sense, these are
almost traditional, routine forms of violence committed against
blacks and minorities. But recently, it seems that random,
pathological violence has become a pattern as well.

The NAACP has sought to use its limited legal and volunteer
resources to deal with the problem. Our branches in several States
have offered and supported anti-Klan and anti-violence Legislation
— in California, New York, Alabama, North Carolina, and Georgia.
We have instructed our branches to cooperate in a "Klan Watch" in
order to monitor the growing activity of Klan and fascist groups.
We have brought suit, along with the Center for Constitutional
Rights, in Chattanooga, Tenn., against the local Klan group there.
The NAACP for several years has been fighting Klan activities in
the armed forces — notably Naval and Marine bases in California
and Puerto Rico. And routinely we file civil actions in cases of
police brutality and misconduct.

We recognize, however, that dealing with the problem of
violence in our society is primarily the role of state and local
law enforcement agencies. Unfortunately, those agencies have
many times been the problem. The illegal and abusive use of
force against blacks and minorities by law enforcement agents is
endemic. State laws governing the use of force by officers of
the law practically allow executions on the spot. And time and
again, we see grand juries and trial juries allowing accused
officials to escape the sanctions of the Law.

128

This historical failure on the part of the states

necessitated the civil rights laws enacted in 1866 and the j

1960's. Because of the continued high level of racial |

violence, federal action is still required. However, !

the federal agency responsible for enforcing laws against I

racial violence — the Justice Department -- has historic-
ally, and as a matter of policy, been reluctant to act.

In 1975, the NAACP sued the Attorney General of the
United States because that office had, since 1959, followed
a policy of not prosecuting individuals "where there has
already been a state prosecution of that individual for
substantially the same act or acts." In 1977, former
Attorney General Griffin Bell, explicitly changed that
policy to one whereby the Justice Department would pursue
separate federal prosecutions where there is a violation
of the civil rights law. Subsequently the NAACP agreed to
a dismissal of its suit, but without prejudice to re-
institute it in the event the government failed to follow the
new policy. *

Under that policy, the former administration did be-
come more active in investigating and prosecuting persons
for engaging in racial violence during the last two years.

Yet, it has been apparent from testimony before this
committee that even under the new policy, the Civil Rights
Division .of the Justice Department follows a restrictive policy with

*See: NAACP v. Bell 76 F.R.D. 134 (D.D.C. 1977)

129

regard to such prosecutions. Former Assistant Attorney
General Drew Days stated during the last session that the
federal government under the civil rights criminal statutes
— 18 use, sections 241, 242, and 245 — lacked jurisdiction
to prosecute cases of racial violence, unless the victim
was engaged in a federally protected activity. Merely being
physically attacked or harmed because of one's race or
minority status is not enough. This view was recently re-
iterated by Daniel Rinzel, head of the Criminal section of
the Civil Rights Division in a meeting in May, 1981.

It should be pointed out that such an interpretation
has not been issued by any federal court and therefore the
view is more nearly "policy" than a judicial or legislative
restriction .

The NAACP of course does not accept such an inter-
pretation of the Justice Department's Jurisdiction in matters
of racial violence. Professor Arthur Kinoy has argued per-
suasively to this committee the opposing view. And the NAACP
agrees with Professor Kinoy that under the present civil
rights legislation, the federal government has ample authority
to reach any act of violence that racially motivated. If there
are questions, the boundaries of Justice Department jurisdic-
tion in such matters should not be self-imposed, but judicially
determined.

■ The present legislation, however, does appear deficient
in one respect. Under § 241, there must be more than one
actor -- concerted activity by one or more persons -- in order
to satisfy federal criminal jurisdiction prerequisites. That is

130

an express requirement. The statute does not reach the
individual act of racially motivated violence which seems
to be in vogue today. While one may argue that section 245
does not suffer from this defect and reaches individual
acts of violence, an amendment of Section 241 to include
individual acts would clarify the point.

Legislative action specifically addressing the issue
of racially motivated violence is desirable since it
signals to all the serious intent of the federal government
to prosecute the perpetrators of such violence. Inaction
and silence creates an atmosphere of tolerance and spurs
on those who would vent their racial hatred through murder,
cross burnings, and other forms of intimidation and violence.

Most importantly, however, the new administration
must make clear to all that it does not condone, nor will
it tolerate the present level of violence committed against
minorities. It can begin to send this message by acting on
the several investigations now under consideration in the
Civil Rights Division of the Justice Department. A clarion
call would be the immediate appointment, as chief of the
Civil Rights Division, of someone who is sensitive to the
issue and is forthright in action. A special task force
should be created within the Civil Rights Division to deal
solely with racial violence by means of criminal prosecu-
tions and civil injunctions. Nothing less than an unambigu-
ous commitment to prosecute the murderers, to stop the cross
burnings and bombings, and to close the paramilitary camps
will curtail the present trend.

131

violence in this country is now perhaps, so mundane,
so empty of impact that racially motivated violence cannot
stir the country any longer. Perhaps, the fact that one
can still be killed, or abused, or put in fear of one's life
simply because of one's color is not enough to require
action. Certainly it seems that only the spectacular
focuses our attention. But racially motivated violence is
still a badge of slavery, for there can certainly be no
liberty or freedom, without life.

132

TESTIMONY OF VICTOR GOODE, ESQ., EXECUTIVE DIRECTOR,
NATIONAL CONFERENCE OF BLACK LAWYERS

Mr. CoNYERS. Our next witness is Victor M. Goode, Esq., execu-
tive director of the National Conference of Black Lawyers.

Mr. Goode. Thank you, Mr. Chairman.

Mr. CoNYERS. Mr. Goode has been active in a number of activi-
ties. I believe he has testified before me, if not the subcommittee,
before.

We have your prepared statement. We welcome you for any fur-
ther discussions.

Mr. Goode. Thank you, Mr. Chairman.

Over the last few years in this country we have witnessed an
alarming rise in racially motivated violence. It is difficult at this
time for any of us to determine the number of such incidents since
very little research has been done and that which is underway is
not yet complete.

Nevertheless, I think the scattered reports indicate two very
clear, and in our judgment related trends.

The first is the rise of organized racially motivated violence per-
petrated by such groups as the Ku Klux Klan and the various Nazi
parties.

The second is the rise of random acts of racially motivated vio-
lence.

By racially motivated violence, we mean acts where racism or
racial prejudice appear to be the primary motivating factor behind
the perpetrator's actions.

Obviously in the absence of compelling evidence or outright con-
fessions, one is forced to ask how can racial motivation be distin-
guished from any other reason for committing a crime?

From the incidents that we have examined, certain characteris-
tics stand out that lead, in our judgment, to the conclusion that
there is a rapidly growing number of violent acts perpetrated by
whites against blacks that are racially motivated.

With the organized racist groups such as the Klan and Nazis,
there is a long history of racial violence.

I will not attempt to recount that history before the committee
today.

I am sure that others who have testified have outlined in detail
the racist ideology and actions of both of these groups.

The second trend, however, of individual acts of racially motivat-
ed violence is often overlooked, receives little publicity and no na-
tional attention. ;

These acts in many, if not most, incidents involve persons who
neither know one another, nor have had any prior contact. I

In none of the reported incidents does it appear that theft, rob-
bery or any property expropriation was a motive.

In incidents where the victim survived or where there were wit- ■
nesses, racial epithets accompanied many of the assaults, batteries, i
or arsons.

Several reported incidents involved black victims who had re- 1
cently moved into predominantly white neighborhoods.

Last, several reported incidents involved interracial social con-
tact. I

133

The inescapable conclusion from even these incomplete reports is
that racism is the motivating factor behind an increasing number
of random attacks against black people.

Several examples may help illustrate this pattern. I will not go
through the entire list of examples that I have here.

I think I want to point out some of the characteristics of these
examples.

First, they occur both North and South. They are not endemic to
any one region in the country. They have occurred in rural areas
of the deep South and urban areas of the North; areas we might
think of as being liberal and certainly areas that have had the
more increased participation of blacks in the social, economic, and
political life of that region.

Second, they seem to be perpetrated very randomly not against
any particular type of individual in a community. In some cases
they have been directed against youth; in others, young black
males; and in others, black females, so there is no clear pattern of
any single element within the black community that is being sin-
gled out.

One particular incident we have listed here I think underscores
one of the problems that we are faced with.

That incident occurred in Mobile, Ala., in March 1981. Michael
Donald, a 19-year-old, a black man, was beaten and lynched in
Mobile and currently three white males have been charged with
that murder.

When this incident first occurred, the national press simply re-
ported it as a death by strangulation. In this case, the local police
and the local coroner drew a rather fine and in our judgment a
very disingenious distinction between death by strangulation and
lynching.

Lynching, of course, has a certain historical significance to black
people in this country and is a certain particular act of terrorism
that has been visited against our community since the days of slav-
ery.

However, local authorities refused to accept the fact that young
Michael Donald had been lynched and instead argued that since
the death had occurred by strangulation with a rope prior to Mr.
Donald being hoisted to the limb of a tree, that he had, in fact, died
by strangulation and not by lynching.

These kinds of fine and false distinctions obscure the racial moti-
vation behind such acts and such crimes and by obscuring it, pre-
vent us, both on a local or national level, from seeing the scope and
depth of this problem and fashioning adequate remedies to resolve
it.

Last, one of the list of incidents that we received from the Suf-
folk County Human Rights Commission involved a rather lengthy
series of house burnings and attacks against blacks who were
moving into a previously all-white neighborhood. Records going
back to 1977 and coming up right through 1979 show a clear pat-
tern of attacks against blacks merely for the act of moving into a
predominantly white neighborhood.

Despite this growing trend and alarming pattern, there is no co-
ordinated effort on the local level to prevent these acts from con-
tinuing.

134

Local police departments and local prosecutors tend to look atj
these acts as crimes, not racially motivated crimes. {

They tend to become routine prosecutions with no special effort
devoted to the issue of their racial motivation. In failing to recog-}
nize this pattern a properly directed deterrent aspect of criminal I
prosecution is lost.

Indeed, the need for the deterrence of racially motivated violence
is as great, if not greater, than the actual punishment meted out.

We know that the concept of deterrence can often appear to be a
very high level abstraction. '

In order for it to have any functional value we must begin by un-j
derstanding that it is not a concept that describes a simple entity.}
"Deterrence involves a complex of notions. It is sometimes de-l
scribed as having two aspects: After the fact inhibition of thei
person being punished or special deterrence and inhibiting in ad-|
vance by threat or example, a general deterrence."

The history of Federal civil rights intervention over the last 15 i
years gives us ample evidence of the value of the Federal sanction ;
in deterring the widespread violation of the civil rights of blacks.
This system of general deterrence which is by no means perfect,:
nevertheless is properly credited with speeding the dismantling of
the apartheid-like system of "Jim Crow" in the Deep South. ; I

It is clear that without the threat of Federal action and the im-||
plementation of Federal relief or sanction that many State andjj
local authorities would not have observed or protected the constitu-jt
tional and statutory rights of black citizens.

Some may doubt the value of deterrence and point to recidivism i
in the criminal sphere as evidence to support their doubt. It is true
that criminal recidivism may cause us to reexamine special deter-
rence, however, this should not be confused with the effects and
value of general deterrence.

It is not our view that invoking Federal jurisdiction to cover acts
of racially motivated violence is an attempt to usurp or duplicate
the criminal sanctions responsibility of the States.

We are not talking about assaults, batteries or other crimes in
the abstract.

We are instead concentrating on a special category of offenses
whose mens rea is racism, prejudice or race hatred.

In concentrating on the mental state or motivation of the perpe-
trator, we are not moving into the realm of human rights commis-
sions or psychologists.

Racially motivated acts of violence do not invoke a sense of spe-
cialized treatment for the perpetrator. Instead, this growing, alarm-
ing pattern challenges us to come up with an analytical framework
that enables us to analyze in an orderly way whether, according to
a given set of legal definitions a crime of racial violence has been
committed.

This ability to distinguish racial violence from other modes of
violence would not be as difficult as some critics might suspect.

The positive approach to determining mens rea has already been
employed by a number of States that have revised their penal
codes from the recommendations of the American Law Institutes
model penal code.

135

They identified four grades of mental elements, purpose, knowl-
edge, recklessness, and negligence.

They link these to four material elements, actual conduct, sur-
rounding circumstances, and the results of conduct.

With this model members of the Justice Department could easily
develop standards that distinguish any altercation that might in-
volve members of a different race from those incidents in which
the purpose, knowledge, and so forth, was racially motivated and
linked to one of the material elements of the crime.

We are living at a historical moment in which the value of ra-
cially motivated violence must be challenged as antisocial behavior
by the application of the Federal criminal sanction.

It is not simply the threat of punishment or its actual imposition
that is at issue here. Local courts in most instances lack the re-
sources to speak clearly and forcefully to the increasing acts of
racial violence. Even where local efforts are commendable, they
lack the capacity to reflect these acts as a national problem or offer
a national remedy.

I might add here in practically all local jurisdictions, prosecutors
are elected and, of course, despite their oath to uphold the law
fairly and impartially, they are subjected to the political pressures
of a given locale.

We know this to be true, of course, in criminal prosecutions
where a change of venue is often sought, sometimes by prosecutors,
most often by defense.

So the conditions of a local locale, the political conditions, that is,
may very well have a determinative bearing on whether or not
prosecutions take place, and certainly a bearing on the quality and
vigor of those prosecutions.

The entire Federal criminal process stands as a paradigm of na-
tional values and their reinforcement is often far more subtle than
the mere number of cases prosecuted in a given area.

What is at stake here is not simply the constitutional rights of
black people, but the fragile identification of the majority with a
value system that has for only a single generation recognized equal
citizen status for those other than white Americans.

That recognition has not yet gained full acceptance into the insti-
tutional life of this country and is seriously being challenged by
the spread of racial violence.

There is a heavy symbolic significance to the operation of the
criminal sanction. The authority and responsibility for the Justice
Department to begin prosecutions for acts of racial violence is
grounded in current constitutional doctrine.

In that regard we fully endorse the comments made earlier by
Prof. Denise Carty-Bennia. We feel the Constitution provides a
foundation for the prosecution of acts of racial violence.

It is unnecessary for me to recount or to quote at this point sec-
tions of cases that may illustrate that point. We think that they
were made forcefully and effectively by early testimony.

Since the 13th amendment abolishes slavery and the objective
conditions that constituted its badges and incidents, then evoking
Federal jurisdiction under the 13th amendment requires only proof
that factual conditions exist analogous to those conditions that
were produced by the law and custom of slavery.

136

If blacks were to have personal freedom without distinction could
this mean any less than the right to be free from racial violence?
We think not.

Furthermore, the increasing number of random acts of racial vio-
lence recalls those days following the Civil War when, despite the
Emancipation Proclamation, Dred Scott was still the law of the
land. We are today at a faithful crossroad of history.

We can ignore the rising tide of racism in this country or we can
resolve that this negative side of our history will not repeat itself.

Today we have a firm constitutional basis for evoking Federal
criminal sanctions for acts of racial violence. We have 15 years of
Federal civil rights enforcement experience behind us.

We know that private civil remedies are unwieldy and unworka-
ble. The private bar does not have the resource incentive to bring
such cases since there is no evidence that judgments could be ex-
ecuted.

Mr. CoNYERS. What do you mean by that?

Mr. GooDE. We do not think the private bar has the economic I
motivation to bring such cases. We know in many cases, cases of i
this type are only brought where there is a real chance of receiving I
monetary compensation.

An individual who was indigent and committed an act of racial
violence against a black person may have a theoretical case j
brought against him under civil statutes, but there would be no i
possibility for the victim and certainly the victim's attorney recov- j
ering in that case.

It is our considered opinion that the Justice Department and the j
Nation is facing a crisis of unknown proportions. j

A recent report by the Ford Foundation determined that in \
Miami disturbances blacks were already resorting to retaliatory
violence as a result of the failure of local and State officials to stem
the tide of individual and institutional racial violence against the
black community.

We hope the appointment for the civil rights slot within the Jus-
tice Department will, in fact yield an individual that has that type !
of sensitivity and a special understanding of the breadth and sig-
nificance of this problem. We can think of few other positions that '
remain to be filled in this administration where the quality of the '\
individual will in such a large measure determine both the policy
and the type of actions taken by that Department. ;

Mr. CoNYERS. Thank you very much, counsel. ,

What I have heard you articulate is a new and separate dimen- ;
sion to this problem; namely, that there is a program of creating ;
the environment to discourage racially motivated acts of violence. I
understand you to say that that could be as important, or maybe
even more important than prosecutorial discretion, do I not?

Mr. GooDE. That is correct, Mr. Chairman. j

We believe today in this country there is no single national voice '.
of concern on this issue and that there is no effort being taken by
Federal authority to speak to the Nation about the dimensions of;
this problem and to inform the Nation, both black and white citi-
zens alike, that racially motivated violence will not be tolerated as
a condition in this country. !

137

We think that local conditions will yield varied results, and cer-
tainly in most cases inadequate results, because of the kind of local
pressures against prosecutors and local politicians, but we think
what we have before us is clearly a national problem and in that
regard it is certainly necessary that we have some sort of national
response.

Mr. CoNYERS. Well, it is important that we are here then in the
Nation's Capital with the national director of the National Confer-
ence of Black Lawyers dealing with a national problem.

I would like to make this suggestion: Perhaps the beginnings of
such a program could be outlined by the Conference, and perhaps
the Congressional Black Caucus and other organizations would
want to join in fleshing it out.

I think it has merit. It also seems important that this message be
carried far beyond these Halls to the President. I am not one of
those who talks about how little power the Chief Executive has in
this country. I am still awed by how much he still retains, and I
think that a program that could evolve that would have a very im-
portant impact on these questions that bring us here today, if not
to solve them, then to move a lot of people toward a higher degree
of consciousness than they already have.

So I commend you for your work and your presentation here
today.

Were there, Mr. Goode, any other comments made by our three
previous witnesses that you feel it important to underscore or that
you would want to take a modest exception to?

Mr. Goode. I think really I only want to underscore once again
the importance of utilizing the 13th amendment as the fundamen-
tal basis for these actions. We have heard time and time again
from Justice Department officials of their inability to move for-
ward in acts of racially motivated violence where crimes have
clearly been committed because of an absence of Federal jurisdic-
tion.

We think that this excessively narrow and unwarrantedly
narrow approach to existing law and statute has unnecessarily tied
the hands of one of the most important enforcement bodies that
the Nation has at its disposal, so again we would only urge that
groups all around the country, as you suggested, urge the President
of the United States to appoint someone to the Justice Department
who has the kind of sensitivity and understanding of these issues
to sort of unshackle the Department so that they might move for-
ward on this question.

We will certainly take your suggestion and work diligently with
our chapters and the organizations that we associate with to bring
this message home. I agree with you, it is difficult sometimes for
the word to move upward as fast as it might move downward, but
we also view it as necessary that it move upward and that it stir
among the masses of our people, so that political leaders in all de-
partments, State and Federal, begin to hear a message from the
black community about just how important this issue is.

Mr. CoNYERS. Well, you require that I make a caveat. When I
said move upward, I meant in the bureaucratic morass. The con-
sciousness raising that has to go on is a never-ending job among
our citizens.

138

Are there any questions, gentlemen?

Thank you very much.

[The prepared statement of Mr. Goode follows:]

139

STATEMENT OF VICTOR M. GOODE, NATIONAL DIRECTOR OF THE
NATIONAL CONFERENCE OF BLACK LAWYERS. BEFORE THE SUB

COMMITTEE ON CRIMINAL JUSTICE OF THE HOUSE COMMITTEE ON THE JUDICIARY
SUBMITTED JUNE 1, 19 81

Mr. Chairman, Committee members, my name is Victor Goode
and I am here today representing the National Conference of
Black Lawyers. NCBL is an organization of activist Black
attorneys. V.'e are a membership organization with Chapters
and members in most states and cities where there are con-
centrations of Black lawyers. When our organization was
founded in 196 8, we dedicated ourselves to using the law
and the legal process to combat racism and discrimination
against all oppressed people. Over the last thirteen
years we have compiled a distinguished record of litigation,
legislative advocacy and public education around human rights
issues that were of special significance to the Black com-
munity.

Over the last few years in this country we have witnessed an
alarming rise in racially motivated violence. It is difficult
at this time to determine the number of such incidents since
little research has been done and that which is underway is

140

not yet complete. Nevertheless, scattered reports
indicate two clear and probably related trends.

The first is the rise of organized racially motivated
violence perpetrated by such groups as the Ku Klux Klan and
the various Nazi parties. The second is the rise of
random acts of racially motivated violence. By racially
motivated violence we mean acts where racism or racial
prejudice appear to be the primary motivating factor behind
the perpetrators actions. Obviously, in the absence of
compelling evidence or outright confessions one is forced
to ask how can racial motivation be distinguished from any
other reason for committing a crime?

From the incidents that we have examined certain character-
istics stand out that lead, in our judgement, to the conclu-
sion that there is a rapidly growing number of violent acts
perpetrated by whites against Blacks that are racially motivated.
With the organized racist groups such as the Klan and Nazis
there is a long history of racial violence. I will not attempt
to recount that history before the committee today. I am sure
that others who have testified have outlined in detail the
racist ideology and actions of both of these groups. The
second trend, however, of individual acts of racially
motivated violence is often overlooked, receives little

1. Dr. Elsie Scott of the Urban Institute and Jan Douglas,
Community Affairs Director, City of Atlanta both have
studies in progress.

141

publicity and no national attention.

These acts in many, if not most, incidents involve persons who
neither know one another, nor have had any prior contact.
In none of the reported incidents does it appear that theft,
robbery or any property expropriation was a motive. In
incidents where the victim survived or where there were
witnesses, racial epithets accompanied the assaults,
batteries or arsons. Several reported incidents involved
Black victims who had recently moved into predominately
white neighborhoods. Lastly, several reported incidents
involved inter-racial social contact. The inescapable
conclusion from even these incomplete reports is that
racism is the motivating factor behind an increasing number
of random attacks against Black people.

Several examples may help illustrate this pattern. The
following is taken from NEWSCAN - RMRV Around the Nation ,
April, 1981.

"The Assistant engineer in a Buffalo plant was grabbing lunch
at a Burger King when a man walked up to him and shot him in
the head. The two teen-aged boys in Cincinnati" were heading
to a store to buy sodas when they were gunned down. The two
Black youths in Salt Lake City were jogging with two white
girls through Liberty Park when the Boys (sic) were slain in

11-647 0-83-10

142

a sniper's ambush.

"They were among 24 Black Americans and two white women with
Black men who have been slain in a string of murders in
seven cities across the nation over the last 15 months."

-Hubert H. Denton, Washington Ppst
Repr. Atlanta Journal, Oct. 30, 1980

Charles Metheny , 18, of Webster Springs, West Virginia, was
charged with first degree arson in the October 2, 1980 fire
bombing of the home of a Black family in Manchester, Conn.
No one was seriously hurt in the bombing.

-Jet, November 13, 1980

"An 8 year old Black girl was shot in the back of the head
when two shots were fired into a Dallas city bus. Two other
people were injured by broken glass."

-Jet, November 13, 19 80

On Saturday night, November 29, 1980, 16 year old Jerome
Deframaletta was walking home, accompanied by a girl-friend,
when three white men in a car followed them down the street
shouting racial slurs. At the driveway to his house, the men
jumped out of their car and pummeled him to the ground.
Jerome's mother, notified by the terrified girl-friend, came
to her son's rescue with the help of a male friend. The
whites ran to their car (a fourth man had remained at the wheel)

143

and attempted to run over the friend, who had slipped on the

ground. Failing this, the men came back after the family

and their friends had gone inside and smashed all the front

windows. The police were called. When they left, the four

whites returned and smashed all the rear windows. The

Deframaletta's had recently moved into a formerly all-white

neighborhood .

-William R. Wood, Cleveland
Call and Post, December 6, 19 80

An off-duty white Cleveland policeman, Napolean Dismuke,

shot and killed Cornelius Anthony Brown in an argument over

a pool game. Dismuke fired four shots at Brown. After

police investigation, the case was bound over to the grand

jury.

-Cleveland Call and POst
December 6, 1980

Black students at Wesleyan University received an anonymous

letter containing obscene racial slurs, placed in the mail-box

at the Afro-American Studies Center this past fall.

-Lorenzo Middleton, Chronicle of
I Higher Education, January 12, 1980

i In September a brick was thrown through the dormitory window
of Black students at Cornell University. In October, ten

144

white students jostled and harassed a Black stu(3ent on

campus .

-Lorenzo Middleton, Chronicle of
Higher Education, January 12, 1980

Five white youths in a car attempted to run over three young

Black women at Rockaway Beach, New York. The car mounted the

sidewalk and chased the young women, its occupants hurling

racial slurs. The women managed to escape and flag down a

passing police car. The men, all aged 19, were arrested on

charges of attempted murder.

-New York Amsterdam News
March 21, 1981

In early December, 1980, a white man, Patrick Terry, 27, shot

and killed Lola Pennix, a 17 year old Black woman, in front of

a social club in Queens. Terry had fired several shots into

a group standing outside the Blue Water Club, wounding three.

-New York Amsterdam News
March 21, 1981

In October, 1980 a cross was burned in front of the Black
Student Center at Williams College.

-Reported directly to NCBL

The Afro-American Center at Harvard University has had KKK
slogans painted across its door during the fall term of 1980.

-Reported directly to NCBL

145

March, 1981, 19 year old Michael A. Donald, a Black man was

beaten and lynched in Mobile, Alabama. Three white males have

been charged with his murder.

-Racially Motivated Random Violence
April, 19 81

The dream of Thomas Mosely turned to ashes. Mr. Mosley, a
Black subway motorman from Brooklyn, had purchased a $64,000
home in Babylon on Long Island. Soon after the sale, a cross
was burned on the lawn. And then, before the Mosleys could
move in, the house was destroyed by fire. The Suffolk County
Human Rights Commission lists a number of similar incidents in
recent months:

-September 1977 - the home of a Black couple burned in Brook-
haven Township;

-December 1977 - a cross burned at the home oa a Black family
in Babylon;

-February 1978 - the home of a Black family burned in Hauppauge
village, rnd the residence of still another Black family fire-
bombed in Smithtown;

-March 1978 - the home of a Hispanic family in Islip vandalized,
garbage thrown on lawn and attempt made to start a fire;
-July 1978 - swastikas painted on the home of a Jewish family
and the house firebombed;

-September 1978 - the home of a young Black couple burned in
Brookhaven;

146

-January 1979 - the home of a Black family burned i" Lindenhurst.

-Suffolk County Human Rights
Commission

Despite this growing trend and alarming pattern there is no
co-ordinated effort on the local level to prevent these acts
from continuing. Local police departments and local
prosecutors tend to look at these acts as crimes, not racially
motivated crimes. They tend to become routine prosecutions
with no special effort devoted to the issue of their racial
motivation. In failing to recognize this pattern a properly
directed deterent aspect of criminal prosecution is lost.

Indeed, the need for the deterence of racially motivated
violence is as great if not greater than the actual punish-
ment metered out. We know that the concept of deterence can
often appear to be a very high level abstraction. In order
for it to have any functional value we must begin by under-
standing that it is not a concept that describes a simple
entity. "Deterence involves a complex of notions. It is
sometimes described as having two aspects: after the fact
inhibition of the person being punished or special deterence,
and inhibition in advance by threat or example, a general
deterence.

The history of federal civil rights intervention over the last

2. Packer, Herbert L. 1968. Limits of the Criminal Section
p. 39.

147

fifteen years gives us ample evidence of the value of the
federal sanction in deterring the widespeard violation of
the civil rights of Blacks. This system of general deterence
which is by no means perfect, nevertheless is properly credited
with speeding the dismantling of the apartheid like system
of "Jim Crow" in the deep south. It is clear that without the
threat of federal action and the implimentation of federal
relief or sanction that many state and local authorities would
not have observed or protected the Constitutional and statutory
rights of Black citizens.

Some may doubt the value of deterence and point to recidivism
in the criminal sphere as evidence to support their doubt. It
is true that criminal recidivism may cause us to re-examine
special deterence, however, this should not be confused with
the effects and value of general deterence.

It is not our view that invoking federal jurisdiction to cover
acts of racially motivated violence is an attempt to usurp or
duplicate the criminal sanctions responsibility of the states.
We are not talking about assaults, batteries or other crimes
in the abstract. We are instead, concentrating on a special
catagory of offenses whose mens rea is racism, prejudice or
race hatred.

In concentrating on the mental state or motivation of the

148

perpetrator we are not moving into the realm of human rights
commissions or psychologists. Racially motivated acts of
violence do not invoke a sense of specialized treatment for
the perpetrator. Instead, this growing, alarming pattern
challenges us to come up with an analytical framework that
enables us to analyze in an orderly way whether, according to
a given set of legal definitions a crime of racial violence
has been committed.

This ability to distinguish racial violence from other modes
of violence would not be as difficult as some critics might
suspect. The positive approach to determining mens rea has
already been employed by a number of states that have revised
their penal codes from the recommendations of the American
Law Institutes Model Penal Code. They identified four grades
of mental elements - purpose, knowledge, recklessness and
negligence. They link these to four material elements,
actual conduct, surrounding circumstances and result of
conduct. With this model members of the Justice Department
could easily develop standards that distinguish any altercation
that might involve members of a different race from those
incidents in which the purpose, knowledge, etc. was racially
motivated and linked to one of the material elements of the
crime.

149

We are living at a historical moment in which the value of
racially motivated violence must be challenged as anti social
behavior by the application of the federal criminal sanction.
It is not simply the threat of punishment or its actual
imposition that is at issue here. Local courts in most instances
lack the resources to speak clearly and forcefully to the
increasing acts of racial violence. Even where local efforts
are commendable, they lack the capacity to reflect these acts
as a national problem or offer a national remedy. The entire
federal criminal process stands as a paradigm of national
values and their reinforcement is often far more subtle than
the mere number of cases prosecuted in a given area. What is
at stake here is not simply the Constitutional rights of Black
people, but the fragile identification of the majority with a
value system that has for only a single generation recognized
equal citizen status for those other than white Americans. That
recognition has not yet gained full acceptance into the institu-
tional life of this country and is seriously being challenged
by the spread of racial violence.

There is a heavy symbolic significance to the operation of the
Criminal Sanction. The authority and responsibility for the
Justice Department to begin prosecutions for acts of racial
violence is grounded in current consitutional doctrine..

150

The framers of the Thirteenth Amendment clearly intended

the Amendment to do more than simply abolish slavery as a

legal condition. In the Civil Rights cases, the majority of

the Court clearly interpreted the Amendment to be used "for

the obliteration and prevention of slavery with all its

badges and incidents", Civil Rights Cases, 108 U.S. 3, (1883) 20,

James Harlan of Iowa, one of the key archetects of the
Thirteenth Amendment unumerated many of the types of freedoms
previously denied Blacks by both the law and custom of
slavery. They included property rights, access to the courts,
speaking and writing freely. However, these enumerated free-
doms did not; and do not, describe the full scope of the
Amendment. Thus, the Thirteenth Amendment bestows upon Blacks
the right of "personal freedom without distinction" or limi-
tation by race.

We see the broad scope of this intent from analysis of the

Congressional debate.

The Congressional debates repeated what the
history of abolitionism had already... made
abundantly clear. The free colored person
(in the) South and North... was only less
degrac^ed, spurned and restricted than his
enslaved fellow. His slavery as well as
that of the 'hopeless landsman' was to be,.,
abolished by the Thirteenth Amendment.

3. Belz, A New Birth of Freedom: The Republican Party and
Freedmans Rights 1861-1866. Greenwood Press 1976 at 118-19.

4. Ten Broeck , The Thirteenth Amendment to the United States
Constitution, 39 California Law Review 171, 180 (1951)

151

since the Thirteenth Amendment abolishes slavery and the
objective conditions that constituted its badges and incidents,
then evoking federal jurisdiction under the Thirteenth Amendment
requires only proof that factual conditions exist analoguous
to those conditions that were produced by the law and custom
of slavery. If Blacks were to have personal freedom without
distinction could this mean any less than the right to be free
from racial violence? We think not.

Furthermore, the increasing number of random acts of racial
violence recalls those days following the Civil War when
despite the Emancipation Proclamation; Dredd Scott was still
the law of the land. We are today at a faithfull crossroad
of history. We can ignore the rising tide of racism in
this country or we can resolve that this negative side of our
history will not repeat itself. Today we have a firm Consti-
tutional basis for evoking federal criminal sanctions for acts
of racial violence. We have fifteen years of federal civil
rights enforcement experience behind us.

we know that private civil remedies are unwieldly and unworkable,
The private bar does not have the resource incentive to bring
such cases since there is no evidence that judgments could be
executed. Furthermore, the victim of racial violence or their
family has already had to deal with the pain and cost for
personal injury or property damage. It is foolish to assume

152 i

that they might still have the resources to retain private 1

counsel to pursue any remedy. Lastly, to assume that a truly j
effective private remedy exists for a national problem of the

seriousness and scope of racial violence is to ignore the *

history and legacy of the Civil Rights movement. j

It is our considered opinion that the Justice Department and (
the nation is facing a crisis of unknown proportions. A recent [

report by the Ford Foundation determined that in Miami

I
distrubances , Blacks were already resorting to retaliatory j

violence as a result of the failure of local and state officials

to stem the tide of individual and institutional racial violence ;

against the Black community.

This crisis requires immediate federal action; and leadership j

in the Justice Department with the special experience and unique '

sensitivity that this problem requires. We urge you to act now |

and by acting send a message to this country that racial

violence cannot and will not be tolerated. I

153

Mr. CoNYERS. Our next witness is Steve Winter, Esq., assistant
counsel of the NAACP Legal Defense and Educational Fund, a
former clerk for a Federal appeals judge, and a person very experi-
enced in civil rights matters. We are very pleased to have you here.

TESTIMONY OF STEVE WINTER, ASSISTANT COUNSEL, NAACP
LEGAL DEFENSE AND EDUCATIONAL FUND, INC.

Mr. Winter. Thank you, Mr. Chairman. I would like our written
statement which has previously been submitted to be included as
part of the record of this hearing.

Mr. CoNYERS. Without objection so ordered.

Mr. Winter. Mr. Chairman, members of the committee, I will
not attempt to amplify on the eloquence with which the previous
speakers have addressed the need for an affirmative and concerted
Federal response to the problem of violence directed against minor-
ities in this country. Rather I would like to focus my comments on
the specific statutory changes which we believe are necessary to
enable the Executive, the Justice Department, to move effectively
in this area.

In our view, sections 241 and 242 are far from perfect statutes
and do need numerous changes to make them more easily enforce-
able. Those two statutes remain the most general, the statutes of
widest potential applicability, and of greatest flexibility, and so will
continue to be major tools for any attempt to deal with the prob-
lem of violence against minorities in this country.

I would first like to address the issue of official violence against
minorities. As you, Mr. Chairman, pointed out one of the issues we
must deal with is the question of creating an environment that dis-
courages violence against minorities; and the failure to adequately
prosecute and deter official violence creates an environment that
encourages violence by private actors.

There is little doubt that the primary impediment to successful
prosecution under section 242, and, indeed, under 241 as well, is
the specific intent requirement that has been read into that stat-
ute. Generally, discussion of the specific intent requirement has fo-
cused on the problem of the vagueness of that statute, its failure to
give adequate notice to the would-be violator of what conduct spe-
cifically is prohibited. But there was another and perhaps a more
important problem with the statute and a problem that the Su-
preme Court faced in the Screws case which led it to the specific
intent requirement. If any statute is going to be written or any
modification made, that will eliminate this requirement, this
second problem dealt with by the Supreme Court in Screws must be
addressed. Screws involved the beating death by a Georgia sheriff
of a black arrestee. The Supreme Court had some problem in deter-
mining what the specific constitutional deprivation was in that in-
stance. A minority of the Court found direct relevance in the due
process clause protection of life; but the majority of the Court did
not so ascribe to this concept of summary punishment which was
referred to earlier by counsel for the subcommittee as the grava-
men a civil rights beating offense. The problem of the summary
I punishment theory is that in order to prove summary punishment,
j it is necessary to prove more than just that a beating or killing

154

took place, but that there was an intent to punish. Therein lies the
true genesis of the specific intent requirement.

Fortunately, the evolution of the case law has provided an
answer to this problem. The recent cases in the last decade have
established that the due process clause's protection of liberty in-
cludes the protection from physical violence by officers of the State,
separate and apart from whatever the motive for such violence
may be. The key to writing an effective civil rights statute to deal
with this problem is to incorporate the teachings of that case law. I
refer specifically to United States v. Stokes and Johnson v. Click, <
which are two cases cited in our written statement. If one reviews j
the various drafts of parts of the proposed Federal Criminal Code i
which have been before the Congress in recent years, one finds |
that this has not been adequately done in these sections. Sections j
1502 of the Senate draft of the proposed Criminal Code and section |
2102 as reported out of the House Committee on the Judiciary last |
year do not successfully incorporate the teachings of these cases L
which I have mentioned. I

On the other hand, section 2102 as reported out of this subcom- j
mittee during the last session does adequately deal with this prob-
lem. In our written statement we have included versions of these !
various statutes and a lengthy discussion of how this has been ef- j
fectively done in the subcommittee's version which was later ^
changed by the committee. !

Also i

Mr. CoNYERS. Which gives you a clue of what would happen to j
that legislation. , !

Mr. Winter. Well, we are very much aware of that, Mr. Chair- ]
man. !

Also, one of the major problems with the version as reported out ',
of the committee, the Judiciary Committee of the House, is the des- '
ignation of certain issues to be determined by the jury; that is, the
deprivation of constitutional rights, which is not a normal— nor-;
mally part of the province of the jury. The end result of that!
change in the statute would make 2102, the proposed successor toi
242, even less enforceable than current law. !

Mr. CoNYERS. In other words, that was worse law than that on
the books now? |

Mr. Winter. I think that is correct, Mr. Chairman. !

Other changes which we believe are of crucial importance have |
been referred to by previous speakers. Particularly with regard toj
section 241, the proposed changes would delete the conspiracy re-i
quirement. We think this is an appropriate change. ;

I think, very importantly, both 2101 and 2102 would significantly j
increase the penalties for civil rights violators. One of the signifi- ;
cant problems with section 242 currently is that unless death re-i
suits, the penalty assessed under that statute is a relatively mild
one. Section 2102, as it was reported out of this subcommittee last \
session, would gear the severity of the punishment to the severity i
of the nature of the deprivation, so that a murder would be pun-
ished as a murder normally would under the Federal Code. The
same is true of 2101 which in a different fashion, gears the punish-
ment to the severity of the result. Finally, and most importantly—
and that is something that really is at the heart of these hear-

155

ings — improving the statutes alone is not a sufficient response to
the problems of violence against minorities. The Justice Depart-
ment must be given reimpetus concurrent with improved Federal
statutes, to deal with this problem on a sustained and vigorous
level.

Mr. CoNYERS. You are very generous in giving us our marching
orders here. I appreciate that. We need it, but what are you guys
going to do?

Mr. Winter. Well, specifically in the area of police violence
against minorities, we have focused a lot of our attention and our
time on dealing with a problem which we believe is very funda-
mental to the issue of the environment that is created, and that is
the use of deadly force by police officers against minorities. We cur-
rently have cases going in several jurisdictions which are known
for their use of deadly force against — particularly against minor-
ities, including Memphis, Tenn., Pensacola, and other areas in
Florida. We intend to pursue those as vigorously as we can.

Mr. CoNYERS. How do you distinguish between the lawyers with
the NAACP and the legal defense and educational fund?

Mr. Winter. We have always, worked in very useful cooperation
with the lawyers at the NAACP in very many areas of civil rights
law and hope to be able to continue to do so.

Mr. CoNYERS. Well, I am glad to hear that, but what's the differ-
ence?

Mr. Winter. There are two very separate organizations. The
legal defense fund, although originally founded by the NAACP, has
been a separate civil rights legal organization, and strictly legal or-
ganization, and been separate for some 20-odd years now.

Mr. CoNYERS. Can you describe a class of cases that would be
caught by sections 241 or 242 but would not be caught by section
245?

Mr. Winter. The first distinction, a feature of 245 is that it deals
only with certain types of threats and deals with use of force to dis-
courage exercise of certain Federal rights; 241 is a far more general
statute and deals with any conspiracy to injure, oppress, threaten,
or intimidate in the free exercise of Federal rights.

Section 241 is an extremely broad statute, is extremely flexible
and potentially a very important statute because of the breadth of
its coverage. Some of the case law, though somewhat limited, some
of the case law under 241 indicates that it covers all species of Fed-
eral rights; not just constitutional rights, but other federally guar-
anteed rights.

Mr. Conyers. Could you research for my benefit this question:
Suppose someone suggested to you that there is not a case brought
on either section 241 or section 242 that couldn't be brought under
section 245? How strenuously would you object to that proposition?

Mr. Winter. I would object to that. One of the purposes of 245
was by being more specific, to make the statute more enforceable,
but the tradeoff was that by being more specific, it covers less
ground. Section 241 is a more general statute; potentially it can
cover a great deal more. This whole 13th amendment theory that
has been placed before the subcommittee today would only be
reachable under 241 and not under 245. Section 241 is the statute

156

that deals with general deprivations of the free exercise of rights
protected by the Constitution and laws of the United States.

Mr. CoNYERS. Well, let me get Counsel Hutchison to further com-
ment on this question.

Mr. Hutchison. I think, Mr. Chairman, that section 245 cannot
be considered an exhaustive listing of constitutional rights. It was a
selection in 1968 of rights of particular concern at that time, so
that there are constitutional and statutory rights, violations of
which could be prosecuted under section 241 and could not be
reached under section 245. For example, I think there were a
couple of cases at the Justice Department regarding "sewer serv-
ice," where the process servers, instead of actually serving the
party to the case, would file the process in the sewer. There were
cases brought where a public defender was extorting money from
indigent clients. There is a whole range of rights covered by sec- {
tions 241 and 242 which are not covered by section 245. i

Mr. CoNYERS. Well, what about the area of racially motivated j
violence? i

Mr. Hutchison. In some regards, sections 241 and 242 — if you I
accept the 13th amendment argument that's been offered this i
morning — are far broader than section 245 because section 245 re- :
quires proof of a motive or an intent, even for the rights which are :
guaranteed against any interference regardless of race; you have to
show willfulness and you have to show that the interference is be- 1
cause of the exercise of those rights, whether or not those rights I
are being denied discriminatorily. In that regard section 245 would j
be less broad than section 241 or section 242.

Mr. CoNYERS. Then we are down to the interesting legal discus- j
sion of which of these acts have the greater burdens of proof?

Mr. Winter. I think there is no question, Mr. Chairman, that 241
and 242 posit a higher burden of proof because of the specific
intent requirement. But it is precisely because of that and because
we feel that 241 and 242 are the statutes of wider potential applica-
bility that this burden of proof needs to be lowered and that the
specific intent requirement, through careful drafting, needs to be
eliminated, as in 242, or modified, as in 241. We have provided spe-i
cific suggestions in our written statement about exactly how this
might be done.

Mr. CoNYERS. What is the burden in 245 that is so heavy?

Mr. Winter. The problem with 245 is its specificity. The way 245
avoided specific intent problems was to become very specific about
the nature of the activities that were prohibited. But as Mr. ;
Hutchison pointed out, this is in response to particular, specific
problems that were occurring during the civil rights movement of,
the sixties and it adequately deals with those, but not with all the
possible situations that continue to come up.

Mr. CoNYERS. Let me recognize counsel, Mr. Quinn.

Mr. QuiNN. Mr. Winter, for purposes of 245, is it not true thatj
racially motivated violence would only be prosecutable if it could
be tied into one of the rights specifically mentioned in the statute? j

Mr. Winter. That is correct. As I mentioned earlier, if the Jus- !
tice Department is to take advantage of the 13th amendment
theory, it would have to do so under 241, because that is the only;

157

statute that is broad enough and general enough to encompass
such a theory.

Mr. QuiNN. The alternative would be to continue to seek to
modify 245, adding rights to it?

Mr. Winter. Well, that would be a possibility. I would submit
that the list might get too long. It is very difficult in drafting to
anticipate every situation that might arise, that one might want to
cover.

Mr. QuiNN. Thank you, Mr. Chairman.

Mr. CoNYERS. Well, let's review where we are. We said that the
13th amendment in abolishing slavery carries with it the right to
prevent and the obligation to preclude violence committed on a
person because of race; but now we find the implementing statutes,
as it were, 241 dealing with conspiracy and the other 242, both re-
quiring specific intent; and 245 carrying a maximum of life impris-
onment, a sentence appropriate for murder, only applying in limit-
ed instances under 2 (A) through (F); is that correct?

Mr. Winter. That is correct. I would also add there is one addi-
tional section, 42 U.S.C. 4631, which although it does not appear in
the criminal titles of the United States Code is a criminal statute
involving interference with housing rights. It would be a — it is a
well crafted vehicle for dealing with the problems — some of the
problems of fire bombings that were described by the previous wit-
ness.

Mr. CoNYERS. So if a person were, in fact, murdered because of
his race, under what provision would he be subjected to prosecu-
tion?

Mr. Winter. Currently if it was by a police officer or an official
of the State

Mr. CoNYERS. No. Not one of those. Omit that.

Mr. Winter. If it was by a private individual, that private indi-
vidual could be prosecuted under 241, but only if that was part of a
conspiracy, because 241 deals specifically with conspiracy.

Mr. Conyers. Omit the conspiracy hypothetical.

Mr. Winter. If the statute were modified, it would be 241 as
modified.

Mr. Conyers. Omit modification.

Mr. Winter. Then there was no conspiracy unless he was en-
gaged in one of the specified Federal activities in 245.

Mr. Conyers. Then what you are telling me is that a single
random act of racially motivated violence could not be prosecuted
under 242?

Mr. Winter. Unless it was under color of State law. If it was by
an official or someone acting in concert with a State official, then
it could be.

Mr. Conyers. What about the decisions that have suggested that
color of law goes far beyond whether you are working for the Gov-
ernment or not?

Mr. Winter. Well, I expressly put in that caveat. It would have
to be someone who was a State official or acting in concert with a
State official. In other words, private actors who work with those
cloaked by the authority of the State would also be under color of
law.

11-647 0-83-11

158

Mr. CoNYERS. What about the decisions that I thought I read
that dealt with those who might not be working under color of law
but might be connected with someone that is?

Mr. Winter. That is what I was referring to, Mr. Chairman. It is
normally those cases that involve someone working in concert
with

Mr. Con VERS. So a random act of racially motivated violence
absent those considerations would not be prosecutable under 242?

Mr. Winter. I believe that is correct.

Mr. CoNYERS. Is that the impression that counsel have, too, in
this matter?

Mr. QuiNN. Yes.

Mr. Hutchison. Yes.

Mr. CoNYERS. Both counsel, the record will show, nodded in the
affirmative.

Mr. Winter. I was going to say it is for this reason we think
these statutes do need modification. The conspiracy element of 241
has a very strong historical basis and it grew out of the activities of
the Klan in the Reconstruction Era, but it is not a constitutionally
mandated requirement. The statute would be just as constitutional
without the conspiracy element. We think that is one of the neces-
sary changes in the statute.

Mr. CoNYERS. Well, in that absence of a swift legislative remedy,
what do we do then?

Mr. Winter. Well, absent the changes which we think need to be
made in these statutes, it does not follow that the statutes are not
workable and that vigorous enforcement of these statutes will not
yield results; they will. I think that everything ought to be done to *
encourage the Justice Department to pursue a program of vigorous
enforcement under these statutes, to devote resources to them, to ;
take cases sometimes that they are not sure they are going to win, 'i
which I believe is one of the problems with the prosecutorial pro- i
gram. They are looking for cases which have a very good chance of
success. I think that is normally a valid consideration in the exer- ]
cise of prosecutorial discretion, but given the importance of the
problem, I think, it is perhaps more important to take on cases and i
to try and extend the limits of the law to perhaps bring cases!
under the 13th amendment theory and see if these laws cannot'
have an impact at least on the environment that has been referred ;
to that promotes or at least condones violence against racial minor-
ities. ;

Mr. CoNYERS. How would you describe the characteristics of the ;
enforcement of civil rights laws by the Department of Justice? ;

Mr. Winter. To be perfectly honest I have not done a careful
study or review of the enforcement. I think it is fair to say, though,
in some instances it has been notably lacking. There have been in-;
dividual judgments which the Justice Department has made that li
am aware of that I am in disagreement with.

Mr. Conyers. Would your organization be willing to undertake!
such a study?

Mr. Winter. It is very possible, Mr. Chairman, something we can
look into. We have in the past, I might add communicated with thei
Justice Department about individual cases which have come to our

159

attention which we thought merited investigations and action by
the Justice Department.

Mr. CoNYERS. What is the characteristic of the kind of cases in
Utigation that you do have?

Mr. Winter. Well, our program as I mentioned earlier has, in
large part because of limited resources, focused on what we feel is
one of the most sensitive and important problems in this — in the
area of official violence against minorities. That is the use of
deadly force, particularly as used against nonviolent, fleeing felony
suspects. We have been engaged in litigation in this area of the law
for at least a decade, actually longer, and are currently putting re-
sources into several cases in this area which we hope will be test
cases and hopefully will make new law in this area.

Mr. CoNYERS. So you primarily rely on 241 and 242?

Mr. Winter. That is correct, or on the civil counterparts, 1983,
particularly, for our civil actions.

Mr. Conyers. Are most of your actions civil matters?

Mr. Winter. That is right. I might add, Mr. Chairman, we also
have engaged in a program for the last 10 or 12 years in prison
litigation. Amongst the issue we deal with in that connection is vio-
lence by prison officials against their charges which raise the same
issues we have been dealing with today.

Mr. Conyers. I think it would be important for you and the orga-
nization and the bar to know what the Department of Justice's
track record is in the 241, 242 area. It might be better than you
suspect. It could also be twice as bad as you thought it was.

Mr. Winter. I agree, Mr. Chairman. I think that is an area that
certainly requires further study.

Mr. Conyers. Mr. Quinn.

Mr. Quinn. Mr. Winter, with regard to your suggestion that 242
be changed so as to cover individual acts, when the constitutional-
ity of 241 was challenged, is it true that the intent element was
ruled to be satisfied by the existence of the conspiracy, that in fact
the existence of the conspiracy defined the criminal objective?

Mr. Winter. That is exactly correct. In the United States v.
Guest the Supreme Court did not discuss specific intent because it
stated specifically that by proving the conspiracy, you satisfied the
specific intent requirement.

Mr. Quinn. So in modifying 241 more would have to be done
than merely striking the reference to conspiracy and changing the
language to make reference to an individual or group?

Mr. Winter. I think that is correct. As I suggested earlier, 241 is,
I believe, a statute where, to keep it as broad and as flexibile as it
jcan be, we could not completely eliminate specific intent. But I
think that the specific intent requirement, concurrent with the de-
letion of the conspiracy requirement, that the specific intent re-
quirement can be modified within the structures of the Screws deci-
sion.

[| There's a lot of language in the Screws opinion that suggest dif-
ferent forms of proving specific intent; and one way is a concept of
recklessness with regard to the rights that are deprived. I think
any remodeling of 241 should include that recklessness concept. I
would point out that 2101 in both versions of the proposed Federal
Criminal Code, both coming out of the Judiciary Commitee and the

160

subcommittee, encompasses that suggestion. It picks up the reck-
lessness threat of the Screws opinion.

Mr. QuiNN. So it is your opinion that Congress would not have to
go as far as it did in 245 in terms of specifying?

Mr. Winter. That is correct.

Mr. QuiNN. Thank you.

Mr. CoNYERS. Thank you very much, Mr. Winter.

[The prepared statement of Mr. Winters follows:]

161

statement of the NAACP Legal Defense and
Educational Fund, Inc., Before the
Subcommittee on Criminal Justice of the
U.S. House of Representatives Committee
on the Judiciary

Mr. Chairman, Members of the Subcommittee:

I want to thank the Subcommittee for giving me the opportunity
to present the views of the NAACP Legal Defense & Educational Fund,
Inc., on the problems related to violence against minorities.
The Legal Defense Fund has, since 1940, been the primary organiza-
tion involved in litigation in the area of civil rights. Its
program has included cases spanning the gamut of civil rights,
including numerous cases involving violence perpetrated by police
and other officials against minorities.

While the Subcommittse has focussed on the general problem
of violence against minorities, especially the acts of private
groups and individuals such as the Klan and those responsibile
for the murders in Buffalo, New York, and Salt Lake City, Utah,
it is our belief that the threshold issue is the one of police and
other official violence against minorities. If those cloaked with
the authority of the state are allowed to perpetrate violence
against members of the minori,ty community with impunity, then the
lesson to private malefactors is all too clear. Accordingly, any
approach to the reduction and control of private racially motivated
violence must start with effective tools for the eradication of
such violence when perpetrated by governmental agents.

162

The problem of police brutality against black and other
minorities is one that has repeatedly presented itself with some
urgency, as in Miami last year. State prosecution is often not
forthcoming or, as in Miami, not effective. Unfortunately, federal
prosecution, which is one of the more useful and appropriate re-
sponses to this problem, has been underutilized. This is, in part,
a result of problems with the current criminal civil rights
provisions that result in obstacles to successful prosecutions.
This morning, I will first outline the problems with the current
statutes and the various provisions of the proposed Federal
Criminal Code. I will then proceed with suggestions regarding what
should be done to improve these provisions.

Second, I will address the closely related question of official
failure to protect minorities from private actors. A striking
characteristic of the current statutory scheme is that it provides
civil penalties for such inaction, 42 U.S.C. § 1986, but no
criminal penalties. By underrating the significance of such mis-
conduct, we cannot fail to add to the climate of unlawf ullness that
promotes violence against minorities.

Third, I will discuss the provisions of the current law that
do reach private conduct and the provisions of the proposed Federal
Criminal Code that would modify them.

I . Official Misconduct

1. Current Law ; The current criminal civil rights provisions
are §§ 241, 242 and 245 of Title 18 of the U.S. Code. Section 242
is the statute that reaches most instances of police misconduct.
The Supreme Court was called upon to interpret § 242 in Screws v.
United States , 325 U.S. 91 (1945). There, a Georgia sheriff

163

unlawfully beat and killed a black arrestee. The Court read the
"wilfulness" language of the statute to require proof that the
actor intended to violate the victim's constitutional rights.—
In addition, the Court held that the constitutional violation was
the infliction of summary punishment, a "trial by ordeal," depriving
the victim of his due process right to a trial with fair procedures.

The Screws ruling has caused significant problems in the prose-
cution of police misconduct cases. It requires the prosecution to
prove a higher level of intent than is normally necessary in criminal
cases — i.e., a specific intent to violate the law (here the con-
stitutional rights of the victim) . Based on Screws , some courts
have held that even the specific intent to injure the victim is not
enough; there must be proof of an intention to punish the victim.
These requirements put an intolerable burden on the prosecution,
which already faces the significant reluctance of juries to convict
police officers.

To fully appreciate how the Supreme Court came to these
unusual intent requirements, it is necessary to delve into the
problems that the Court thought it faced. They were two; both
problems dovetailed in a way that pointed to the same solution.
First, a majority of the Court had trouble with the underlying
premise of the case: that the unlawful beating of an arrestee
by state officers which resulted in his death was a constitutional
violation. Only two members of the Court, Justices Murphy and
Rutledge, found direct relevance in the Due Process Clause's pro-
tection of life and liberty. The plurality opinion, that of Justice
Douglas, Reed, Black and Chief Justice Stone, found it necessary

T7 Subsequently, the federal courts have held that the same require-
ment of a specific intent to deprive another of a federally protected
right is applicable under § 241. See , e.g. , United States v. O'Dell ,
462 F.2d 224 (6th Cir. 1972). In United States v. Guest , 383 U.S. 745,
753-54 (1966), however, the Supreme Court indicated that the scienter
element of §241 was automatically satisfied by proof of a conspiracy, i
since comspiracy by its very nature requires knowledge of the '

criminal objectives. »

164

to indulge in the fiction that the actors sought to deprive the

victim of his due process rights to a trial with fair procedures

by inflicting summary punishment, a "trial by ordeal." 325 U.S.

at 106.

Those who decide to take the law into their
own hands and act as prosecutor, jury, judge,
and executioner plainly act to deprive a
prisoner of the trial which due process of
law guarantees him.

Id . Thus, to establish that the beating was a constitutional
violation, it was necessary to find more than a mere bad motive
to harm the prisoner. Rather, the gravamen of the offense was
the specific intent of the accused to deprive their prisoner of
a fair trial as "inferred from all the circumstances attendant
on the act." Id .

The second problem was the ambiguity of a statute that makes
it a criminal offense to violate constitutional rights. It was
felt that such a statute would run afoul of the principle that
criminal statutes should give reasonable warning of what is pro-
hibited conduct. Neither an actor nor a judge could know "with
sufficient def initeness, " id. at 104, the range of rights that
are constitutional or that would be so included in an after-the-
fact decision. The plurality felt that the statute could be saved
from this infirmity if the "willfulness" requirement was read to

mean that the actor acted with the intent to violate an established

2/
constitutional right of the victim.- In that case, he could not

be heard to complain that he did not know that the statute prohibited

the type of conduct he had indulged in. Id.

2^/ Justices Murphy and Rutledge, on the other hand, would not
have read the "willfulness" language to require a specific intent,
[continue on next page]

165

2. The Proposed Federal Criminal Code : In order to craft
a more enforceable sucessor to § 242, both geneses of the
Screws specific intent requirement must be accounted for. However,
it does not follow that the only solution is that chosen by the
Court in Screws ; Screws itself does not purport to establish the
only constitutional answer to these problems. As noted in the
plurality opinion: "If Congress desires to give the Act wider
scope, it may find ways of doing so." Id. at 105.

The method chosen by § 1502 of the Senate's draft of the
proposed Federal Criminal Code (attached as Appendix A) for
solving these problems is to specify the prohibited conduct, thus
obviating the vagueness issue. This is a superior way in which
to solve this aspect of the Screws problem. However, although
subsection (b) attempts to ameliorate the proof of intent require-
ment, it does not remedy the first problem faced by the Screws
court. This is made clear by reference to two of the relatively
recent cases brought under the current criminal civil rights
provisions .

In United States v. Ehrlichman , 546 F.2d 910 (D.C.Cir. 1976),
the court upheld Ehrlichman 's conviction under § 241 for his approval
of the "black bag job" on the office of Dr. Louis Feilding, Daniel
Ellsberg's psychiatrist. Ehrlichman claimed that he did not act
with the requisite specific intent since he had a good faith belief
in the legality of the operation. In its discussion of the specific
intent requirement of Screws, the court said that:

2/ (continue) To them, it was enough that the defendants had
deprived the victim of his life and that the Due Process Clause
prohibited just such a deprivation. Screws , supra , 325 U.S. at
123 (Rutledge, J.), and at 136 (Murphy, J.).

166

...its holding essentially sets forth two
requirements for a finding of "specific
intent" under section 242. The first is
a purely legal determination. Is the con-
stitutional right at issue clearly delin-
eated and plainly applicable under the
circumstances of the case? If the trial
judge concludes that it is, then the
jury must make the second, factual, deter-
mination. Did the defendant commit the
act in question with the particular purpose
of depriving the citizen victim of his enjoy-
ment of the interests protected by that
federal right. If both requirements are met,
even if the defendant did not in fact recog-
nize the unconstitutionality of his act, he
will be adjudged as a matter of law to have
acted "willfully" — i.e. , "in reckless dis-
regard fo constitutional prohibitions or
guarantees."

Id . at 921. This "interest" analysis applied in this way mitigates

the "specific intent" requirement of Screws in a way not unlike

§ 1502 (b) . Having determined as a matter of law that Dr. Fielding's

Fourth Amendment rights were violated, it was not difficult — indeed, '

it follows almost inexorably from the very nature of the conduct —

that the actors' conduct was intentional with regard to the interests

of privacy of the victim.

When the victim is subject to an unlawful assault, however,

even this liberalizing interpretation of Screws is not necessarily

helpful. Consider the case of United States v. Shafer , 384 F.Supp.

496 (N.D.Ohio 1974), concerning the prosecution of the guardsmen

who fired on the students at Kent State. If the Ehrlic h ma n analysis

were applied to a Screws analysis of the nature of the violation —

a deprivation of the right to trial by jury — a very different

167

result obtains. By killing the four students, the guardsmen did

deprive them of their right to due process procedures. But it

is not clear, under this analysis, that a constitutional right

was violated even if excessive force was used and death resulted.

It is one thing to be guilty of excessive
force, and thus chargeable with violating
the law of the state or territory; it is
quite another for a policeman to administer
a physical beating as punishment for al-
legedly breaking the law.

United States v. Delerme , 457 F.2d 156, 161 (3rd Cir . 1972), quoted
in Shafer , supra , 384 F.Supp. at 501. Thus, specific intent would
be required in order to prove the underlying constitutional viola-
tion. A specific intent with regard to the interests affected,
the harm to the person, would not be enough. Rather, as the court
found :

Even the specific intent to injure, or the
reckless use of excessive force, without
more, does not satisfy the requirements of
§ 242 as construed in Screws . There must
exist an intention to "punish or to prevent
the exercise of constitutionally guaranteed
rights. ..."

Shafer , supra , 384 F.Supp. at 503.

A different view of the underlying constitutional violation

in a Screws type case involving a police assault removes this

aspect of the specific intent problem. Screws talked of deprivations.

...of a right which has been made specific
either by the express terms of the Consti-
tution or laws of the United States or by
decisions interpreting them.

168

Id . at 104. As Justice Rutledge noted: "Others will enter that
category." ^. at 131. Now:

There are numerous cases .. .which support the
proposition that one's right to be free from
unlawful assault by state law enforcement
of f icers. . .has been made a definite and spe-
cific part of the body of due process rights
protected by the Fourteenth Amendment to the
Constitution. .. .In all of these cases it was
the unreasonable, unnecessary or unprovoked
use of force alone which was the alleged
deprivation of a constitutional right.

United States v. Stokes , 506 F.2d 771, 775-76 (5th Cir . 1975)
(citations omitted). As noted in Stokes , many of these cases were

decided under 42 U.S.C. § 1983, the civil counterpart to § 242, i

which premises civil liability on the violation of a constitutional
(or other federal) right. In Johnson v. Click , 481 F.2d 1028 (2d

Cir.), cert, denied , 414 U.S. 1033 (1973), Judge Friendly

articulated the rationale:

IQjuite apart from any "specific" of the
Bill of Rights, application of undue
force by law enforcement officers deprives
a suspect of liberty without due process
of law.

Id. at 1032. The"liberty" protected by the Due Process Clause

includes the right of "personal security." Jenkins v. Averett, 424

F.2d 1228, 1232 (4th Cir. 1970) (§ 1983); Lynch v. United States ,

189 F.2d 476, 479 (5th Cir.), cert, denied , 342 U.S. 831 (1951) (§

242) .y

j7 virtually every circuit has, in the § 1983 context, held that
the use of excessive force by officers of the state violates the
victim's constitutional rights, although some of the pre- Johnson
cases have relied upon the Fourth or Eighth Amendments. These
cases indicate that this is a generalized right, not limited to
police misconduct. See, e.g. , Gregory v. Thompson , 500 F.2d 59
(9th Cir. 1974) (litigant assaulted by judge). See generally ,
Howell V. Cataldi , 464 F.2d 272 (3rd Cir. 1972) (police officers;
Jenkins v. Averret , 424 F.2d 1228 (4th Cir. 1970) (police officer);
Hamilton v. Chaffin , 506 F.2d 904 (5th Cir. 1975); Tolbert v. Bragan ,
451 F.2d 1020

169

Analyzing the Shafer case from this perspective, a very

different result obtains. If the constitutional right is the

right not to be assaulted and

...the evidence presented by the government
would support a finding that the amount of
force used by defendants was excessive and
unjustified; that they intended to harm or
frighten at least some of the demonstrators;
and that they fired without being ordered to

do so . . . r

Shafer , supra , 384 F.Supp. at 502, then the underlying consti-
tutional violation is adequately proved. The specific intent
problem is, then, not an overwhelming obstacle to a civil rights
prosecution (under either current §242 or proposed §1502), since
it would only be necessary to prove intent to cause bodily harm.

It is clear, then, that the key to writing an effective
criminal civil rights provision to cover the unconstitutional
use of force by police officers is to incorporate the stokes/
Johnson v. Click line of cases into the statute. The Senate
version, §1502, does not do so. This is the result of the "and
thereby deprives" language of subsection (a) which would require
the court to make two determinations. First, it would have to
ascertain whether the defendant had committed one of the enumerated
offenses. Second, it would have to determine whether, in doing
so, he or she "thereby deprived" the victim of a constitutional

J/ (continued) (5th Cir. 1971) (prison guards); Byrd v. Brishke ,
466 F.2d 6 (7th Cir. 1972) (police officer); Morgan v. Labiak ,
368 F.2d 338, (10th Cir. 1966); Carter v. Carlson , 447 F.2d 358

(D.C.Cir. 1971) rev'd on other grounds sub nom . Carter v. Distri ct
of Columbia , 409 U.S. 418 (1973); Fitzke v. Shappel , 468 F.2d 1072

(6th Cir. 1972), (denial of medical care); Jackson v. Allen , 376
F.Supp. 1393 (E.D.Ark. 1974).

170

right. The statute leaves open the nature of the constitutional
violation, allowing courts to continue to ascribe to the outdated
Screws notion of summary punishment as the gravamen of a civil
rights/assault offense. See, e.g. , United States v. Delerme , 457
F.2d 156, 161 (3rd Cir. 1972); United States v. Shafer , 384 F.Supp.
496, 503 (N.D.Ohio 1974). This language also suggests a case by
case determination of which assault, for example, constitutes a
constitutional violation. This allows for subjective determinations
based on the severity of the conduct, i.e., whether it "shocks the
conscience." Cf. Jones v. Marshall , 528 F.2d 132, 139 (2d Cir.
1975); Brudney v. Ematrado , 414 F.Supp. 1187, 1190 (D.Conn. 1976);
Townes v. Swenson , 349 F.Supp. 1246, 1248 (W.D.Mo. 1972) (dicta
under §1983) .

The House's version shares this failing. Section 2102 as
reported out of the Judiciary Committee (attached as Appendix B)
retains the "and thereby deprives" formulation leaving open the
nature of the constitutional offense and the possible reimportation
of Screws -type specific intent. Moreover, the Committee version
compounds this problem by leaving to the jury the question of
whether a particular police murder or assault is a constitutional
violation. The committee draft denominates the question of
"whether a right, privilege, or immunity is secured by the
Constitution or laws of the United States" a question of law, i.e.
to be decided by the judge. But, unlike current law, the draft
would allocate to the jury, not the court, the determination
whether there was a deprivation of a constitutional right. This
stems from the language of subsection (c) (2) which, in stating

171

that no state of mind need be proved, labels the deprivation of the
constitutional right — and not the assault or murder, for example
— the result element of the offense. Since the jury must find
each element of the offense in order to convict, it allocates to
the jury the difficult conceptual determination (see discussion
above) whether the actor's conduct was a constitutional violation.

This misallocation of the decision making province of judge
and jury, see Ehrlichman , supra , 546 F.2d at 921, is made more
unacceptible when one considers that one of the major problems with
prosecutions under § 242 has been that of jury nullification — the
reluctance of juries to convict law enforcement personnel regard-
less of the severity of the misconduct. To some extent this is
related to the race of the officers and the victims. But it
also involves deep-seated pro-police bias. In a 1970 Harris poll,
77% of those polled believed that when a police officer killed
while on duty, that killing was automatically justified. Some
Justice Department lawyers have unofficially observed that, because
of the jury problem, the conviction rate in criminal civil rights
prosecutions of police misconduct cases rarely exceeds 50%. A good
example is a Legal Defense Fund case regarding excessive use of
force by three prison guards. These same defendants were acquitted
by the jury in a criminal civil rights prosecution. Legal Defense
Fund then brought a civil § 1983 suit which was tried to the court
before a different federal judge who awarded the plaintiff 45,000

172

dollars in actual and punitive damages.

While no one would suggest disturbing the constitutionally
guaranteed right to trial by jury, the Congress must take
cognizance of the jury nullification problem. It makes no sense
to compound the problem, as the Committee draft does, by assigning
to the jury additional, complex legal determinations which are
normally the province of the judge. The net result is that § 2102
will likely be a less enforceable statute than its predecessor,
§ 242.

Another problem with the current draft of § 2102 is its limited
scope. As reported out of the Subcommittee, § 2102 also covered
police misconduct involving privacy rights, property crimes involv-
ing use of force and such obvious due process violation as tamper-
ing with evidence. The current draft of § 2102 has deleted this
coverage. But these are clearly important civil rights which have
often been violated by local and even federal officials. See, e.g. .
United States v. Ehrlichman , supra ; United States v. Liddy , 54 2
F.2d 76 (D.C.Cir. 1976); United States v. McClean , 528 F.2d 1250
(2d Cir. 1976) (successful prosecution under § 242 for police
extortion plan); Schuler v. Wainwright , 341 F.Supp. 1061 (M.D.Fla.
1972), vacated , 491 F.2d 1213 (5th Cir. 1974) and Irvin v. State
of Florida , 66 So. 2d 288 (1953) (same sheriff implicated in
manufacturing footprint evidence). Inclusion of the obstruction
of justice offenses is particularly important. They are often
perpetrated against the politically powerless, especially blacks.

173

They go directly to the fairness of the victim's trial; they are
clear due process violations. State criminal proceedings rarely
deal with these actions satisfactorily, see Shuler and Irvin ,
supra , let alone serve as adequate deterrents. Federal prosecution
of these hardcore due process violations is the only realistic
deterrent.

The draft should include and incorporate the offenses in
these three areas: the obstruction of justice offenses, §§ 1721-27;
the offenses that implicate fourth amendment privacy rights,
burglary and criminal trespass, §§ 2511 and 2512; and the property
crimes involving use of force or threat of force, robbery and
extortion, §§ 2521 and 2522. ^^

3. The Previous Draft ; The version of § 2102 that was report-
ed out of this Subcommittee (attached in modified form as Appendix
C) is a far superior and more easily enforceable statute than
either current law or the current drafts. It deals with the Screws
problem in a straightforward way that would greatly aid the
prosecution of civil rights violations, especially police misconduct.
It simply lists various crimes (including murder, assault, burglary,
and tampering with evidence) which, if committed by police in their
official capacity — i.e., "under color of law," could be prosecuted

17 The Supreme Court's recent opinion in Parratt v. Taylor , 49
U.S.L.W. 4509 (1981), would not affect the inclusion of these
offenses since they involve more than mere property rights, center-
ing on the threat of violence which implicates the right to personal
security discussed above. They should be handled in the same fashion
as § 2316, communicating a Threat. As with the inclusion of that
provision. Congress should invoke its enforcement power under § 5
of the Fourteenth Amendment and determine that, when done under color
of law, placing someone in fear of imminent bodily injury without
valid reason or purpose violates that person's right to personal
security and bodily integrity. Or, in the alternative, it can deter-
mine that the constitutional interests in personal security and bodily
integrity are so integrally involved in such a situation that it is
necessary to protect them in this fashion.

11-647 0-83-12

174

as civil rights violations. Relying on the modern cases, it simply
states that when such activities are committed by police or other
officials in their official capacities, they are inherently uncon-
stitutional because they involve excessive and illegal use of state
power .

The previous draft, then, is eminently more enforceable than
either current law or the recent drafts before the House or Senate.
It would eliminate both the requirement to prove a specific intent
to violate the Constitution and the antiquated case law requiring
proof of specific intent to punish. Rather, the prosecution need
only prove that the police officer or other official, acting under
color of law, misused his authority by committing a murder, assault,
or burglary, or by tampering with evidence, an approach more easily
understood by juries. Moreover, this has the additional advantage
of making a clear statement that police and other officials are
not above the law — that murder, assault, and burglary are just
as criminal when perpetrated by police.

Let me hasten to add that this statute would not add to federal
jurisdiction nor usurp enforcement of criminal laws properly the
province of the states. This is inherent in the statutory scheme;
the provision would only be coextensive with constitutional prohibi-
tions of official misconduct. Moreover, the provision takes cogni-
zance of the fact that many of the included offenses concern con-
duct, such as the use of force or entry onto private property,
which is normally part of proper police or other official conduct.

175

There are several safeguards built into the statutory
scheme which limit the application of this provision to uncon-
stitutional behavior. The first of these is the "under color of
law" requirement. Thus, the ordinary situation in which excessive
force is used under color of law would constitute a violation of
the section. Acts involving excessive force by a law enforcement
officer in the course of a private altercation, however, would not
normally be a violation. Second, the general defenses outlines in
Chapter 7 of the proposed Federal Criminal code are applicable.
Section 725(2) is of particular note since it provides a defense
for conduct engaged in reasonable reliance upon a statement of law
contained in a decision, opinion, order, or judgment in a court of
the United States. As a result, conduct which might technically
fall within the prohibitions of one of these enumerated sections,
but which has previously been adjudged to be within constitutional
limitations, would not be punishable. Also, with regard to those
enumerated offenses involving use of physical force, the defenses
of § 727, with regard to protection of persons, and § 728, with
regard to protection of property, are specifically available.
Third, many of the enumerated offenses include definitional
language which would exclude bona fide official conduct from its
prohibition. For example, §§ 2511 and 2512, relating to criminal
entry and criminal trespass respectively, both apply only to entry
or trespass "without privilege". Similarly, definitions contained
in the general provisions for each subchapter would be applicable; As a

176

result, the enumerated offenses relating to criminal restraint

would only apply as provided in § 2324(a)(2), if the restraint is

committed "unlawfully." Finally, certain of the enumerated

offenses such as those relating to sexual misconduct and relating

to robbery and extortion, would inherently involve misconduct.

In summary, let me emphasize that, if the criminal civil rights

provisions are to be enforceable tools in the effort to contain

police misconduct and insure the civil rights of minorities, it is

important that the original draft of § 2102 as reported out of the

Subcommittee be reinstated and passed by the House. Indeed, § 242

should be modified along these lines regardless of the progress of

the proposed criminal code.

II. Failure of Pro tection

A specific problem not covered by the proposed Federal Criminal

Code's extensive protection of the exercise of federal rights, §§ ,

j
2101-2112, is that of the failure to act by those who have the duty ]

and the power to prevent interference with the exercise of federal I
rights. This was raised in our testimony before the Senate Sub-
committee on Criminal Laws and Procedure as early as 1972. There
have been numerous incidents when federal or state law enforcement
officers have stood by and allowed other persons to assault those
engaged in the peaceful exercise of federal rights. All of the
provisions that prohibit interference with the exercise of federal ,
rights deal only with one who interferes directly, not with those
who have a duty to prevent such interference. If we are concerned
about protecting minorities from violence, we must be sure that

local and federal law enforcement personnel take these responsibiliti(

seriously.

177

It is both possible and desirable to have a statute that
prohibits such deliberate indifference without creating a
general duty of police protection. A draft of such a statute is
contained in Appendix D.

Ill . Reaching Private Conduct - Section 2101

Section 2101 (attached as Appendix E)— is an amalgam of § 241
and part of § 242. Subsection (a) (1) is the catchall successor
to § 242, picking up civil rights offenses not specifically enumer-
ated in § 2102. Subsection (a) (2) is the redraft of § 241. In
its current form, it is an improvement on § 241, reaching a broad
range of private conduct within the structures of constitutional
limitations. This draft should be adopted by the Congress in its
effort to curb violence directed at minorities.

Two of the improvements of this section are the dropping of
the conspiracy requirement and the change in the victim designation.
While conspiracies would still be punishable under § 1102 (Conspiracy)
of the draft, it is important that individuals too be prosecuted
when they act to injure or intimidate another engaged in the free,
exercise of a federally protected right. The change in the victim
designation, from "citizen" to "person," provides the protection of
this statute — like its sister provision § 242 and its successor,
§ 2102 — to all those subject to our laws.

J/ The House draft is superior to the Senate draft, § 1501, in
respect to clarity and coverage. A copy of the Senate draft is
attached as Appendix F.

178

Section 2101 is also a useful tool because of the way in

which it deals with the problem of intent. While the injury or

intimidation must be motivated by the victim's exercise of a

federally protected right, subsection (c) indicates that the

offender need not be conscious of the federally protected nature

of the victim's conduct. As noted in Screws ;

The fact that the defendants may not have
been thinking in constitutional terms is
not material where their aim was not to
enforce local law but to deprive a citizen
of a right and that right was protected
by the Constitution. When they so act
they at least act in reckless disregard
of constitutional prohibition or guarantees.

325 U.S. at 106. Subsection (c) thus codifies the criteria

delineated in United States v. Ehrlichman , supra ; If the court

finds that the victim was engaged in the exercise of a federally

protected right and the jury finds that the actor intended to

infringe on the interests protected by that right, then, "le]ven

if the defendant did not in fact recognize the unconstitutionality

of his act, he will be adjudged as a matter of law to have acted . .

in reckless disregard of constitutional prohibitions or guarantees."

Screws , supra , 325 U.S. at 105.

Section 2101 is crucial in reaching private conduct directed

against minorities because of the breadth of the protected rights

encompassed in § 2101. This broad scope is illustrated by cases

decided under § 241. It has been held that § 241 protects such

important interest as the right to be free from slavery or

involuntary servitude except as punishment for crime. Smith v.

United States, 157 Fed. 721 (8th Cir . 1907), the right to be free

179

from an unlawful search and seizure, Ehrl ichman , supra , the right
to remain in the official custody of the United States Marshal,
Logan v. United States , 144 U.S. 263 (1892), the right to report
violations of federal law, Moates v. United States , 178 U.S. 458,
462-63 (1900), the right to testify at proceedings held under
authority of federal law, Fess v. United States , 266 Fed. 881
(9th Cir. 1920), the right to travel interstate. United States v.
Guest , 383 U.S. 745 (1966), the right to vote in federal and state
elections. United States v. Classic , 313 U.S. 229 (1941); United
States v. Anderson , 481 F.2d 685, 698-701 (4th Cir. 1973), aff 'd
on other grounds , 417 U.S. 211 (1974), and the right to assemble
and petition the government for redress of grievances. United
States V. Cruikshank , 92 U.S. 542 (1975).

In addition to the protection of constitutionally secured
rights, the Supreme Court has indicated that these statutes include
the protection of rights secured by civil statutes in the United
States Code. In United States v. Johnson , 390 U.S. 563 (1968)
the Court sustained the prosecution under § 241 of a person who
had interferred with blacks in their access to public accommoda-
tions covered by the Civil Rights Act of 1964. The Court re-
affirmed the language in United States v. Price , 383 U.S. 787,
801 (1966), that § 241 must be accorded "a sweep as broad as its
language." Thus in continuing this coverage of § 241, §2101
potentially reaches a broad spectrum of private conduct directed
against minorities as they use public accommodations, apply for

180

employment, travel interstate, peaceably march and petition,
testify in federal proceedings or vote.

IV. Enforcement by the Justice Department

I have focussed my remarks on the tools which the Congress j
should provide the executive in order for it to be able to deal
with these problems of violence against minorities. However, |
a tool is only as effective as the one who wields it. Federal
enforcement of these statutes must be vigorous. Too often,
the Justice Department has cited the difficulties of prosecution j
as reason not to proceed. Goncurrent with more enforceable statutes, ,
the Department must be given additional impetus to vigorously 1
investigate, pursue, and successfully prosecute violations of the
civil rights of minorities and all others. These are federally
created rights; they must be protected by determined federal
vigilence. I

181

APPENDIX A

"§ 1502. Interfering with Civil Rights under Color of Law

"(a) OFFENSE. -A person is guilty of an offense if, acting
under color of law, he engages in any conduct constituting
an offense described in a section in chapter 16 or 17, and
thereby deprives another person of a right, privilege, or
immunity secured to such other person by the Constitution or
laws of the United States.

"(b) PROOF. -In a prosecution under this section, whether
the deprivation concerns a right, privilege, or immunity
secured by the Constitution or laws of the United States is
a question of law.

"(c) GRADING. -An offense described in this section is a
Class A misdemeanor.

182

APPENDIX B

§ 2102. Interfering with Civil Rights Under Color of Law

(a) Whoever, under color of law, engages in conduct which I

would violate a section listed in subsection (b) of this sec-
tion except for the fact that Federal jurisdiction under that |
section does not otherwise exist, and thereby deprives another I
of a right, privilege, or immunity secured by the Constitution
or laws of the United States, shall be punished as provided I
for an offense under such section so listed. j

(b) The sections referred to in subsection (a) of this I
section are sections 2301 (relating to murder), 2302 (relating

to manslaughter), 2311 (relating to maiming), 2312 (relating
to aggravated battery), 2313 (relating to battery), 2314
(relating to aggravated assault), 2315 (relating to terrorizing),
2316 (relating to communicating a threat) , 2321 (relating to
kidnaping), 2322 (relating to aggravated criminal restraint),
2323 (relating to criminal restraint) , 2331 (relating to
aggravated criminal sexual conduct), 2332 (relating to criminal
sexual conduct), 2333 (relating to sexual abuse of a minor),
and 2334 (relating to sexual abuse of a ward) .

(c)(1) In a prosecution under this section, it is a
question of law (as to which no state of mind need be proved)
whether a right, privilege, or immunity is secured by the
Constitution or laws of the United States.

(2) In a prosecution under this section, no state of mind
need be proved as to the result that there was a deprivation
of a right, privilege, or immunity secured by the Constitution
or laws of the United States.

183

APPENDIX C

§ 2102. Interfering with Civil Rights Under Color or Law

Whoever, acting under color of law, engages in conduct
which would violate section 1721 (relating to witness bribery
and graft), 1722 (relating to informant bribery and graft),

1723 (relating to tampering with a witness or an informant),

1724 (relating to retaliating against a witness or an
informant), 1725 (relating to tampering with physical evidence),
1726 (relating to communicating with a juror), 1727 (relating to
monitoring jury deliberations), 2301 (relating to murder),

2302 (relating to manslaughter), 2311 (relating to maiming),
2312 (relating to aggravated battery), 2313 (relating to
battery), 2314 (relating to aggravated assault), 2315 (relating
to terrorizing), 2316 (relating to communicating a threat),
2321 (relating to kidnaping), 2322 (relating to aggravated
criminal restraint), 2323 (relating to criminal restraint),
2331 (relating to aggravated criminal sexual conduct), 2332
(relating to criminal sexual conduct), 2333 (relating to sexual
abuse of a minor), 2334 (relating to sexual abuse of a ward),
2511 (relating to criminal entry), 2512 (relating to criminal
trespass), 2521 (relating to robbery), 2522 (relating to
extortion), of this title except for the fact that federal
jurisdiction does not otherwise exist, shall be punished as
provided for an offense under that section.

184

APPENDIX D

A Statute such as that described in the memorandum could
read as follows:

§ 2108. FAILURE TO PROTECT FEDERALLY
PROTECTED RIGHTS

(a) Whoever, having such authority
under state or federal law, knowingly
fails to exercise his authority to pro-
tect persons in the free exercise or
enjoyment of a right, benefit or activity
protected by sections §§ 2101-2112
of this title from unlawful interference
by third parties, when he has the ability
to provide such protection.

(b) In a prosecution under this
section, whether the interference concerns
a right, benefit, or activity protected by
§§ 2101-2112 is a question of law (as to
which no state of mind need be proved) ;

(1) Provided that , to be guilty of
an offense under this section the person
who fails to act must be reckless with
regard to whether the interference con-
cerns such a right, benefit or activity.

The salient points of this provision are that the officer who

fails to act must do so knowingly. That is, he must know that

the danger exists and still fail to respond. He need not in

fact know that the activity interfered with is a protected one;

it is enough if he is aware of a risk that this is so, i.e.,

that he is in reckless disregard of the protected nature of

the activity. This should not create substantial problems since

most of the rights, etc., protected by these sections are common

knowledge, particularly amongst law enforcement officers. Also,

liability under the statute would only exist if the person who

fails to act has state or federal authority to do so — e.g., a police,

officer or FBI agent — and has the ability to provide such protectioa

185

APPENDIX E

§ 2101. Interfering with Civil Rights

(a) Whoever-

(1) under color of law, intentionally engages in
conduct and thereby recklessly deprives another person of

a right, privilege, or immunity secured by the Constitution
or laws of the United States; or

(2) intentionally injures, oppresses, threatens or
intimidates another person in the free exercise or enjoyment
of, or because of such other person's having exercised, a
right, privilege, or immunity secured by the Constitution

or laws of the United States:

or attempts to do so, shall be punished as provided in

subsection (b) of this section.

(b) An offense under this section is-

(1) a class A felony if the actor engages in conduct
with intent to produce bodily injury and recklessly causes
the death of any person;

(2) a class C felony if the actor intentionally causes
bodily injury to another person; and

(3) a class A misdemeanor in any other case.

a right, privilege, or immunity is secured by the Constitution
or laws of the United States.

186

APPENDIX F

"§ 1501. Interfering with Civil Rights

"(a) OFFENSE. -A person is guilty of an offense if he

intentionally :

"(1) deprives another person of; or

"(2) injures, oppresses, threatens, or imtimidates

another person:

"(A) in the free exercise or enjoyment of; or
"(B) because of his having exercised; a right,

privilege, or immunity secured to such other person by the

Constitution or laws of the United States.

"(b) PROOF. -In a prosecution under this section, whether

the deprivation, injury, oppression, threat, or intimidation

concerns a right, privilege, or immunity secured by the

Constitution or laws of the United States is a question of law
"(c) GRADING. -An offense described in this section is

a Class A misdemeanor.

187

Mr. CoNYERS. Our final witness is Dr. Arthur L. Green, the At-
lantic region representative and Federal liaison for the International
Association of Official Human Rights Agencies. He has been the di-
rector of the Connecticut Commission on Human Rights and Op-
portunities and has been before the committee on a frequent basis.
Welcome before us.

TESTIMONY OF DR. ARTHUR L. GREEN, DIRECTOR, CONNECTICUT
COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES

Mr. Green. Thank you, Mr. Chairman.

Mr. Chairman, I would like to request that the prepared state-
ment together with a report by the Connecticut Commission be
submitted for the official record.

Mr. CoNYERS. Without objection, it will be included in the record.

Mr. Green. I would like to at this time, Mr. Chairman, simply
highlight our statement and add additional comments. First, we
are very pleased that this committee is looking into this very im-
portant matter. We, meaning the over 500 State and local human
rights agencies in this country with our unique brand of organiza-
tions. We represent our State and local governments. We have the
responsibility to enforce the entire body of antidiscrimination laws
at the local and State level. Those laws include housing, employ-
ment, and public accommodations and in various instances discrim-
ination against the person with a criminal record. Our jurisdictions
are broad and legion. We have responsibilities in the area of race,
color, sex, national origin, religious creed, religion, physical disabil-
ity, and it goes on and on varying only with the State and local
jurisdiction.

I represent this organization and over 500 State and local agen-
cies. We have in common a need to improve our own professional-
ism and to share our knowledge and information. In that regard,
the association, the board of directors, over 7 to 8 years ago, ap-
pointed me to represent its views, their views, before the Federal
civil rights enforcement agencies. So it is in that particular capac-
ity that I wish to address the subcommittee.

Mr. CoNYERS. Who appointed you to what?

Mr. Green. The board of directors of the International Associ-
ation of Official Human Rights Agencies appointed me over 7 to 8
years ago to act as its spokesman at the Federal level. That is a
very critical role for our organization. It is really the heart of your
inquiry here.

Mr. Conyers. So you not only represent the 500 local human
rights organizations in the United States, you operate on an inter-
national basis?

Mr. Green. Yes. The references to international takes into the
organization four Provinces of Canada and we have had association
with the Race Relations Board of Great Britain, and tried on var-
ious occasions to induce into membership some of the governments
in the Caribbean area. Our thoughts are that the struggle for
human rights ought to be internationally coordinated and our
effort is a coordinating one, primarily. For our board, while consist-
ing of volunteers, we have had, from time to time, some staff assist-
ance. We have a headquarters here in Washington. We are largely.

188

though, volunteers, like myself, who represent State and local
agencies. I am head of a State commission.

The role of the Federal liaison, of which I am primarily the
person, is to see to it that the Federal agencies in our country with
civil rights responsibilities — and that is all of them, we feel, in|
varying ways — coordinate with us. I have appeared before other!
congressional committees speaking to this very point, urging thati
the Federal Government, the President on down, require a closerl
coordination and communication at the State and local levels so!
that we not duplicate our efforts and we not squander resources—!
that we share resources. I must say, Mr. Chairman, that has not} (
worked very well. Even today, I am concerned that our efforts to] i
know what happens, say, in HUD or EEOC or OFCP, have not]
proven to be very successful. I am concerned further that we duplii i
cate perhaps the effort because of lack of coordination and informa-. i
tion. ; I

We at the State and local levels have been trying to monitoij ji
closely the increasing incidents of cross burnings and racial vio| [|
lence against minorities in this country. Our monitoring effort if
meager because we do not have the adequate resources to do thai
well; but I have — as the Federal liaison — developed a comprehen
sive picture, if you will, of what the country looks like from oui
perspective and our perspective, again, sir, is the State and loca
officials charged with the administration of the antidiscriminatior
laws.

We, for example, will be meeting in Dayton, Ohio, on July 13. '.
have invited as part of my responsibility about six Federal senioi
civil rights officials to come before the organization and to address
what they are doing in the area of civil rights law enforcement. Wt
are trying to get a handle on what it is that is going to be heading
up the Justice Department's Civil Rights Division, for example.

I sat through your hearings this morning and listened to some o
your inquiry in this area, that we, the organizations, need to als(
reach out and try to advocate their involvement and their coordi^
nation.

That is part of what we are doing: trying to get the Federal offi;
cial, at least once a year, to talk to a large audience of officials a
the local level, tell us what they are doing, the direction they ar<J
going, and we react to that. \

We have seen, as you have heard already, a rising increase ill
violence against blacks and other minority people. We have seen i
rising increase in the number of attacks on persons because of reli
gious affiliations. The associations I represent tried to address this;
problem in our way. Our way has been largely to encourage oui
Governors and mayors to develop citizens' groups, if you will, o:' "
task forces or convene meetings to look at the problem in its broad ^
est terms, and the broadest terms of the problem are more thai ^
mere law enforcement. I say more than mere law enforcement, be!
cause the lawyers would suggest that perhaps that's the way to go, J
We somewhat nonlawyers and lawyers working for human right '
agencies feel that the other dimension to the problem, sir, is tha
the country has a climate. The climate of the country seems to en
courage these acts of violence whether by organized effort o
random acts more dangerous to us, sir, than the organized effort.

til

189

am more concerned about the individual young white person that
decides to fire bomb, as we have seen in Connecticut; and I am
more concerned about the acts of spontaneous attacks by young
whites against blacks than I am about the Klan organizing across
State lines, although they are doing that, there is evidence for it. I
am more concerned that a climate exists where people feel that the
climate, by the way, is both political and economic. That climate
suggests that it is OK, that nothing is going to be done because
they have gone too far. If I sound subjective about this, it is be-
cause the nature of the problem has to be looked at not just in an
"objective legal way" but also one has to understand the mentality
of what we are dealing with. We are dealing with people in a cli-
mate that is encouraging people.

That encouragement is frightening, because it comes from all
levels of our economy, political, and community levels. The Inter-
national Association has begun to pull together reports of efforts
we are making to have our mayors and our Governors work with
our agencies to address that kind of climate I am speaking of. The
climate is to change, to the best of our abilities with our mayors
and Governors — I want to keep emphasizing with the mayor and
with the Governor, because unless the leadership of the country is
involved, nothing will happen — to work to alter attitudes.

In Connecticut, for example, young schoolchildren are explosed
to Klan literature, recruiting. Our penal institutions, the inmates
are exposed to recruiting efforts by Klan people and other right-
wing organizations.

Mr. CoNYERS. At what prisons?

Mr. Green. Our prison, meaning our State institution at Somers.

Mr. CoNYERS. Are there others in the country in which Klan ac-
tivity and recruitment has been reported?

Mr. Green. My colleagues tell me that around the country there
are incidents of recruiting going on in our major Federal prisons as
well as our State institutions. Some of the outbreaks of violence — if
one could get a handle, do a thorough investigation — we suspect we
could trace the violence we are now hearing about and have previ-
ously heard to incidents of racial agitation within the prison con-
fines.

Mr. CoNYERS. Do you have access to or can you get any informa-
tion with regard to the recent prison disturbances that hit Michi-
gan and other places in the country?

Mr. Green. I have asked my colleague in Michigan, Ruth Rass-
mussen, head of that agency to try to get such information. We
need to, I think, provide the country with that kind of information.
Our organization is perhaps unique in that we are so spread out,
we can gather the data. We will have a little more difficulty get-
ting that information with respect to the prison incidents as op-
posed to the more general population.

i| Some of us sat on our State criminal planning agencies that allo-
cated and dispensed the Federal LEAA funds up until recently.
That gave some of us an opportunity to take a close look at where
the Federal dollar was going in the criminal justice system. I sit on
the Connecticut one. It is a difficult role to play, because you are
also outvoted for hardware as opposed to other kinds of use of the

11-647 0-83-13

190 I

I
1

Federal dollar. The Chair is very familiar with this effort at thej
Federal level. i

Let me point to the very serious nature of what the Klan andl
other rightwing groups are doing to young people. I guess I am con-j
cerned in a very particular way about what our young people,|
black and white, will feel and do. The attacks on an affirmative]
action is clearly a part of the kind of climate I am referring to that
encourages this activity.

Those young people, white people that feel insecure and inad-j i
equate about their own ability to achieve, those are ripe targets,}
sir, for recruiting efforts. When you point out to people that blacksj
or Hispanics or Chicanos or women are getting the jobs or promo-i
tions merely because they are black, women, Chicanos — as opposedl
to qualifications — that kind of statement encourages violent acts,}
encourages recruitment. Therefore, it follows to me that we must
work hard at the level where young minds are developing in)
schools. We must encourage the clergy in our country to counteri
those statements in their Sunday and/ or Saturday opportunities.!
We must encourage our business community, the leadership of thej
corporate structure, to counteract what happens in Connecticut,!
We get, in our office, for example, occasionally leaflets printed on;
mimeograph perhaps from a factory where there's anti-Semitism,^
antiracist remarks made. I can't believe, sir, that the factory man-j
agers or the corporate structure are not aware of what is going on

We need to — we meaning the Government, Federal, State and:
local government, ledership must counteract that by affirmative^
positions. We are working with the Governor of Connecticut pres-j
ently to bring about a statewide effort in this regard involving thei
clergy, the corporate structure, the legal profession, and others;
that will work in an affirmative way to counteract that.

We made some progress, perhaps, in our State. We at the State
Commission on Human Rights might be seen as not having enough
authority in the criminal area. Well, rightly so. We are not a crimi-
nal justice type agency. We are civil in nature. Our authority is to"'
look at the complaints of discrimination. But we, sir — and I thinkia
this is part of the answer to several of your questions this morn-j
ing — you can pass laws, but then if you don't have the right people |
in the job, things don't get done. So we have advocated through our
hearings and the hearing I referred to earlier on cross burnings!
and other related violence in Connecticut, we advocated that the{
legislature in Connecticut pass laws dealing with the problem. We
have been successful, at least in a couple of instances. In one we
were successful in getting a law passed and signed into law a law
that makes cross burning on private or public property, with cer-,
tain exceptions, a class A misdemeanor. We were successful recent-
ly in having moved through the legislature a bill that would:
outlaw paramilitary camps. It is my information that as of yester- 1
day that Governor O'Neill, has signed that bill into law. i

Those two bills are attached to my statement. The paramilitary!
camp bill and the bill making cross burning a class A misdemean-j
or, a crime.

Mr. CoNYERS. This is very interesting to me. I

Mr. Green. That is an effort a State and local agency can takei
through its advocacy role. My point is don't look to exclusively thei

191

criminal system to bring this about. We need to be encouraged to
do this, however. We need to be encouraged by the Federal system.
We need to since there is support for what we are doing. My state-
ment to you is that across the board, with respect to the Federal
agencies, that support is not there.

Finally, I would like to conclude with the human rights agencies
in this country are very eager, very anxious to work with this com-
mittee, because we applaud what you are doing. We are very anx-
ious to work with our Federal counterparts to coordinate, reduce
the duplication, and to husband somewhat the scarce resources
available to us. The evil that will visit us if we don't do something
like that is horrendous. Our society, I think, is rapidly being torn
apart, not because blacks and others are getting the lion's share of
the resources; quite to the contrary. It is not because the minority
people are getting advantages over whites as it is promoted and it
does form a basis of some of the violence. You can trace the men-
tality, the motivating factors. You find that this is not unlike what
happened in mankind's history over the years where a group was
singled out as being responsible for the economic conditions.

I don't want us to take that too lightly. Many people, including
Congress people and legislators, take too lightly that analysis that
some of us are being blamed for the economy having difficulty.
Some of us are being blamed for all kinds of conditions. It is very
easy to do that with people that are insecure and inadequate. A
black psychiatrist in New Haven, Conn., at Yale, Dr. Cormer, testi-
fied before our hearings and his testimony, sir, is included in our
report to you. I urge you to read his testimony which constitutes an
analysis of the personality that is prone to commit acts of racial
and religious violence.

He submits to us that the country is replete with such persons.

I want to thank you for the opportunity.

Mr. CoNYERS. We appreciate your testimony. You say support
isn't there. When you say that, what do you mean?

Mr. Green. I am sorry?

Mr. CoNYERS. What did you mean when you said the support for
our programs isn't there?

Mr. Green. The fact that I have had the single experience of 7
years now of visiting or trying to visit with Federal officials to, one,
share our experiences and get their experiences so we can work to-
gether, the reception has also been either indifference, cold, or not
at all. We are not asking for money. We are asking would you meet
with us, talk about our respective efforts.

Mr. CoNYERS. Have you met with the new President?

Mr. Green. I have not, sir. We have written to the President
asking for an opportunity to elicit his support and his interest in
our local and State effort. We are looking forward, though, to in
July, some of the senior officials of the Federal Government visit-
ing with us in Dayton. Yet we haven't had a full response from all
of them. We are encouraged so far.

Mr. CoNYERS. You have to be very careful and write them very
solicitous letters so that it doesn't seem like they are going to be
baited or attacked or otherwise harassed. You have to take a con-
5 ciliatory carrot versus a stick approach to get them.

192 !

Mr. Green. Yes. That's what we have done. Once there I can |
never promise that one is not going to be questioned carefully by j
my colleagues that feel strongly about these issues.

Mr. CoNYERS. Let's talk about some of the agencies. i

Mr. Green. One, I am not so convinced that the emphasis ought j
to be placed upon new law, new regulation, but rather emphasis is |
on enforcing what is there in a very creative and affirmative way. I ,
say this to my colleagues also at the State and local level, too. {
That, to me, calls for the right kind of person. I guess I am, as a :
student of public policy, one has to look closely at who gets ap- !
pointed; what one brings to the job. Obviously, you can decide you j
are not going to have laws enforced by putting in positions people i
of certain personalities and certain characteristics. So it behooves, I '
think, the appointing authorities certainly and the people that rec- 1
ommend people to see to it that those of us that are appointed care, '■
care in a very creative, constructive manner. We don't always see |
that happening in the Federal level. We see ranging from the ap-
pointments of persons having virtually no qualifications at all in
the area to those persons that have outright declared their hostility
to the program.

Mr. CoNYERS. What kind of positions are you talking about in
the Government? Appointed to what?

Mr. Green. Well, I mean to head up the various civil rights func-
tions in the Federal agencies primarily. We have, for example, at-
tempted to work with the Office of Management and Budget. To
most civil rights people, that office doesn't seem to have too much
to do with all of this. But if you look closely at what 0MB does, it
has a very critical function and role to play with respect to the
Federal budget. It has within its structure an office to deal with
the civil rights activities of all the other Federal agencies in a co-
ordinating way.

As you know, the review function of a budget is a very vital one
in terms of getting an agency to do something or not do something.
That office to me is a very difficult office to move in terms of look-
ing at the civil rights responsibilities of the Federal agencies.

The U.S. Commission on Civil Rights has said that repeatedly in
its various reports over the years. That 0MB could play a more
vital role in the coordinating and enforcement of the Federal law.

Mr. Conyers. Have you had occasion to rate the cities and the
States in terms of their human rights structure? Is there some way '■
we could find out who is doing a fair job? |

Mr. Green. The association itself attempts to avoid rating each
other, but certainly we could provide you with a statement on what
the various State and local commissions' powers are, our range of
responsibilities, and our accomplishments, our — the evolution of us,
I guess, is up to someone else in a way. Our constituencies, for ex-
ample, back home are the people that are usually discriminated ,
against. They, indeed, rate us.

I guess in a way we are rated by the fact that EEOC and HUD, i
for example, defer cases, housing complaints or employment cases, !
to certain State and local agencies and that deferral process is
based on a standard of whether or not we have laws and adminis-
trative policies and procedures comparable to the Federal level. |
That is a kind of evaluation. So when EEOC decides that it will ;

193

defer a case to a State agency, and pay for its processing, that's a
kind of evaluation. The standard there being the Federal one. I am
not so sure, though, that that is an altogether valid standard. We
have probably developed far beyond the Federal capacity in some
States in this country, both in terms of our technical ability as well
as our commitment.

Mr. CoNYERS. Frequently in Detroit I hear the complaint that
the Civil Rights Commissions are a joke because, first of all, they
are backlogged. Most people have forgotten about the case, gotten
another job, and don't even have time to be bothered by the time
their case gets attention. Then there's a lot of bad counseling going
on. I am speaking from a limited perspective. But if you were to be
rated by my constituents or the Human Rights Commission were to
be rated by my constituents, that rating would be very poor.

Mr. Green. I am sure that's the case across the country. I am
sure if you asked the constituents of all the commissions in the
country — even those I might think are the best ones — I am sure
you will get criticisms of our efforts. I am somewhat familiar with
the Detroit commission, as I am the State commission. I know the
personalities there. I am speaking of the increasing criticism grow-
ing against the various State agencies, the big ones, particularly
those, sir, that are functioning in industrial States and industrial
communities with high employement. That is indeed Michigan. So
the Michigian State Commission, Ruth, down in Grand Rapids,
Bobby Butler, our director there, the Detroit head, they are all ex-
periencing hostilities from the very people they should be trying to
work with, of course. But it has to do with — and we don't want to
take it out of context— it has to do with the fact there is no support
for what we are doing. There is no support at the political level
from the Governors' offices on down. No support from our legisla-
tive bodies. And very little understanding and knowledge of what
we are trying to do by the local citizens themselves. We can do so
much in terms of informing people, but there have to be decisions
made in terms of allocations of resources. It is a problem of prior-
ities, where we are willing to put our scarce dollars.

We don't seem to be willing to put them in civil rights activities.
Also at the Federal level that's the case, too. The Federal budget,
we looked at it with respect to where the recommendations are for
cuts and increases. Those recommendations or increases are not in
the civil rights area at all and that is going to impact us at the
local level, by the way, because we are somewhat dependent on
some Federal agencies for some fiscal support.

Mr. CoNYERS. To what extent do your organizations become in-
volved in racially motivated violence?

Mr. Green. More and more so. Involved to the extent that we —
some of us varying with the law of the local ordinance, we are be-
ginning to collect data and information, for example. That is a very
valuable thing to do, because there has been no central source at
least among civil rights agencies where you can go for information.
We have also begun to exercise our authority and power to conduct
hearings on the subject such as Connecticut did, such as New York
City has done, such as Pennsylvania and Kentucky, a number of

194

State and local agencies are exercising the factfinding hearing
power which is valuable, because once you conduct a good hearing,
you have information which can be used for additional legislation
or criminal action. |

We have turned over our reports, our results of hearings to the i
criminal justice side and that has resulted in various kinds of activ- 1
ities. We also get involved by working closer, or trying to, with the |
criminal side of the system, the criminal prosecutors, States attor- !
ney's office. I

In our State, for example, we have developed a strong working
relationship, but we are lucky also that that is a man that cares. I }
have to keep saying that, because without a man that cares, a|
woman that cares on the job, no amount of effort probably pays off. I
We don't have the authority, as you probably know, though, to|
take actions directly, so our working with involves primarily at-;
tempting to monitor and to work with community organizations toi
bring about a better climate. So our role is largely an educational ]
one when it comes to this subject matter. j

Mr. CoNYERS. Finally, are there divisions of philosophy about!
how the human rights commissions are to operate within your or-i
ganization? Are there some on the left and others on the right, con-
servatives, progressives. How does that break down? |

Mr. Green. Our division is not so much left and right as it is j
more vertical. It is more a problem, a division with respect to',
should we be more tough-minded, law enforcement, seeking the
hard decision with the full remedy to make the victim whole?
That's one discussion that goes on. I guess you might call that the
left, if you will. Then there's the other argument that attempts to
observe that our climate, politically, is so offensive, so oppressive, i
that to be tough minded would bring about great recriminations !
and probably put us out of business; and that group advocates
then — you primarily adopt a more conciliatory educational role !
than the law enforcement one. {

I would say, sir, the bulk of the State commissions of the country f
are clearly in favor of a clear, strong law enforcement approach;'!
that is processing those complaints as rapidly as possible, seeking i
full redress, and/or involving ourselves in systemic class action I
cases. That's the tough law enforcement approach. We say the ret-
ribution or retaliation be damned; we will still pursue that course I
of action because we read the law to mean that, we read the Con- \
stitution to mean that. j

The other side would argue if you do that you are going to put i
yourselves out of business because the political climate is too offen- 1
sive. The trust is somewhere in the middle. We find ourselves '
within a given agency doing some of both. I know we do, but the \
left and right is not in terms of conservatism versus liberalism. I
The conservative people in our field by and large find themselves i
so outnumbered, so out argued they don't come to meetings, they
don't show up, or they don't participate, they don't exist in our .
business. '

What you probably experience in Detroit, sir, is not a conserv-
ative staff and commissions but more lack of help, lack of re- |
sources. The same problem exists at our level as I spoke of earlier

195

at the Federal level. Some people are appointed to our field, to our
jobs and they really shouldn't be there by virture of personality.
, Mr. CoNYERS. You have been very helpful. Thank you very much.
[The prepared statement of Mr. Green follows:]

196

state;^'Ent of Arthur l. o riE Eii. director of

COi^NECTIClJT COmiSSION ON HUflAN RIGilTS-.-ANP OPPORTUNITIES

My name is Arthur l, Green. I m presently on the Ijoapd of Director
OF THE International Association of Official Human Rights Agencies, Inc. I
I AM also that Association's Liaison with the Federal Government's I

Agencies, including the Justice Department, which have civil rights law I

enforcement responsibilities. I have been the Director of the ConnecticlI

I
Commission on Human Rights and Opportunities since 1966 and have worked ]

actively in civil rights law enforcement for many years, i am pleased i

TO TESTIFY BEFORE THIS SUBCOMMITTEE ON CRIMINAL JUSTICE OF JhE HoUSE CCWITTEE (

THE Judiciary as it continues its hearings on racial violence. Spe-
cifically^ I have BEEN asked TO COMMENT ON THE NEED FOR MORE FEDERAL
ACTION TO COMBAT VIOLENCE AGAINST RACIAL AND ETHNIC MINORITIES AND ON
THE ATTITUDE OF STATE AND LOCAL CIVIL RIGHTS ENFORCEMENT AGENCIES TOWARD
INCREASED FEDERAL INVOLVEMENT IN THIS KIND OF CIVIL RIGHTS E;,'FORCEMENT
ACTIVITY, In my CAPACITY AS FEDERAL LlAISON FOR THE INTERNATIONAL ASSO-
CIATION OF Official Human Rights Agencies, I have had numerous discus-
sions WITH THE Directors of state and local commissions across the
country. The great majority of state and local leaders with whom L
have discussed the matter, believe that increased federal enforcement
activity is imperative.

In recent years there has been a significant increase in violence
against Blacks and other minority groups. Blacks and members of other
racial, ethnic and religious minority groups across this nation are

faced with REPORTS OF RACIALLY AND ETHNICALLY MOTIVATED VIOLENCE AND

I
i

197

EVEN MURDER ON AN ALMOST DAILY BASIS, PuRTHER, ORGANIZATIONS OPENLY
COMMITTED TO RACISM^ TO ANTI-SEMITISM, AND TO ACTS OF RACIAL AND ETHNIC
VIOLENCE, HAVE INCREASED THEIR RECRUITMENT EFFORTS AND THEIR ORGANIZA-
TIONAL ACTIVITIES, The leaders of THESE GROUPS TRAVEL FROM STATE TO

state recruiting members and spreading their message of hatred and
violence. •

In Connecticut increased reports of R'^.cial and ethnic violence
LED ThE State Commission on Human Kights and Opportunities to conduct

A study which included lengthy PUBLIC HEARINGS ON VIOLENCE AGAINST
minorities in the STATE, ThE HEARINGS WERE HELD IN I^'OVEMBER AND DECEM-
BER 1C79 AND A REPORT TO THE GOVERNOR WAS ISSUED IN APRIL 1980. A
COPY OF T^-IS REPORT 'S BFING SURMITTED TO CHAIRMAN CONYERS AND COPIES
OF TH"" REPORT'S T'TL- PAGES ARE ATTflCHFn TO THIS STATEMENT. ThE REPORT
CONCLUDED THAT, IN RECENT YEARS, AND IN PARTICULAR SINCE 1973, CONNECT-
ICUT HAS EXPERIENCED A SIGNIFICANT INCREASE IN THE NUMBER OF INCIDENTS
MOTIVATED BY PREJUDICE, SPECIFICALLY CROSS BURNINGS, TERRORISM, VAN-
DALISM TO PROPERTY AND HARASSMENT. ThE REPORT FURTHER FOUND THAT HATE
LITERATURE ORIGINATING OUT OF STATE HAS BEEN INCREASINGLY USED FOR RE-
CRUITMENT PRUPOSES AT Connecticut schools, factories and shopping areas.
Louisiana-based Klan groups have mailed hate literature and membership
materials, including Ku Klux Klan membership cards and costumes, to
Connecticut residents.

The Connecticut legislature responded to escalating racist activity
by passing two bills. One, passed into law in 19"0, makes it a class a
misdemeanor for any person to burn a cross on public property or on
private property not owned by that person, without the written consent
of the property owner. The law further prohibits desecration of public

AND private property, INCLUDING HOUSES OF WORSHIP AND CEMETARIES, ThE

198

second bill. an act concerning paramilitary campsy was passed during j
this legislative session and is now awaiting the governor's signature.

Copies of these bills are attached to this statement, i

But even with such laws, the states cannot combat this rising tide j

of racism alone. ;Iationally known Klan leaders such as David Duke and j

Bill Wilkinson have traveled to Connecticut and to other states to |

organize rallies and to recruit supporters, Heavily armed Klan con- ;
tingents have arisen in several states and have used their weapons to

injure and to kill unarmed ANTI-KlAN protestors and minorities, lilLKIN-
SON HAS openly ACKNOWLEDGED THE EXISTENCE OF PARAMILITARY TRAINING

camps where Klan members are being trained for armed attack on the

MINORITY populations OF THE UNITED STATES, ThESE CAMPS ARE REPORTED

to be presently operating in five states,

Last September. Mr, WiLkinson appeared at a weekend rally held in
A small Connecticut town and organized by his group. He then left
the state. But October and iJovember brought an increase in racially
motivated harrassment and violence. Several crosses were burned on
THE lawns of Black owned homes in nearby towns, and at least one Black
Connecticut family suffered the trauma of being at home when their house

WAS FIREBOMBED IN A RACIALLY MOTIVATED ATTACK, 1'HETHER THE PERPETRATORS
OF THESE ACTS ARE MEMBERS OF THE KlAN OR OF OTHER ORGANIZED HATE GROUPS,
THEY ARE, WITHOUT A DOUBT, INFLUENCED BY THE ATMOSPHERE OF RACIAL VIO-
LENCE AND HATRED FOSTERED BY THE KlAN AND BY SIMILAR ORGANIZATIONS,

In these TIMES OF INFLATION AND OF ECONOMIC UNCERTAINTY, PEOPLE'S
MINDS BECOME MORE VULNERABLE TO THE KIND OF RACISM AND SCAPE-GOATING
THAT RESULT IN RACIAL, ETHNIC AND ANTI-SEMETIC VIOLENCE, THEREFORE, THE
ACTIVITIES OF RACIST GROUPS AND INDIVIDUALS MUST BE TAKEN MORE SERIOUSLY

199

We do not subscribe to the notion that the proper way to reduce racial

TENSION IS to retreat FROM THE NATION'S COMMITMENT TO RACIAL AND ETHNIC
EQUALITY Ai^D JUSTICE, We CANNOT STOP OUR EFFORTS TO AFFIRMATIVELY RE-
DRESS THE INJUSTICES WHICH STILL SURVIVE AmERICA'S LONG AND NOT YET
SUCCESSFUL BATTLE AGAINST DISCRIMINATION AND PREJUDICE. RatHER, WE MUS
FORCEFULLY PURSUE FULL EQUALITY FOR AmERICA's MINORITIES AND WE MUST

also vigorously proscribe acts of violence and destruction motivated by
hatred and prejudice.

The full force of both federal and state law and resources must be

UTILIZED to protect THE SAFETY AND THE CIVIL RIGHTS OF OUR MINORITY

POPULATION, Every American, whether black or white, must understand

THAT both his STATE AND HIS FEDERAL GOVERNMENT WILL NOT TOLERATE RACIAL
based VIOLENCE, HARASSMENT AND MURDER, ThE FEDERAL GOVERNMENT MUST
ENGAGE IN FULL AND SWEEPING ENFORCEMENT OF THE FEDERAL CIVIL RIGHTS
STATUTES, BOTH CRIMINAL AND CIVIL, PARAMILITARY CAMPS TRAINING RECRUIT
FOR A RACE-WAR MUST BE ELIMINATED,

It IS DIFFICULT TO IMAGINE THAT ANY LEGITIMATE STATE OR LOCAL CIVI:
RIGHTS AGENCY WOULD DO OTHER THAN APPLAUD A RENEWED FEDERAL COMMITMENT
TO ENFORCEMENT OF THE LAWS PROTECTING THE RIGHTS AND SAFETY OF OUR
MINORITY POPULATION, StATE AND LOCAL HUMAN RIGHTS AGENCIES WILL DO
ALL THAT THEY CAN TO COMBAT RACISM, In CONNECTICUT, THE StATE COMMIS-
SION ON Human Rights and Opportunities is working with Governor O'iIeill
TO establish a committee to counter extremist hate group activity and prof
ganda. Similar state and local committees are working in cofiMUNiTiES

across the country to combat racism and ANTI-SEMITISM. 3uT THE STATES
ACTING ALOI.'E CANNOT SUCCESSFULLY COMBAT THIS NATIONWIDE THREAT TO OUR

SOCIETY, Federal help is needed.

200

When racial violence is strongly and firmly opposed^ racial inci-
dents DECREASE IN NUflBER AND SEVERITY, WhEN GOVERNMENTAL AUTHORITIES

are indifferent, violent racists step up their activities and people
uncertain as to whether they should participate in discrimination and
violence take governmental inaction and indifference to be approval.
This escalating violence cannot be ignored by the federal government,

FOR unless the GOVERNMENT TAKES FORCEFUL AND COMMITTED ACTION, RACIAL

and ethnic violence and hatred will destroy our society.

Vigorous federal enforcement of the basic civil rights and safety
OF America's minorities will send a strong message to the people of
this nation, It will serve to assure victims of racism that America

WILL NOT tolerate RACIAL TERRORISM. It WILL SERVE TO ASSURE THOSE
COMTEMPLATING RACIAL VIOLENCE THAT AMERICA WILL NOT CONDONE AND WILL,
IN FACT, PUNISH SUCH ACTIONS. StATE AND LOCAL CIVIL RIGHTS ENFORCEMENT
AGENCIES CAN WORK IN COOPERATION WITH THE FEDERAL GOVERNMENT. BUT THE
RISE IN VIOLENCE IS ALARMING AND THE CRISIS IS A NATIONAL, RATHER THAN
A LOCAL ONE. ThE RESOURCES AND THE SOCIETAL FORCE OF ALL LEVELS OF
GOVERNMENT MUST BE USED TO COMBAT THIS EVIL.

201

Substitute House Bill No. 5060
PUELTC ACT NO. RQ-SU
.\N ACT CO'^CERNING THE DESECRATION OF PROPERTY

?e it enacted by the Senate and House of
Representatives in General Assembly convened:

Section 53-34 of the general statutes is
repealed and the following is substituted in lieu
thereof:

iiL '^'^y person who subjects, or causes to be
subjected, any other person to the deprivation of
any rights, privileges or immunities, secured or
protected by the constitution or laws of this
state or of tho Hnited States, on account of
RELIGION, NATIONAL ORIGIN^ alienage, color, race,
sex or blindness or physical disability, as
defined in section 1-1f, shall be guilty of a
class A misdemeanor.

ih]_ ANY P'^PSON WHO INT'^ NTICN ALLY DESECRATES
ANY PUBLIC PROPERTY, HONUriENT CP STRUCTURE, OR ANY
RELTGTOnS OB.^'ECI, SYMBOL OR HOUSE OF RELIGICDS
WORSHIP, OR ANY CEHETEEY, OR ANY PRIVATE STRUCTURE
NOT OWNED BY SUCH PERSON, SHALL BE IN VIOLATION OF
SUBSECTION (a). ~CR PURPOSES CF THIS SUBSECTION,
"DESECRATE" '^EANS TO MAR, DEFACE OR DAMAGE AS A
DEMONSTRATION C"^ IRREVERENCE CR CCNTEMPT.

_[cl_ ANY PERSON WHO PLACES A BURNING CROSS CR

A SIMTLATION THEREOF ON ANY PUBLIC PROPERTY, OR ON

ANY PRIVATE PROPERTY WITHOUT THE WRITTEN CONSENT

OF THE OWNER, SHALL BE IN VIOLATION OF SUBSECTION

(a) .

Certified as correct by

Legislative Commissioner.

Clerk ni the Senate.

Clerk nj the House.

Approved April l8_. i980

Governor.

202

Substitute Senate Bill No. 304
PUBLIC ACT NO- 8 1-243
AN ACT CONCERNING PA R A MIL ITA RY CAMPS.

3e it enacted by the Senate and House of
Representatives in General Assembly convened:
(NEW) (a) As used in this section:

(1) "Civil disorder" means a public
disturbance involving acts of violence by a group
of three or more persons which causes an immediate
danger of or results in damage to the property of
or injury to any other person.

(2) "Explosive or incendiary device" means
(A) dynamite and all other forms of high
explosives, (B) any explosive bomb, grenade,
missile or similar device, and (C) any incendiary
bomb or grenade, fire bomb or similar device,
including any device which (i) consists of or
includes a breakable container which contains a
flammable liquid or compound and a wick composed
of any material which, when, ignited, is capable of
igniting such flammable liquid or compound, and

(ii) can be carried or thrown by an individual.

(3) "Firearm" means a firearm as defined in
section 53a- 3 of the general statutes.

(b) No person shall (1) teach or demonstrate
to any person the use, application or making of
any firearm, explosive or incendiary device, or
technique capable of causing injury or death to a
person, knowing or intending that such firearm,
explosive, incendiary device or technique will be
unlawfully employed for 'use in, or in furtherance
of, a civil disorder; or (2) assemble with one or
more persons for the purpose of training with,
practicing with or being instructed in the use of
any firearm, explosive or incendiary device, or
technique capable of causing injury or death to a
person, intending to employ unlawfully such
firearm, explosive, incendiary device or technique
for use in, or in furtherance of, a civil
disorder.

(d) Nothing in this section shall make
unlawful any act of any peace officer, as defined

203

Substitute Senate Bill_Nc. 304

in section Sla-"! of the general statutes,
performed in the lawful discharge of his official
duties .

Certified as correct by

Legislative Commissioner.

Clerk of the Senate.

Clerk of the House.

Approved > 1981

Governor.

-2-

204

Report of
Incidents of Cross Burnings
and Vandalism Motivated by
Racial and Religious Prejudice
in Connecticut

Findings and Recommendations

of the
Connecticut Commission on
Huma n Rights and Opportunities

Ap r i 1 1 980

205

COMMISSIONERS
OF THE
CONNECTICUT COMMISSION ON HUMAN RIGHTS
AND OPPORTUNITIES

Attorney Clarance J. Jones, Chairperson, New Haven

Yolanda Barrett, Deputy Chairperson, Winsted

Otylia Malinowski, Secretary, Madison

William J. Brown, Hartford

Pedro F. Delgado, Bridgeport

Del ores P. Graham, West Haven

Karl Honsberger, Guilford

Attorney M. Philip Lorber, Westport

Reverend Christopher L. Rose, New London

Leonor Toro, Bridgeport

Reverend A. Roger Williams, Bloomfield

Arthur L. Green, Director

Angel T. Serluco, Assistant Director

Philip A. Murphy, Jr., Commission Counsel

11-647 0-83-14

206

SELECT PANEL

Attorney M. Philip Lorber, VJestport, Chairperson

Karl Honsberger, Guilford

Reverend Christopher L. Rose, New London

Attorney Clarance J. Jones, New Haven, Chairperson of the

Connecticut Commission on Human Rights and Opportunities, ex officio

Philip A. Murphy, Jr., Commission Counsel

"All that is necessary for the
triumph of evil is that good men
do nothina." Edmund Burke.

207

TABLE OF CONTENTS

Page

Foreward ^^

Preface ^

I. Introduction and General Discussion 1

II. Discussion of the Findings ^

III. Discussion of the Recommendations 46

Conclusion

Appendix:

Samples of Testimony Received 52

List of Reported Incidents |^^

List of Witnesses ]':'

List of Exhibits ^^'^

208

FOREWARD

"The people of Connecticut are outraged and deeply concerned by
the rash of racially provocative incidents which have occurred re-
cently in our state and region.

Art Green and the Commission on Human Rights and Opportunities
are to be commended for providing this statewide forum on this ur-
gent matter.

The actions by a few who burn crosses or seek to organize on
b°half of groups which profess hatred are deplorable. It is clear
that these actions have no place in our society. They are totally
unacceptable.

Cross burnings and other acts of racial violence are condemned
by all responsible persons who believe that our society must be
based upon racial justice and harmony. An attack against the dig-
nity of any one person is an affront to us all. We in New England
and in the entire country must react quickly and strongly against
any insidious attempts to pit one racial or ethnic group against
another. . .

As we approach a new decade, it is appropriate to reflect upon
the life and actions of the Reverend Dr. Martin Luther King, Jr.
Though confronted with violent attacks, arrests and threats to his
life as he sought to bring an end to social injustice. Dr. King
steadfastly adhered to a philosophy of non-violence. The words he
spoke nearly 18 years ago at the Lincoln Memorial remain an in-
spiration to us this day. He said then, 'Now is the time to rise
from the dark and desolate valley of segregation to the sunlit path
of racial justice. Now is the time to lift our nation from the
quicksand of racial injustice to the solid rock of brotherhood'.

Our work here in Connecticut toward Dr. King's goals is not
yet accomplished. We have come far from that day at the Lincoln
Memorial, but we must recognize that there is much left to be done.
What we say at this Commission hearing will assist us as we pre-
pare to face the challenges of our future."

Testimony of Ella Grasso, Governor, by Lee Hawkins,
Special Assistant, Hartford hearing, page 6.

209

PREFACE

The Connecticut Commission on Human Rights and Opportunities, at its regu-
lar monthly meeting held October 18, 1979, voted to empanel a committee of Com-
missioners to conduct fact-finding hearings during November and December in
Danbury, Norwalk, Bridgeport and Hartford. The hearings were convened Novem-
ber 13, 1979 at the Danbury Regional Center, November 20, 1979 at the Norwalk
Community College Continuing Education Center, November 26, 1979 at the Bridgeport
Gas Company and December 14, 1979 at the State Capitol. The purpose of the hear-
ings was to compile facts relating to alleged incidents of cross burnings and
vandalism motivated by racial and religious prejudice and to thereafter report to
the Governor, the General Assembly, and other public and private officials and
organizations.

The following is the report on those hearings by the select panel of commis-
sioners. The report begins with a general discussion that culminates in five
specific recommendations supported by several findings of fact. Following the
general discussion is a separate discussion of each of the several findings of
fact and then a separate discussion of the recommendations. The report concludes
with samples of testimony received, a list of the reported incidents, a list of
the witnesses who testified, and a list of the exhibits submitted.

The Commission thanks all persons who have come forward to testify and who
have submitted written materials. The Commission also thanks the Danbury Regional
Center, the Norwalk Community College Continuing Education Center, and the Bridge-
port Gas Company. Special thanks and acknowledgement go to the Commission staff
members who conducted the field work, physical arrangements and logistics, secretarial
and clerical assistance, public relations work, a variety of coordinating activity,
and the review of many pages of verbatim transcription and preparation of the draft
report.

210

I. INTRODUCTION AND GENERAL DISCUSSION

Conuecticut has long been a pioneer in the field of civil and human rights.
The Connecticut General Assembly initiated some of the first legislation con-
cerning equality of opportunity under law when, in 1943, the bill giving the
Connecticut Commission on Human Rights and Opportunities its birth as the
"Inter-Racial Commission" was signed into law by then Governor Raymond E. Baldwin.
Originally, the agency's powers were limited to compiling facts and reporting to
the Governor on violations of civil liberties and other related matters. Today,
while its duties include the processing of often complex claims filed under
various Connecticut statutes, the agency retains its historic fact-finding re-
sponsibility. The 1979 hearings were convened in the spirit of that early man-
date to seek out and report facts on issues of current public concern.

Newspaper reports and reports to the Commission from members of the public
on cross burnings and other related incidents encouraged the Commission, at its
regular October 1979 meeting, to establish a public forum for victims and other
members of the public to report on these incidents and to suggest how to go about
changing the social climate to prevent their recurrence. Special impetus for the
hearings came in an October telegram from then State Representative and now Mayor
of Danbury, James Dyer, and also in a request by the Connecticut State Conference
of the NAACP. Hearings were scheduled in Danbury, Norwalk, Bridgeport and Hart-
ford to provide ample opportunity for people to come forward. Scheduling of
further hearings in other locales was contemplated, but the Commission subse-
quently determined that the four scheduled hearings met the needs of the public.

211

Serving on the select panel of commissioners designated to conduct the
hearings were Commissioner M, Philip Lorber of Westport, Conmissioner Karl
Honsberger of Guilford, and Commissioner Christopher L. Rose of New London.
Commissioner Lorber was chosen by the Commission as the chairperson of the
select panel. Also serving as a member of the panel at the Danbury and
Hartford hearings was Commissioner Clarance J. Jones of New Haven, Chair-
person of the Commission on Human Rights and Opportunities. Commissioner
A. Roger Williams of Bloomfield joined the select panel for the Hartford
hearing and Counsel for the Commission on Human Rights and Opportunities,
Philip A. Murphy, Jr., joined the panel at all the hearings.

Before commencing the hearings, the select panel met to define the pur-
pose and scope of the hearings. The panel determined that the purpose of the
hearings was to elicit from the public facts relating to cross burnings and
other related incidents, and in particular, to determine whether there was
any indication of organized activity in support of the perpetrators of the
incidents. The panel further determined and announced through Chairperson
Lorber at the beginning of each meeting "...a very broad range of
opinion [would] be entertained in keeping with the fundamental principle
of free speech guaranteed by the Connecticut and United States Constitu-
tions." No group was singled out by the panel as subject of particular
inquiry; rather, certain areas of inquiry were to be explored with each
witness, and those areas of inquiry were the following:

Whether there has been a significant increase in incidents of
racial and religious prejudice; and if so.

What may be the cause of these incidents;

Whether any incident was part of a pattern or whether each
incident was a random act;

Whether there was any evidence of organizational activities in
support of incidents of racial and religious prejudice;

212

Whether Connecticut criminal statutes adequately serve as a
vehicle for prosecution of perpetrators of these incidents;

Whether state or municipal facilities have been used in fur-
therance of any of these incidents;

How persons have been harmed by these incidents;

What official and community response has been to these inci-
dents.

Questions posed by members of the select panel durinq the hearings were

designed to develop each of the several areas of inquiry.

The press and public were informed by way of a press release dated
October 31, 1979, of the various hearinqs. Letters of invitation were
specifically addressed to the Governor, chief executive officers and
chief law enforcement officers of the municipalities where the hearinqs
were to take place, and various other officials and community leaders.

The first hearing was convened in Danbury, November 13, 1979, at the
Danbury Reqional Center. Chairperson Lorber commenced the hearing as he
commenced the other hearings, first with a statement of the purpose of the
hearing, second with a statement of rules for the conduct of the hearing,
and third with an explanation of the statutory authority for the hearings.
Appearing at the hearing and providing sworn testimony were, among other
persons, then State Representative and now Danbury Mayor James F. Dyer;
Pasquale F. Nappi , Superintendent of Danbury Public Schools; Goldie Palmer,
Licensed Practical Nurse; Charles R. Gordon, Clergyman, Counselor, Educator
and President of the Waterbury Branch, NAACP; Gladys Cooper, President of
the nanbury Branch, NAACP; Joseph A. Moniz, President, George W. Crawford
Law Association; and Joshua M. Liburd, Community Relations Service Conciliator,
U. S. Department of Justice.

The second hearing was convened in Norwalk, November 20, 1979, at the

213

Norwalk Community College Continuing Education Center. Chairperson Lorber
again called the hearing to order. Appearing at the Norwalk hearing with
sworn testimony were, among other persons, Edward Brown, Executive Recruiter,
self-employed; Samuel L. Briggs, Executive Director of the Norwalk Human Rela-
tions Commission; Joseph W. Beres, Jr., Chief of Police, City of Norwalk,'
Woodrow C. Glover, Executive Director of the Stamford Commission on Human
Rights; Linda Davenport, nurse's aide; Bernard Fisher, President of the Green-
wich Branch, NAACP; and Wiley Bowling, Instructor, Fairfield Board of Education.

The Bridgeport Gas Company provided the meeting room for the third hearing.
That hearing was convened on November 26, 1979. Once again. Chairperson Lorber
presided over the select panel. The following were among those persons who
testified: Austin McQuigan, Chief Connecticut State's Attorney; Malcolm Web-
ber, Connecticut Regional Director, Anti-Defamation League of B'nai B'rith;
and Ben F. Andrews, Jr., State President, Connecticut Conference of the NAACP.

The Hartford hearing held at the State Capitol, November 14, 1979, received
as its first testimony a statement by Governor Ella Grasso through her Special
Assistant, Lee Hawkins. Richard Blumenthal, United States Attorney for the
District of Connecticut, testified as did Donald J. Long, Commissioner of the
Connecticut Department of Public Safety; Dr. James P. Comer, Professor of Child
Psychiatry at Yale Child Study Center and Associate Dean of Yale University
School of Medicine; George A. Athanson, Mayor of the City of Hartford; Richard
Tulisano, State Representative, and a host of other witnesses.

The testimony of all the witnesses, both victims of incidents and other
concerned persons, has been extremely enlightening to the members of the se-
lect panel. Some witnesses have come forward to testify to incidents that

214

have been directed against them personally and have thereby risked further
attack to themselves and their property. Their testimony shows
remarkable personal courage. The select panel extends its appreciation
to all the witnesses for contributing by their testimony - segments of
which are summarized in the Appendix - toward identifying and addressing
the problem before the select panel.

And what is that problem? The cross burnings and the other deplorable
incidents are the manifestation of the problem, but the clear consensus of
the witnesses was that racism is the problem. Witness James P. Comer sug-
gested that "The racial violence is at its deepest root a problem of poor
management of aggressive energy, and the poor management of aggressive energy
in very many cases is taken out and expressed against the most vulnerable
groups in our society." Witness Edward Brown explained, "Basically it comes
down to ignorance. It's ignorance and a lack of knowledge of other people."
And Witness Edward White, Jr., believes that "...the current resurgence of
racist activity has occurred within a framework of historical racism prac-
ticed by our civilization and a psychological framework of latent racism
which most, if not all, of us harbors individually."

If racism is the problem, then what's the solution? Recommendations
received by the select panel from the witnesses included human relations edu-
cation to students and to teachers, more specific statutory prohibition of
cross burnings and related incidents, strong official condemnation of such
incidents, desegregation of housing and schools, more severe penalties for
engaging in such incidents, better enforcement of the present statutes, victim
assistance, restitution to victims, more responsible media coverage of
incidents, and improved collection and analysis of data on incidents.
The select panel, upon its review of all the testimony and exhibits re-

215

ceived, recommends the following:

to local elected officials, to local law enforcement officials, to
local community leaders and to local and state school officials,
that they respond to the above referenced incidents swiftly and
with a strong public statement of disapproval, and that they
offer assistance to victims where appropriate;

to local boards of education and to the state board of education,
that all local boards implement human relations curricula designed
to foster good will among the racial and religious groups and
elements of the population of the State, in accordance with
C.G.S, Section 10-226g;

to prosecutorial officials, that criminal statutes that address the
above referenced incidents be rigorously invoked, so that persons
who would perpetrate such incidents will be on notice that engaging
in such incidents will, upon conviction, lead to incarceration or
fine;

to local and state law enforcement officials, that a clearing
house be designated and maintained for the collection, analysis
and dissemination of information regarding incidents of cross
burnings and vandalism motivated by racial and religious preju-
dice;

to the General Assembly, that it consider adopting legislation
addressing specifically incidents of cross burnings and swastika
markings.

These recommendations will be further discussed below.

These recommendations are based upon the several findings of fact

made by the select panel, which are the following:

One, that in recent years and in particular since 1978, Connec-
ticut has experienced a significant increase in the number of
incidents motivated by racial and religious prejudice, speci-
fically cross burnings, terrorism, vandalism to property, and
harassment;

Two, that the victims of these incidents have been and continue
to be seriously affected by them;

Three, that these incidents are not the result of any organized
activity within the state but were the random acts of individuals;

Four, that although in the majority of these incidents the per-
petrators remain unknown, where perpetrators have been observed
or apprehended they were said to be juveniles and young adults;

Five, that hate literature bearing out of state return addresses
has been widely distributed in Connecticut;

216

Six, that state and municpal facilities were the sites of
literature distribution and recruitment, but that no direct
official involvement has been shown;

Seven, that official and community response to these inci-
dents has been uneven;

Eight, that media coverage of these incidents is helpful but
often lacking in depth;

Mine, that among the underlying causes of these incidents are
economic insecurity, psychological disorder, and ignorance;

Ten, that there is a lack of human relations education to young
students, and to educators;

Eleven, that current Connecticut statutes available for the pro-
secution of these incidents are too broad to address the sensi-
tivities offended;

Twelve, that Connecticut lacks an adequate central data collec-
tion, analysis and distribution capacity to facilitate investi-
gation of these incidents and prosecution of the perpetrators.

These findings were adduced as follows: All testimony was transcribed.
The written transcript was reviewed page by page and a note card was com-
pleted identifying each issue raised by the testimony. The note cards
were then organized by related issues. The related testimony, identi-
fied by the note cards, was then brought together and read again for
consistency, persuasiveness, and relevancy to the purpose of the hearings.
Exhibits were then included for review. Finally, where a collection of
testimony and exhibits was persuasive and consistent, as well as relevant,
a finding was made. There was no rigorous cross examination of witnesses,
no verification of testimony other than by other witnesses at the hearing,
and no authentication of exhibits other than by other witnesses at the
hearing. However, all the testimony and exhibits were very carefully ana-
lyzed before our findings were made.

To demonstrate how the findings were conceived and to also give the
reader a taste of the testimony received, each finding is discussed in de-

217

tail below with reference to supporting portions of the transcript. And
following thatdiscussion is an explanation for each of the five recommenda-
tions of the select panel how it is supported by one or more of the several
findings. Finding #1 goes to the incidents themselves. That finding and
the related discussion follow,

218

II. DISCUSSION OF THE FIM DINGS

The Select Panel finds:

#1 That in recent years, and in particular since 1978, Connecticut
has experienced a significant increase in the number of incidents
motivated by racial and religious prejudice, specifically cross
burnings, terrorism, vandalism to property, and harassment .

Perhaps the most poignant testimony received by the select panel during
its four days before the public was the testimony from the victims of the
cross burnings and other related incidents. The victims lay before the panel
sobering accounts of terror and trauma, accounts that one would hope could
only be found today in history books or tales of a bygone era. Edward Brown
of Ridgefield told of Christmas Eve in 1978 when he and his family, during
holiday festivities in the kitchen of their home, looked outside and discoverec
a burning cross before their home. Linda Davenport of Stamford reported that
she and her family witnessed two cross burnings at their home during 1979, one
in June and one on the night of Halloween. Ms. Davenport recognized one of
the boys who placed the first burning cross at her home. Sheila C. Spigner
of Norwalk testified that at 11:30 p.m. on September 29, 1979, she looked
out the front window of her home and saw a fire truck arriving to extinguish a
burning eight foot cross that lay against the white column in front of her
home. Ms. Spigner stated: "We received damage to the house to say nothing
about the fear and the nervous tension that I've been under since the incident.'

Other people, not victims, came before the select panel and testified
about recent cross burnings in Connecticut. Commissioner of the Department
of Public Safety, Donald J. Long, stated that his department, through local
law enforcement officials, had determined that there had been seventeen cross
burnings in Connecticut in 1979. Sergeant William Schmidt of the Stamford
Police Department informed the panel of two cross burnings in Stamford other
than the two incidents reported by Ms. Davenport, Edward White, Jr., of New
Haven reported that a cross had been burned in New Haven on Edgewood Avenue

219

juring August, 1979, and Louise Etkind of New Haven testified that, also in
August, 1979, a cross burning occurred at the Henry Parker for Mayor head-
quarters in New Haven. Both Mr. White and Ms. Etkind also referred to cross
burnings in Milford, two in the early Fall of 1979.

Norwalk's Chief of Police, Joseph W. Beres, Jr., came before the select
panel and reported the cross burning at the Spigner residence, as well as one
other cross burning in Norwalk. Charles R, Gordon of Waterbury stated that a
cross was burned in Waterbury near the Holy Cross School when a Black family
moved into the area. Thomas Connally testified to a cross burning in New Britain,
also referred to by Allenstine D. Willis of New Britain. Superintendent of
the Bridgeport Department of Police, Joseph A. Walsh, reported by mail to the
select panel that one cross burning took place in Bridgeport at 36 Beacon Street
on September 30, 1979, and another occurred on September 11, 1979, at the end of
a runway at the Bridgeport Municipal Airport.

Cross burnings were not the only incidents of terrorism reported to the
select panel. Several Black families in the East Shore area of New Haven have
had to abandon any effort to settle in that community because of acts of vio-
lence inflicted upon them, according to witness Edward White, Jr. Mr. White
also stated that the same area has been the scene of unprovoked attacks on
Blacks by whites, including a busload made up primarily of children attending .
a church picnic at Lighthouse Point Park. Also, according to Mr. White, one
Black man was severely beaten when attacked by white youths when they came upon
him changing a flat tire on a public street in that neighborhood. These inci-
dents show that some Connecticut residents harbor a predisposition for racial
violence that even the most apathetic observer must find alarming.

Malcolm Webber testified at the Bridgeport hearing that within the last
year in the Town of East Haven a fire bomb was thrown through the window of a

220

house where a Black family was living. The house was located in an almost
all-white neighborhood. Mr. Webber stated that there were small children
living in the house, that the house was almost completely destroyed, but that
no one was injured. Edward White further testified that other acts of vio-
lence against Black families in the East Shore area included throwing rocks
through windows, slashing tires on the family's car and crowds of youths
gathering outside the residence and shouting, "C-et out, niggerl"

Five students dressed up in Ku Klux Klan robes cornered a young girl at
a Rocky Hill school during Halloween and chanted harassments at her. Although
some people would call the incident a prank, the girl was in deadly fear.
So testified Ben F. Andrews, Jr.. at the Danbury hearing. And in response
to a guestion to witness James Edler whether he had knowledqe of any incidents
of racial violence in the Danbury schools, Mr. Edler explained that only the
other day in a training program, a teacher shared an incident involving one
Black child in her class. Stated the witness, "When everybody oaired up to
go somewhere, to the art room, very few white children, but a significant
number, refused to touch the one Black child when it was time to hold hands.
I call that violence in terms of the psycholoqical effect." These examples
demonstrate that racial terrorism other than cross burnings plague the people
of our state today, even during an era of supposed heightened consciousness,
some fifteen to twenty-five years after the beginning of the modern civil
rights movement.

Vandalism to property, particularly to that of Black persons living in
predominantly white areas and Jewish religious leaders, was reported to the
select panel at all four hearings. The Martin Luther King statue in
New Britain suffered defacement, as did the Holocaust Memorial in New Haven.
Goldie Palmer told the panel that vandals marked KKK in some kind of acid ma-
terial on the steps leading to the front of her home and also marked a racial

221

slur on her driveway. Even after having the driveway redone, the slurs still
resurfaced. Several witnesses reported KKK markings on public buildings and
on local retail buildings. Louise Etkind and Edward White, Jr., spoke of KKK
markings on automobiles in Hamden and New Haven.

Although cross burnings, terrorism and vandalism to property are the more
frightening incidents of racism reported to the select panel, harassment and
slur motivated by racial and religious prejudice were also reported and further
demonstrate man's cruelty to those unlike himself. Wiley Bowling told of one
of his Black neighbors in Milford who on more than one occasion woke up, went
to the door, and discovered a skinned animal in the doorway or on the car.
Mr. Bowling also spoke of a young Black girl, a 6th or 7th grader, who was
assaulted by whites while waiting for the bus, and was then harassed by the
same two thugs while riding the bus for about a mile. The bus driver did nothing
to protect her. Several witnesses reported harassing phone calls to Black clergy
and other Black persons, and Ben Andrews told of the Conte School where markings
on the walls read "KKK are here" and "Colored people, we will kill you". Re-
marked Mr. Andrews, "And that is at the elementary school . " Other testimony
reporting incidents of harassment and slurs may be found at the Appendix to the
Report, Testimony in Support of Findings of Fact.

Cross burnings, terrorism, vandalism, harassment--all of these incidents
were reported to the select panel in persuasive and consistent testimony by
numerous witnesses, and that testimony has led the select panel to find that
in recent years, and in particular since 1978, Connecticut has experienced a
significant increase in the number of such incidents .

That these incidents occurred is one finding. But more importantly, what
has been the effect of this on the victims? That is the subject of finding #2
which follows.

11-647 0-83-15

222

The Select Panel finds:

#2 That the victims of these incidents have been and continue
to be seriously affected by them .

The select panel came very easily to this findinq from the testimony re-
ceived. Imagine sitting in your livina room or kitchen after dark or imagine
going to bed at night knowing that one or more people may, because of the color
of your skin, be about to place a burning cross up against your home or throw a
fire bomb through your front window. Imagine being a young child and wondering
as you leave for school in the morninq whether this will be the day when a group
of thugs because of your race descend uoon you with slurs and even physical at-
tacks or corners you in school all dressed in white robes and chanting harassments.
Even without testimony at the hearings on the effect of these incidents on the
N^ictims the select panel could take notice that victims would necessarily be so
affected.

Edward Brown, himself a victim of a cross burning, testified that the meaning
of the burning cross is clear to the victim and "...your imagination has a ten-
dency to run away with you. You're apt to think, well, what's going to happen
at night when you go to sleep and this and that and the other." Samuel L. Briggs,
Executive Director of the Norwalk Human Relations Commission, received calls from
the victims of the Norwalk cross-burnings and testified that the wife and mother
of the first family was "...at her wit's end, not knowing what to do, ever so
upset, very emotional, sometimes almost in tears and very shaken." Another wit
ness testified that his son had a series of bad dreams about the Klan once the
cross burnings occurred in his community. And Dr. Comer, Professor of Skilled
Psychiatry at Yale Medical School, explained that children are particularly af-
fected by acts of racial violence because in the early years of our lives we are
really trying to establish that we are people of value and "...when you receive
the feedback, whether it is from parents, neighbors, school teachers or others

223

in the society, that you are not a valuable person, you can diminish the self,
concept of that individual."

VJere the cross burnings "pranks"? Some newspapers were said to have so re-
ported the cross burnings and other incidents. The weight of the testimony be-
fore the select panel on the guestion was best summarized by Richard Blumenthal
who noted that "...Even a single such incident, whether a cross-burning or leaf-
letting or a veiled threat, is one incident too many, and must be taken seriously
and none can be dismissed simply as playful doings of pranksters or juveniles."

Communities can provide assistance to victims of racial violence, through
community officials, in the same way that communities conduct disaster relief.
So suggested witness James A. Fletcher at the Danbury hearing, Donald J. Long,
Commissioner of the Connecticut Department of Public Safety, endorsed for juvenile
first offenders probation with a requirement that the offender do some chores for
the victim. And Samuel L. Briggs recommended that in addition to strict penal
sanctions offenders convicted of cross burnings on private property be required
to attend a series of classes designed to provide them a more positive view of
minority people, just as some motor vehicle offenders are required to take a
certain kind of course.

On the basis of all this testimony, and also merely by taking note of the
violence of cross burnings and related incidents and the words of the very vic-
tims of these incidents who came before it, the select panel has found that the
victims of these incidents have been and continue to be seriously affected by them.

The harm to the victims is a serious enough matter. However, consider the
further impact of these incidents should they be found to be part of an organized
scheme. Discussion of that issue follows.

224

The Select Panel finds:

#3 That these incidents are not the result of any organized
activity within the state but were the random acts of
individuals .

Connecticut law enforcement officials came before the select panel and re-
ported on the results of investigations of the cross burnings and related Inci-
dents. Donald J. Long, Commissioner of the Connecticut Department of Public
Safety, informed the select panel that as of December 14, 1979, there had been
seventeen cross-burning incidents in Connecticut during the past year, but that
none of the incidents revealed any organized racist movement, at least as far
as could be determined and documented. Austin McQuigan, Chief State's Attorney
for Connecticut, stated that as of November 26, 1979, his office had not found
any hard evidence which would support a theory that a particular organization is
sponsoring the cross burnings. And Richard Blumenthal, United States Attorney
for the District of Connecticut, reported to the select panel at the Hartford
hearing that his office had encountered no hard or otherwise persuasive evidence
that any of the cross burninqs or related incidents is linked to organized ac-
tivity by any group, whether the Ku Klux Klan or any type of racial group.
Mr. Blumenthal went on to explain as follows, "That is not to say that the gen-
eral acceptance in our population, sentiments expressed by those groups or the
possibility of activity by such groups may not have played some part in inspiring
those kinds of incidents, but so far as the individuals involved as potential de-
fendants in prosecutions are concerned, we have found no evidence to link their
actions to the Ku Klux Klan.''

Edward White, Jr., President of the New Haven Branch of the NAACP,
Malcolm Webber, Connecticut Regional Director of the Anti -Defamation Leaque of
B'nai B'rith, and Ben F. Andrews, Jr., President of the State Conference of Con-
necticut NAACP Branches all supported that conclusion. Mr. White explained to
the select panel that although there is evidence that organized activity of ra-

225

cial hate groups is on the rise in Connecticut, so far the specific acts wit-
nessed probably have been committed on a random basis. Mr, Webber observed that
•. if there is no organization generating these racist, anti-semitic acts and they
1 are instead random acts, the acts show an undercurrent of latent racism and
I anti-semitism that is "terribly alarming". And Mr. Andrews cautioned that al-
j though there may not be an "organization" in the very strict sense of the word,
! there may nevertheless be a network of contacts and relationships that although
(difficult to identify does indeed support the cross burnings and related ter-
I rorist acts.

I The weight of the testimony before the select panel, then, supports a finding
that the incidents are not the result of organized activity. However, the select
; panel received plenty of testimony on hate organizations in Connecticut generally,
and the panel has found that testimony to be very enlightening. J. Michael Smith
informed the select panel that the Ku Klux Klan, organized in 1865 with the ori-
ginal intent "...to protect white people against black folks" has at one time in
different parts of the country been anti-Jewish, anti-Catholic, and anti-Irish.
Explained Mr. Smith, "You see, in the beginning, they have their roots in being
against or anti different ethnic groups."

Dr. Charles R. Gordon bemoaned the return to "...those shameful periods of
unprecedented brutality precipitated by terror groups such as the Ku Klux Klan
and the white citizens council, the 'Red Shirts', and the Knights of Camel ia
[who] were allowed to rape black women without question and any punishment im-
posed, and black men were lynched, castrated, set afire, dragged over the highways
and the byways, until the skin was worn away from their bodies and they begged
for the mercy of death to end their agony..."
I Exhibit B-2, entitled "Facts" and published November, 1979, by the Anti-Defa-
mation League of B'nai B'rith, set forth that the strength of the Ku Klux Klan
in America is now greater than it has been in more than a decade, registering

226

gains of 20 to 25 percent in overall menbership since March of 1978, and doubling
its non-member sympathizers during the same period. The exhibit also noted that
the Klan has become more violent and confrontational. Bernard Fisher, President
of the Greenwich Chapter of the NAACP, testified at the Morwalk hearing that in
Connecticut currently there are about two to three hundred members of the Klan
and one can join by submitting forty-five dollars with a photo. The Klan has
a centrally located computer that records membership and the applicant is a
member once he or she receives in return a membership card.

J. Michael Smith and Wiley Bowling both testified that they believed the
cross burnings may be an initiation ceremony for new members of the Klan.
James Dyer, then State Representative and now Mayor of Danbury, suggested to the
select panel that the Klan may have been involved in political cranks, most
notably the recent city election in Danbury. Mr. Dyer stated that there is an
active Klan group in Danbury and that members of the group have been active in
leafletting the area, specifically at Western Connecticut State College, in lo-
cal schools, and in the retail area, particularly on Main Street.

The Connecticut NAACP Update of Cross Burnings and Ku Klux Klan Activities
in Connecticut, exhibit H-12, brought much information before the select panel.
The Update states that the Knights of the Ku Klux Klan, a new group, has experience
growth in Connecticut and is essentially a mail order leaderless grouo that tar-
gets 15 to 22 year olds, using high schools, colleges and bars as locales for re-
cruitment. The Update compared the Knights with the United Klan. fonnerly the
leading Klan group in Connecticut which has just about disappeared except for a
few loyal followers and "...a small contingent but significant group who meet in
the Bridgeport area." Among other points the Update noted that there is a chance
that many acts committed by sick people may be attributed to the KKK and that
"...the infectious nature of hate and violence the Klan symbolizes could even be
more dangerous than the KKK to our society."

227

Thomas Wright and Ted Meekins both remarked at the long history of the Ku
Klux Klan in our country and compared the Klan's longevity with the short life
of the Black Panther Party. Mr. Wright noted that "...in five short years, the
judicial system and its extensions, the penal system, brought out all its vast
resources to bear on eliminating the Black Panthers as a power in the movement
for eguality. Yet today, 113 years after its inception, the Ku Klux Klan is
alive and well and its activities continue to be tolerated, dismissed as 'youth-
ful pranks'..."

The select panel has found the ample testimony on hate organizations in Con-
necticut ■^ery informative. However, all the testimony received persuasively and
consistently leads the select panel to find that the cross burnings and other re-
lated incidents are not the result of any organized activity within the state but
were the random acts of individuals.

Although the finding is that the incidents are not the result of any organ-
ized activity, the select panel does reserve various impressions of the indivi-
dual perpetrators of the acts. Those impressions are the subject of finding #4,
which follows.

228

The Select Panel finds:

#4 That although in the majority of these incidents the perpetrators
remain unknown, where perpetrators have been observed or appre -
hended they were said to be juveniles and young adults .

Quite simply, victims, witnesses, and law enforcement officers all testified
persuasively and consistently that perpetrators of cross burnings and related
incidents tend to be juveniles and young adults. Goldie Palmer testified at
the Danbury hearing that she observed six men between the ages of 18 and 20

vandalize her property. Linda Davenport, victim of two cross burnings at her

home, testified that she witnessed during the first incident. .. "one of the boys 1

with a white tee shirt and jeans on." Ms. Davenport suggested, "It's mostly \

the sons and kids. . .You' ve got some kids that want to make trouble and you've i

got some that don't." Kathie Garay reported to the select panel in Bridgeport |

that she knew one of the perpetrators of the cross burnings and that "he's just i

a menacing little boy. He's fourteen now." "There have been to date in the |

past year 16 arrests. ..of those 15 arrests approximately half involved juveniles," j
reported Donald J. Long, Commissioner of the Connecticut Department of Public I

Safety. And Chief of Norwalk Police, Joseph W. Beres, Jr., informed the select '

panel as follows: "In the first incident we arrested a 17 year old youth and
a juvenile. In the second incident. . .we arrested an adult male. ..in his early
20's. "

A profile of the sort of person who is likely to be involved in cross burnings ;
and related behavior was offered to the select panel by Charles Sardeson, Execu-
tive Director of the National Conference of Christians and Jews. His organization
has observed this kind of behavior in various parts of the country over decades
of years and has determined that very frequently the perpetrator is a white male
between the ages of 15 and 18 years. Explained Mr. Sardeson, "In many instances
this person will not be officially affiliated with an organization such as the
Ku Klux Klan or the Neo-Nazi group... He will, in all probability, be a loner, he

229

will be the kind of younq person who has not participated in organized school
and community activities." Mr. Sardeson further noted that the perpetrator in
many instances has serious doubts about his own self worth, wants to win the ap-
proval of his parents and others, and to do so engages in racist violence that
the conversations of his parents over the years have led him to believe they
would endorse.

Dr. James P. Comer, Professor of Skilled Psychiatry at Yale Medical School,
discussed why youths tend to be over-involved in these incidents. Dr. Comer
suggested that because youths are being tested intellectually, socially, and
emotionally, they are under a great deal of stress, they are concerned about
their adequacy, and "...because of that many are vulnerable to ideologies that
are transmitted in the society, they Are vulnerable to charismatic leaders, they
are vulnerable to simplistic solutions. .. [and] racist. .. ideas. .. "

This collection of testimony and other similar testimony has led the select
panel to find that where perpetrators have been observed or apprehended they
were said to be Juveniles and young adults .

Although finding <*3 reads that the incidents are not the result of any
organized activity, testimony was reviewed on the distribution of hate literature
in Connecticut. A summation of that testimony is the subject of finding #5,
which follows.

230

The Select Panel finds:

#5 That literature bearing out of state return addresses has been
widely distributed in Connecticut .

Many of the exhibits presented to the select panel can be characterized
as hate literature, and most of the literature bears out of state return ad-
dresses. The Crusader newspaper, submitted as exhibit D-2 by Danbury Mayor
James F. Dyer, is subtitled "The Voice of the White Majority", and bears a
MetairiG, Louisiana address, as well as a card with a Danbury mailing address.
The newspaper is published by the Knights of the Ku Klux Klan. In that news-
paper. Grand Wizard of the Knights of the Ku Klox Klan, David Duke, writes that
"Soon our people will enter a struggle for freedom far greater than the
struggle of our race thousands of years ago against the Huns... The victor shall
be the White race and the nationalist idea." In the opinion of the select
panel, these words advocate race supremacy. The select panel considers the advo-
cacy of race supremacy utterly revolting and completely un-American. The con-
cept must therefore be attacked and eliminated whenever it appears and the
words of Mr. Duke challenged at their very utterance. Another article states,
"Every time the enemies of our blood have gravely threatened our people from
within or without. . .our people have always emerged victorious..." The select
panel finds the phrase "enemies of our blood" rancid with racism; the only
possible purpose of the phrase is to create mistrust and racial conflict. And
a lengthy essay on current relations between Black Americans and Jewish
Americans suggests that the two groups are likely to close ranks as follows:
"Most helpful of all in making the pro-black Gong Show play in Peoria once
again would be another Michael (a/k/a Martin) Luther King. No one was better
than 'the Kink' at striking the guilt and self-hate of the sanctimonious churchianityj
types and Eleanor Roosevelt fans..." The select panel finds that the callous
reference to Martin Luther King, Jr., demonstrates vicious disrespect for a man
nearly universally viewed by Black Americans as a singular champion of the race.

231

The persons who use these words and distribute this newspaper poison relations
between the various racial and religious groups in Connecticut; surely they do
nothing to enhance community good will.

Exhibit D-5, submitted to the select panel by Ben F. Andrews, Jr., is a
pamphlet entitled "Nightmare", published by the Knights of the Ku Klux Klan
with a Metairie, Louisiana mailing address. The pamphlet describes a war be-
tween the races in the United States, initiated by Black Americans, all de-
scribed as unruly savages, pitted against Caucasian Knights of the Ku Klux Klan,
all painted as champions of virtue and principle. This literature is an insult
to the vast majority of Americans of all races who work hard to support them-
selves and their families, obey the laws, pay the taxes, and abhor warfare of any
kind, particularly between the races. The select panel advises all people of
conscience to swiftly and angrily reject this disgusting literature.

Among the collection of exhibits identified as Exhibit D-7 submitted by
James Edler of Danbury is an application for membership in the Ku Klux Klan
Youth Corps, entitled "White Students Fight for White Power" with a Metairie,
Louisiana return address. The membership form states in part as follows, "Ra-
cial separation, preferably through Black repatriation to Africa, is the final
and only desirable solution to America's racial problems in the opinion of the
Klan Youth Corps and the Knights of the Ku Klux Klan." The select panel
hastens to note that most Black Americans and their ancestors have lived on
these shores longer than most other Americans and their ancestors, but that
aside. Black repatriation to Africa is an outrageous suggestion that shows
gross disrespect for the grand American tradition of ethnic and cultural pluralism.

Several other newspapers were offered as Exhibits B-7 by Malcolm Webber.
The Thunderbolt , with a Marietta, Georgia return address, is apparently
published by the National States Rights Party. One article describes an

232

"expose" on kosher foods, claiming a conspiracy by Jewish Americans against
Christian Americans in the advertisment and sale of kosher food products.
The article would be absurd were it not so venomous and ripe with religious
prejudice. Another article on then-presidential candidate, Jimmy Carter,
states, "He is the enemy of the White race. You can tell where a man really
stands by the people he associates with. They are the Jews, race-mixers. Red
revolutionaries and Black revolutionaries." And another article, replete with
race hatred, is entitled, "Negro Blood in White Family Produced a Black 'Throw-
back' Baby" and suggests that a study of family photographs can determine
"whether... a family tree has been polluted with non-white gen