The Long Civil Rights Act and Criminal Justice

INTRODUCTIONFrom where we stand, fifty years later, the Civil Rights Act is both the culmination of seventy years of political agitation to persuade the country to accept the discipline and fundamental intent of the Reconstruction Era civil rights statutes, as well as the birth of the modern civil rights statutory regime. The civil rights acts immediately preceding the 1964 Act-one in 1957 and a second in 1960-were limited and ineffectual, and those that followed were branches from the tree planted in 1964. This Symposium focuses on the challenges of implementing the 1964 Act and the doctrinal dilemmas it has spawned, and rightfully so. I take a slightly different tack here, for I consider what the 1964 Act failed to address. I explore the relationship between what I call the "Long Civil Rights Act"1 and the persistent denial by state authorities of what I shall call "justice rights"-the rights to freedom from racial violence and from discrimination in the administration of criminal justice. The history of the Long Civil Rights Act makes clear that measures authorizing the federal government to sue to protect such rights were considered but not adopted. On the other hand, the smaller steps Congress did take demonstrate that the failure was not a question of constitutional authority but of political will. This failure to control the pervasive racial violence that sustained Jim Crow, and to remedy discriminatory criminal justice practices, reflects a legislative lapse that was never fully corrected.In 1991, Congress failed to pass the Police Accountability Act, which would have given the Department of Justice the power to seek injunctive relief for systemic constitutional violations by police departments.2 In reporting out the measure, the House Judiciary Committee noted that the bill would close a longstanding gap in the statutory regime protecting rights to personal security and to be free from racial violence.3 It was not until thirty years after the passage of the 1964 Act, when, in 1994, Congress passed the Violent Crime Control and Law Enforcement Act of 1968, empowering the Department of Justice to conduct pattern or practice investigations of police departments, as it did in 2015 of the Ferguson Police Department, and to seek equitable remedies.4 While the 1994 Violent Crime Control Act has not been a panacea,5 it did confer clear authority on the Justice Department to respond proactively to systemic law enforcement violations. One need only consider the vast body of law generated since 1964 by Title VII to imagine what the Nation's criminal justice systems might look like today had the 1964 Act authorized meaningful federal remedies for systemic violations of justice rights.Unlike the battles that resulted in the New Deal legal regime, the path to passage of the '64 Civil Rights Act was, quite literally, a bloody one. President Kennedy, who was famously reluctant to support civil rights in the first two years of his administration,6 introduced the bill in June 1963, after Birmingham's police chief "Bull" Connor arrested, hosed down, and let the dogs loose on 1000 children.7 Yet, it was not until after the President's death in November 1963 and the Birmingham church bombing in September of that year that public opinion was sufficiently mobilized to allow the Senate to prevail over the Southern stranglehold that had buried every other civil rights proposal since Reconstruction. But while the 1964 Civil Rights Act was a direct response to the shocking televised images of anti-civil rights violence,8 nothing in the Act targeted racial violence or Southern law enforcement systems.9 Indeed, across the history of the Long Civil Rights Act, repeatedly, racial violence was evidence of the need for federal action but never the direct target of such action. It is not too much to argue that the "New Jim Crow"10 is in some critical measure the predictable consequence of the compromises that led to the exclusion of justice rights from the '64 Act. …