Shielded from Justice: Police Brutality and Accountability in the United States
Low Rate of Federal Prosecutions
As the charts below show, even when a complaint does make its way to the Civil Rights Division, it is unlikely to lead to a conviction. While many of the complaints received by the Justice Department may be unfounded or weak, and do not merit prosecution, the fact that so few cases make their way through the review process is cause for concern.Table 1.
According to the Civil Rights Division189
Of the 10,129 civil rights cases reviewed in FY1996(which included official misconduct complaints), just over .2 percent resulted in official misconduct cases filed for prosecution. If compared to the number of all civil rights matters fully investigated - by the FBI initially or after being referred to the FBI by the Civil Rights Division - the prosecution rate for official misconduct cases (including police abuse) is still less than 1 percent of cases investigated.
In explaining the low rate of prosecution, Richard Roberts, chief of the Criminal Section of the Civil Rights Division, told Human Rights Watch that federal civil rights prosecutions are difficult due to the requirement of proof of the accused officer's "specific intent" to deprive an individual of his or her civil rights as distinguished, for example, from an intent simply to assault an individual. When asked whether the intent provision of the statute creates too rigorous a standard to provide the civil rights protections intended or needed, Roberts contended that whilethe cases are difficult, his office is able to pursue them and does not advocate revising the civil rights statutes.
There is nearly a 100 percent success rate for cases other than those involving official misconduct that are fully prosecuted by the Civil Rights Division: hate crimes, cases brought under the Freedom of Access to [Abortion] Clinic Entrances laws, involuntary servitude, and beginning in 1996, church arson/desecration. By contrast, in official misconduct cases, including cases involving police officers, the conviction rate was much lower, only 78 percent in Fiscal Year (FY) 1994 and FY 1995 and declining to 64 percent in FY 1996.190 Official misconduct prosecutions, including of police officers, went down as hate crime prosecutions went up, which may indicate a staffing shortage within the division as priorities changed.191
Not only are police misconduct cases prosecuted at the lowest rate among civil rights prosecutions, but civil rights offenses themselves are prosecuted less than any other category of offense handled by the U.S. Justice Department. For example, official corruption cases, which involve similar obstacles for investigators and prosecutors, were prosecuted at ten times the rate of civil rights cases in 1996.192 Justice Department officials have explained the low rate of prosecution for civil rights cases by stating that they are interested in encouraging local authorities to deal with civil rights violations in their communities, without explaining why the same could not be said regarding corruption.
In its explanation of resource distribution, the Civil Rights Division notes the inexperience of its staff, stating: "In addition, the current level of lawyers with little criminal experience has limited our ability to assign these attorneys to work independently on grand jury investigations."193 It is unclear why attorneys without appropriate experience are being assigned to the Civil Rights Division. The divisionalso explains that high-profile, complex cases overwhelm the resources of the division, with a few cases consuming the time of many of the experienced attorneys.
There is good reason to question whether staffing levels are sufficient at the Civil Rights Division. The Department of Justice had 108,700 employees as of March 1997; of these, 9,168 were attorneys.194 According to the Civil Rights Division, as of April 1998, there were only thirty-two full-time attorneys in the Criminal Section of the Civil Rights Division, the office responsible for prosecuting police abuse and other official misconduct cases.195 Moreover, as local (and all) law enforcement agencies grow dramatically, the number of Civil Rights Division attorneys available to prosecute cases of civil rights violations has remained steady or dropped.196 In 1993, there were 665,803 sworn officers serving full- and part-time in 17,120 city, county, and state law enforcement agencies, and an additional 68,825 sworn federal law enforcement agents, for a total of 734,628.197 Those numbers have certainly increased in the meantime, but even at that level, there would be one federal civil rights prosecutor for every 22,950 law enforcement officers.198 Although the Civil Rights Division should insist on attaining a reasonable ratio between the number of prosecutors and law enforcement officers, the White House and Congress are equally responsible for allowing civil rights concerns to be pushed aside while supporting massive expansion of law enforcement personnel. Clearly, civil rights crimes are a part of the law enforcement challenge that has been neglected.
Prosecutors rely on the Federal Bureau of Investigation (FBI) to conduct inquiries into allegations of criminal civil rights violations. Unfortunately, thetypical FBI investigation of police abuse complaints may be limited to information provided by the local law enforcement agency itself - information that is routinely inadequate or biased, as described above. Furthermore, Justice Department rules require that a preliminary FBI report be made within twenty-one days, a requirement that virtually eliminates the possibility of a thorough investigation. The preliminary FBI report can be supplemented, but an investigative policy that does not involve monitoring subsequent civil proceedings or disciplinary actions will tend to place undue weight on initial, official explanations of the incidents involved.199 The FBI reportedly has no decision-making authority regarding whether to initiate a full investigation; that decision is left entirely to the Civil Rights Division.200
189 Justice Department, "Performance Measurement Table: Presented by Decision Unit," undated but provided to Human Rights Watch on April 25, 1997. FBI totals include less serious complaints, but the majority are brutality complaints that become "matters investigated," meaning that they are assigned to an attorney.
191 In November 1997, President Clinton announced that the Civil Rights Division would bolster its efforts to address an increase in hate crimes, and that fifty FBI agents would be assigned to investigating such crimes.
192 Update provided by David Burnham based on data provided by the Justice Department. In 1992, official corruption was prosecuted at nine times the rate of civil rights cases, David Burnham, Above the Law, (New York: Scribner Books, 1996), p. 264.
194 According to the most recent Legal Activities Book, released in March 1997 and available at http://www.usdoj.gov/careers/oapm/lab.
196 According to Skolnick and Fyfe, Above the Law, there were forty-four Criminal Section attorneys in 1993, and in November 1997, Human Rights Watch was told that there were thirty-three attorneys in the section. The discrepancy may stem from including as attorneys those who serve as managers.
© June 1998
Human Rights Watch