Foreword
The protest movement sparked by George Floyd’s killing last year has forced a nationwide reckoning with a wide range of deep-rooted racial inequities — in our economy, in health care, in education, and even in our democracy — that undermine the American promise of freedom and justice for all. That tragic incident provoked widespread demonstrations and stirred strong emotions from people across our nation.
While our state and local governments wrestle with how to reimagine relationships between police and the communities they serve, the Justice Department has long been hamstrung in its ability to mete out justice when people’s civil rights are violated.
The Civil Rights Acts passed during Reconstruction made it a federal crime to deprive someone of their constitutional rights while acting in an official capacity, a provision now known as Section 242. Today, when state or local law enforcement are accused of misconduct, the federal government is often seen as the best avenue for justice — to conduct a neutral investigation and to serve as a backstop when state or local investigations falter. I’m proud that the Justice Department pursued more Section 242 cases under my leadership than under any other attorney general before or since.
But due to Section 242’s vague wording and a series of Supreme Court decisions that raised the standard of proof needed for a civil rights violation, it’s often difficult for federal prosecutors to hold law enforcement accountable using this statute.
This timely report outlines changes to Section 242 that would clarify its scope, making it easier to bring cases and win convictions for civil rights violations of these kinds. Changing the law would allow for charges in cases where prosecutors might currently conclude that the standard of proof cannot be met. Perhaps more important, it attempts to deter potential future misconduct by acting as a nationwide reminder to law enforcement and other public officials of the constitutional limits on their authority.
The statutory changes recommended in this proposal are carefully designed to better protect civil rights that are already recognized. And because Black, Latino, and Native Americans are disproportionately victimized by the kinds of official misconduct the proposal addresses, these changes would advance racial justice.
This proposal would also help ensure that law enforcement officers in every part of the United States live up to the same high standards of professionalism. I have immense regard for the vital role that police play in all of America’s communities and for the sacrifices that they and their families are too often called to make on behalf of their country. It is in great part for their sake — and for their safety — that we must seek to build trust in all communities.
We need to send a clear message that the Constitution and laws of the United States prohibit public officials from engaging in excessive force, sexual misconduct, and deprivation of needed medical care. This proposal will better allow the Justice Department to pursue justice in every appropriate case, across the country.
Eric H. Holder Jr.
Eighty-Second Attorney General of the United States
Introduction
Excessive use of force by law enforcement, sexual abuse by public officials and others in positions of authority, and the denial of needed medical care to people in police or correctional custody undermine the rule of law, our government, and our systems of justice.
When public officials engage in misconduct, people expect justice, often in the form of a federal investigation and criminal prosecution. In 2020 alone, instances of police violence, including the killings of George Floyd, Rayshard Brooks, and Breonna Taylor and the shooting of Jacob Blake, led to demands for increased police accountability and federal civil rights investigations. footnote1_3a28b7j 1
For almost all incidents involving violence by law enforcement, there is one federal criminal law that applies: 18 U.S.C. § 242. Unlike nearly all other criminal laws, the statute does not clearly define what conduct is a criminal act. It describes the circumstances under which a person, acting with the authority of government, can be held criminally responsible for violating someone’s constitutional rights, but it does not make clear to officials what particular actions they cannot take. footnote2_grrs3q9 2
It need not be this way. The federal government must renew our national commitment to civil rights by enacting a criminal statutory framework that protects the fundamental constitutional rights of people who come into contact with public officials, including those who are being arrested or are in custody. footnote3_k595eht 3
Recent instances of racialized police violence have made this matter all the more urgent. In 2020 alone, police killed more than 1,100 people. footnote4_xyz8u5k 4 Black Americans are three times more likely to be killed by a police officer than white Americans and nearly twice as likely to be killed as Latino Americans. footnote5_j8f3lo7 5 Police killing is a leading cause of death for Black men in the United States — one in every 1,000 Black men will die at the hands of police. footnote6_09mwjm7 6 In 2019, Black people represented 24 percent of those killed, despite making up only 13 percent of the population, and although Black people are 3 times more likely to be killed by the police than white people, they are 1.3 times more likely than whites to be unarmed in such incidents. footnote7_jr3ypno 7 These disparities have led unprecedented numbers of Americans to demand justice for victims of police violence and changes to our criminal justice system. footnote8_ukhty2s 8
In addition to law enforcement brutality, other types of official misconduct shock the conscience. These include sexual misconduct by public officials; officials’ failure to provide medical treatment to people who are under arrest or in jail or prison; and pervasive violence by correctional officers in jails and prisons, where excessive force against incarcerated people is often shielded from public view. footnote9_k1k9bwp 9 Yet cases are rarely prosecuted under § 242. footnote10_csm4npo 10
Congress should make structural changes to our laws to help protect the civil rights of all people. If passed, the legislation recommended in this report would impact how law enforcement, corrections, and other public officials operate nationwide. By more specifically defining what actions violate civil rights, the law would put officials on clearer notice of what is forbidden. In addition, the proposed statute would specifically codify the authority to prosecute fellow officers or supervisors who know a civil rights violation is occurring but fail to intervene something the law already allows. footnote11_8sez8ts 11 These changes to § 242 should result in modifications to police and law enforcement training across the country and also deter civil rights violations. footnote12_5nyw0qn 12 For those public officials and law enforcement officers who do deprive someone of his or her civil rights, these changes would lower some of the barriers to federal prosecutions and civil lawsuits. footnote13_kxpgk4g 13 (written by:
