CIVIL RIGHTS ENFORCEMENT BY
BUSH ADMINISTRATION LAGS

Key data from the Justice Department and the federal courts show that the government's enforcement of civil rights cases -- an extremely rare event under all recent presidents -- sharply declined during the Bush years.

HERE ARE SOME NUMBERS

In FY 1999, federal prosecutors all over the United States filed charges against 159 defendants whom they said were involved in criminal violations of the nation's civil rights laws, according to data obtained from the Executive Office for United States Attorneys under the Freedom of Information Act. Since that year, the annual counts have gone mostly down, 127 defendants prosecuted in FY 2000, 148 in FY 2001, 122 in FY 2002 and only 84 in FY 2003. See Table 1.

Figures independently recorded by the Administrative Office of the U.S. Courts show the same pronounced decline in the government's criminal enforcement of the nation's civil rights laws. The latest figures are available through December of 2003 -- a calendar year, rather than fiscal year, basis. Counting cases filed rather than the number of defendants prosecuted (for each case there may be one or many defendants) there were: 85 cases in 1999, 80 cases in 2002, 72 cases in 2001, 59 cases in 2002 and 49 cases in 2003. See graph.

Looked at over a longer period, the annual number of what the Justice Department calls "referrals for prosecutions" -- those instances when the investigative agencies recommend that charges be filed against a particular individual -- were down by almost half, 3,733 in FY 1994, 1,903 in FY 2003. See Table 2.

The drop in criminal cases against civil rights violators during the Bush years appears to closely mirror the trend in those situations where the government decided to impose civil sanctions against the violators, according to recent court data. In calendar year 2001, the government filed 740 such civil actions, in 2002 there were 644 and in 2003 the count dropped to 576. Civil suits can involve voting rights violations, employment and housing discrimination and other matters.

The civil rights enforcement record of the Bush Administration appears to conflict with a recent claim by President Bush as he campaigned for re-election. In a major speech to the annual meeting of the Urban League on July 23, Mr. Bush told the large audience that progress for African-Americans, and all Americans, depended on guaranteeing them full protection of civil rights and equality before the law. "My administration and its Justice Department," he asserted, "has vigorously enforced the civil rights laws. "

THE BIG PICTURE

The civil rights laws in question were approved by Congress over many years. They were intended to give the federal government authority to impose criminal and civil sanctions against individuals and institutions that denied citizens the rights guaranteed to all Americans under the United States Constitution. While some of the laws go back to the period immediately after the Civil War, a large number of them were adopted in the late 1950's and early 1960's. It was also in this period that the Civil Rights Division was created in the Justice Department and federal agencies -- primarily the FBI -- began making cases against various violators on a regular but still limited basis.

A handful of high-publicity cases such as the trial of the police officers who attacked Rodney King have led many to falsely conclude that civil rights prosecutions are a fairly significant component of federal law enforcement. In fact, these cases have always been exceedingly rare. During the last five years, for example, the United States prosecuted over 450,000 individuals on all kinds of charges. Only a tiny fraction of them -- just over one out of every 1,000 -- were aimed at individuals classified as civil rights violators. (By comparison, about 619 of every 1,000 prosecutions concerned drugs, weapons and immigration matters.)

Under department procedures, federal prosecutors are required to keep track of the various kinds of civil rights cases they bring, with those aimed at government enforcement officers who have misused their official powers making up the largest component. An examination of the 84 civil rights prosecutions filed in 2003, for example, shows that 32 of them involved alleged abuses by law enforcement officers, 17 concerned racial violence, 9 focused on cases of slavery and involuntary servitude and 2 on individuals charged with attempting to block access to clinics (The remaining 24 were listed as "other.")

One possible explanation for the recent decline in civil rights enforcement actions is that the American people have become more law abiding in this area. While there unfortunately is no way to track unlawful actions, the Justice Department does monitor the number of civil rights complaints that have been received each year by the government. These complaints have not declined but remained steady at about 12,000 a year for the last five years.

Another possible explanation for the slumping number of referrals and prosecutions in the civil rights area is that terrorism and the events of 9/11/01 forced the Bush Administration to divert its investigators to national security matters. While this may well be a factor, it must be noted that the decline found in civil rights enforcement does not match the trends chalked up by the government for many other enforcement areas.

Here, in summary, is the story. From FY 1999 to FY 2003, the total number of federal prosecutions of any kind increased by about ten percent, driven mostly by sharp jumps in immigration and weapons cases. Not surprisingly, terrorism and internal security filings also were sharply up since 9/11/01, but the actual number of these case is so small that they have almost no impact on overall counts. See Table 4.

While drug enforcement and white collar crime filings remained essentially unchanged, civil rights and environmental cases were definitely down. These distinctly different trends -- down for civil rights and environment and up for immigration and weapons -- suggest that unannounced policy decisions by the government also may have played a role. See earlier Table 4.

PROSECUTORIAL DISCRETION

The data show that one factor driving the disparate trends is the very different way that the various categories of cases are dealt with by US Attorneys and their assistants. In FY 2003, for example the prosecutors chose to file formal charges in almost all (90%) of the immigration cases presented to them by the investigative agencies. When it came to civil rights, however, they only prosecuted 5%.

The reasons behind the sharply different prosecution rates involve many different forces. Evidence required for a typical immigration case, for example, often is a lot easier to gather than that necessary for a civil rights case. And while a county charged with systematically denying African-Americans the right to vote or a police officer accused of brutality will usually be represented by experienced lawyers, that often is not the case with illegal immigrants. Most students of the federal criminal process, however, agree that the race and class considerations also play a role.

When assistant U.S. attorneys decline a matter they are required to explain why, selecting from a number of different pre-coded reasons. Since FY 2000, for example, the prosecutors said they had decided not to act on 61% of all referrals because government investigators had presented "weak or insufficient admissible evidence" or there was "no evidence of criminal intent" or that "no federal offense was evident." Roughly 20% of the referrals were declined as a result of "instructions from DOJ" or, curiously, at the request of the investigative agencies. See Table 5. The explanations leave more questions than answers. Why are so many found inadequate? Are the investigators working civil rights cases less competent than those involved in drug cases? Or are the prosecutors more cautious about prosecuting the alleged civil rights violators because at least some of them are an integral part of the community?

CONCLUSION

African-Americans have long asserted their right to equal treatment under the law. But with the historic bus boycott in Montgomery, the lynchings in Mississippi, Bull Connnor's violent reaction to peaceful demonstrators and other such events -- often recorded by unblinking television cameras -- the federal government initiated a ground-breaking effort to enforce these rights. This important but modest effort continued under most presidents after John F. Kennedy. But in the last three years, Justice Department data suggest that the campaign is faltering.

Support for this project was received from the Carnegie Corporation of New York, the John S. and James L. Knight Foundation, and the Leadership Conference on Civil Rights Education Fund.