Dear Professor Long,
Here is the additional information responsive to your FOIA request.
This completes the material that we had not yet provided in fulfillment of
your request. I apologize for the length of time it has taken to collect this
information. I hope that it is useful.
Please do not hesitate to contact me further if you have any questions.
Nelson D. Hermilla
1. Please provide us with a description of the criteria which you use to classify a case as a civil rights prosecution. We request that the description include answers to at least the following questions: Do you require that a specific civil rights statute be the basis for the prosecution? If so, which statutes are included? If prosecutions under non-civil rights statutes are included within your count, please provide the basis for their inclusion. Any other information on the criteria you use which you feel would be helpful we would also appreciate receiving.
Following is a description of the Criminal Section's enforcement activities as well as the substantive federal criminal civil rights statutes we enforce. You may access the specific elements for the applicable statute through the Department of Justice web site at: www.usdoj.gov/crt/crim/overview.htm <http://www.usdoj.gov>
The Criminal Section, working closely withthe various United States Attorneys Offices around the country, generally prosecutes cases involving the violent interference with liberties and rights defined in the Constitution or established under federal law. Our jurisdiction often overlaps with state and local statutes, and local prosecutions implicating our statutes are monitored and reviewed under the petite policy.
The types of acts that may involve violations of federal criminal civil rights laws are:
HATE CRIMES (18 U.S.C. § 241, 18 U.S.C. § 245 and 42 U.S.C. § 3631) -- Violent and intimidating acts of racial, ethnic and religious animus that interfere with federally protected rights, such as housing, employment, voting, and public services.
OFFICIAL MISCONDUCT (18 U.S.C. § 241 18 U.S.C. § 242) -- Intentional acts by law enforcement officials who misuse their positions to unlawfully deprive individuals of constitutional rights, such as the right to be free from unwarranted assaults, illegal arrests and searches, and theft of property.
HUMAN TRAFFICKING AND INVOLUNTARY SERVITUDE (18 U.S.C. §§ 1581,1584, 1589, 1590, 1591, 1592 and 1594)-- Use of force or threats of force to compel persons to perform work against their will. Modern day slavery or worker exploitation usually involving migrants, foreign domestic workers, religious cults.
INTERFERENCE WITH ACCESS TO REPRODUCTIVE HEALTH CARE (18 U.S.C. § 248 ) -- Violence directed at abortion clinics or health care providers, such as doctors or nurses.
INTERFERENCE WITH THE EXERCISE OF RELIGIOUS BELIEFS and DESTRUCTION OF RELIGIOUS PROPERTY (18 U.S.C.§§ 247) -- Violent conduct targeting religious houses of worship, usually involving the arson of churches or synagogues.
The punishment imposed by these statutes generally depends upon the injury suffered by the victim. The more serious the injury, the more severe the penalty. In some cases, where the victim died as a result of the defendant's conduct, the death penalty may be sought.
We may also charge various other criminal statutes in connection with a civil rights investigation, such as, accessory, misprision, general conspiracy, weapons violations, obstruction, assault on federal property and sexcual contact in federal penal institutions.
2. Please identify which of the above cases you include in your count of "color of law" civil rights prosecution counts for each year. If this information is available in electronic form, we would appreciate receiving it electronically.
"Color of law" is a legal term used in official misconduct cases. It means that the law enforcement officer acted while abusing the authority given to him or her by reason of his or her employment as a public official. Most "color of law" cases include a violation of 18 U.S.C. §242. As mentioned above, we may charge various other criminal statutes in connection with an official misconduct matter.
3. Please provide us with a description of the criteria you use to classify a case as a "color of law" prosecution. Are these limited to cases brought under 18 U.S.C. §242?
See response to no. 2 above.
4. Please provide us with records describing the process used for counting complaints. What elements are needed for something to be counted as a "complaint?"
(Excerpt from DOJ website)
Every year the Criminal Section receives and reviews several thousand complaints from citizens, law enforcement agencies, and organizations describing possible violations of the federal criminal civil rights statutes. These complaints may be received directly by the Criminal Section in the form of letters and phone calls or by referral from federal investigative agencies, such as FBI, OIG, INS, BOP, the Dept. of Housing and Urban Development and the Dept. of Treasury (Bureau of Alcohol, Tobacco, and Firearms). The majority of complaints allege misconduct by law enforcement officers such as state or local police officers, federal law enforcement officers, prison superintendents, correctional officers, state and county judges, or other public officials.
There are five general stages in bringing potential criminal civil rights violations to prosecution. In sequence, they are:
* receipt of complaint
* grand jury
* Each complaint received is analyzed to decide whether an investigation is appropriate.
* If an investigation is recommended, the FBI (the primary investigative agency) conducts the investigation by interviewing witnesses and collecting evidence and sends its report both to the responsible attorney within the Section, as well as to the U.S. Attorney's office with responsibility for federal prosecutions within the geographic area where the incident occurred. When the investigation is completed, the prosecutors must then decide whether there is sufficient evidence to prove a federal violation and legal authority to pursue the case in federal court. Evidence considered may include statements from witnesses and victims, medical records, physical evidence, and official records documenting the incident. [Note: the federal criminal civil rights laws have a five year statute of limitations from the date of the incident, except in cases involving an intentional killing (generally not bound by the statute of limitations) and religious interference incidents (seven year statute of limitations)].
* In order to prosecute a felony case where the defendant could face imprisonment of more than a year, evidence must first be presented to a grand jury, which then votes on whether an indictment should be returned. If an indictment is returned, the Criminal Section often prosecutes the case jointly with the local U.S. Attorney in the federal District where the incident occurred. There are times when the Section or the U.S. Attorney may decide to prosecute the case without direct involvement by the other office. The Criminal Section also prosecutes juvenile offenders, who may be involved in hate crimes such as cross burnings and vandalism of homes or churches.
* In the areas of police misconduct, housing rights, and access to health care, the Criminal Section may refer complaints that do not present a criminal violation to other Sections within the Civil Rights Division that have authority under separate civil statutes to file suit when a pattern of abuse is discovered.
* While not all complaints received result in investigation, nor all investigations lead to a grand jury or eventual prosecution, the Criminal Section seeks to review all possible violations to ensure that individual liberties are protected. Often, local authorities will take the lead in prosecuting violent conduct under state statutes even though such conduct also constitutes a violation of federal criminal civil rights laws. In such cases, the local prosecutive effort is presumed to vindicate federal interests.
* Infrequently, however, even if there has been a local prosecution, it may be determined (often with the support of the local authorities) that a subsequent federal prosecution is necessary to remedy the criminal wrongdoing. The Supreme Court has upheld this "dual prosecution" policy as not violating the Constitution's double jeopardy clause, since the federal Government is a separate sovereign from the state, charging a crime under its unique authority, even though the case may be based on the same incident.