By Taryn A. Merkl PUBLISHED APRIL 29, 2021 With a foreword by Eric H. Holder Jr

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.

New York: Brennan Center for Justice at New York University School of Law, 2021. 26p.

By The Virginia Advisory Committee to the U.S. Commission on Civil Rights

On February 18, 2021, the Virginia Advisory Committee (Committee) to the U.S. Commission on Civil Rights (Commission) adopted a proposal to undertake a study of police oversight and accountability in the Commonwealth. The focus of the Committee’s inquiry was to examine law enforcement accountability and oversight structures in Virginia to better understand their effectiveness and impact. From a civil rights perspective, the Committee sought to consider the role such accountability structures have in ensuring equal protection of the laws and in the administration of justice, and the impact they may have on any disparities in police contact and use of force based on race, color, sex, disability, and national origin. As part of this inquiry the Committee heard testimony via video conference held in a series of eight public meetings that took place between July 2021 and May 2022.1 The following report results from a review of testimony provided at these meetings, combined with written testimony submitted during this timeframe. It begins with a brief background of the issues to be considered by the Committee. It then identifies primary findings as they emerged from this testimony. Finally, it makes recommendations that address related civil rights concerns. This report focuses on civil rights and police accountability structures in Virginia. While other important topics may have surfaced throughout the Committee’s inquiry, matters that are outside the scope of this specific civil rights mandate are left for another discussion. This report and the recommendations included within it were adopted by a unanimous vote of the Committee members present at the Committee meeting on May 31, 2023. 2

Washington, DC: USCCR, 2023. 57p.

By the  U.S. Department of Justice Civil Rights Division 

 The United States has conducted an extensive investigation of the Orange County District Attorney’s Office (OCDA) and the Orange County Sheriff’s Department (OCSD), pursuant to our authority under the Violent Crime Control and Law Enforcement Act of 1994, 34 U.S.C. § 12601 (previously codified at 42 U.S.C. § 14141). We have determined that there is reasonable cause to believe that the Orange County District Attorney’s Office and the Orange County Sheriff’s Department engaged in a pattern or practice of conduct—the operation of a custodial informant program—that systematically violated criminal defendants’ right to counsel under the Sixth Amendment and right to due process of law under the Fourteenth Amendment. While our review focused on custodial informant activity from 2007 through 2016, the informant controversy continues to undermine public confidence in the integrity of the Orange County criminal legal system. Neither agency has implemented sufficient remedial measures to identify criminal cases impacted by unlawful informant activities or prevent future constitutional violations. This report provides a public accounting of the scope and impact of the informant program on the Orange County criminal legal system. … We focused our investigation on: (1) whether OCDA and OCSD used custodial informants to elicit incriminating statements from individuals in the Orange County Jail, after those individuals had been charged with a crime, in violation of the Sixth Amendment; and (2) whether OCDA failed to disclose exculpatory evidence about those custodial informants to criminal defendants in violation of the Fourteenth Amendment. We reviewed thousands of pages of documents, made  numerous site visits to OCDA and OCSD, and conducted dozens of interviews in the course of our investigation. In particular, we conducted 17 transcribed interviews with OCDA prosecutors about specific cases they personally handled involving custodial informants. The evidence reveals that custodial informants in the Orange County Jail system acted as agents of law enforcement to elicit incriminating statements from defendants represented by counsel, and that for years OCSD maintained and concealed systems to track, manage, and reward those custodial informants. The evidence also reveals that OCDA prosecutors failed to seek out and disclose to defense counsel exculpatory information regarding custodial informants. We therefore have reasonable cause to believe that this pattern or practice of conduct by both agencies resulted in systematic violations of the Sixth and Fourteenth Amendments.     

Washington, DC: The Author, 2022. 63p.

By The United States Commission on Civil Rights,  Minnesota Advisory Committee 

The nature and scope of the problem. There will be no end to disparate policing, and the accompanying resentment in the community, until sufficient data can be collected to better inform both policymakers and the People who elect them. Disparate policing is abusive on many levels, affecting the individuals involved, reopening unhealed wounds left by historical injustices, and reminding entire communities that their lives don’t matter. The Committee found that the lack of political will at all levels of government to enforce the limits on police conduct is the major impediment to meaningful change that would address the Constitutional violations identified in this report.  

Minneapolis:: Minnesota Advisory Committee to the U.S. Commission on Civil Rights ,2022. 62p.

By Jamein Cunningham, Donna Feir and Rob Gillezeau

Do collective bargaining rights for law enforcement result in more civilian deaths at the hands of the police? Using an event-study design, we find that the introduction of duty to bargain requirements with police unions has led to a significant increase in non-white civilian deaths at the hands of police during the late twentieth century. We find no impact on various crime rate measures and suggestive evidence of a decline in police employment, consistent with increasing compensation. Our results indicate that the adoption of collective bargaining rights for law enforcement can explain approximately 10 percent of the total non-white civilian deaths at the hands of law enforcement between 1959 and 1988. This effect is robust to a contiguous county approach, accounting for heterogeneity in treatment timing, and numerous other specifications. While the relationship between police unions and violence against civilians is not clear ex-ante, our results show that the popular notion that police unions exacerbate police violence is empirically grounded.

Bonn: IZA – Institute of Labor Economics , 2021. 75p.

By The U.S. Department of Justice, Civil Rights Division

There are more than 18,000 law enforcement agencies across the country. Law enforcement is a demanding, rigorous, and – at times – dangerous profession. The vast majority of men and women who police our communities do so with professionalism, respect, bravery, and integrity. But as we have seen around the country, when police departments engage in unconstitutional policing, their actions can severely undermine both community trust and public safety. Today, our country is engaged in a critically important conversation about community-police relations. This report describes one of the United States Department of Justice’s central tools for accomplishing police reform, restoring police-community trust, and strengthening officer and public safety – the Civil Rights Division’s enforcement of the civil prohibition on a “pattern or practice” of policing that violates the Constitution or other federal laws (the Department’s other tools are described later in this document).

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Washington, DC: U.S. Department of Justice, 2017. 55p.

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