TRAC Special Report _________________________________________________

Study Shows Flaws in Justice Department Tracking of its Own Civil Rights Enforcement

A six-month study by the Transactional Records Access Clearinghouse (TRAC) has found serious flaws in how the Civil Rights Division tracks the enforcement of federal civil rights laws and the extent of U.S. civil rights problems.

The failure of the government to properly track its actions is not just a statistical problem. If agency officials are unable to measure their work product, they cannot manage that product. Equally important, effective oversight by Congress, public interest groups and the public is not possible.

TRAC's analysis of the Civil Rights Division's troubled record keeping was provided to Attorney General Alberto R. Gonzales in a letter dated June 9, 2005. The study was begun last November after Wan Kim, a deputy assistant attorney general, issued a press release asserting, "the statistics by TRAC are incorrect." (See letter and press release)

Mr. Kim's ire was directed at a special TRAC report published November 21, 2004, showing that civil rights enforcement had slumped during President Bush's first term. (See TRAC's November 21, 2004 report)

TRAC's report was based on detailed information obtained from two sources -- the Administrative Office of the United States Courts (AOUSC) and the Justice Department's Executive Office for United States Attorneys (EOUSA). Both showed civil rights enforcement had declined. Mr. Kim's critical response, on the other hand, was based on records maintained by the Civil Rights Division. They did not show the decline. A key goal of TRAC's analysis was to determine why the information coming from both the judges (AOUSC) and the prosecutors (EOUSA) was different than that from the Civil Rights Division.

A second goal of TRAC's analysis was to determine the basis for the division's claim that the number of civil rights complaints received by the Justice Department had declined during the last few years.

Civil Rights Enforcement Trends: Up or Down?

To answer this question, TRAC obtained under the Freedom of Information Act records about every one of the hundreds of individual cases in the division's records. The division's case-by-case information was then compared with case-by-case information that TRAC had already obtained from the prosecutors and the courts.

This comparison appears to show that between 1999 and 2003, the Civil Rights Division record system gradually improved its ability to pick up information about individual civil rights cases around the United States. Not all civil rights cases are brought directly by attorneys in the Civil Rights Division. Some are prosecuted by assistant U.S. Attorneys. For others, litigation responsibilities are shared.

Thus, the case-by-case data show that in the past the division was simply not recording a significant number of civil rights prosecutions, even though a much more complete record of all such cases was being picked up by both the U.S. Courts and Executive Office of U.S. Attorneys. As time went on, the Civil Rights Division record systems improved and fewer cases were missed. The improved record keeping apparently masked the decrease in prosecutions.

The bottom line: despite claims to the contrary by the Civil Rights Division, case-by-case information drawn from the separate systems of the courts and the prosecutors showed a real decline in cases actually filed in court against different kinds of violators. (President Bush, in a statement to the Urban League several months before last year's election, claimed, "my administration and its Justice Department has vigorously enforced the civil rights laws.")

Trends in Civil Rights Complaints

A second finding of TRAC's analysis was that the division's reports of the number of civil rights complaints received each year by the government are without any empirical foundation. This disturbing finding arose from an investigation we conducted after the Civil Rights Division criticized as inaccurate the numbers in our November 21 study, which said civil rights complaints had remained constant at about 12,000 per year. We had taken that figure from the division's own annual reports and official Web site, so the accusation confused us.

"TRAC erroneously states [in its report] that the number of [civil rights] complaints has remained constant, even as the prosecutions have gone down," the division said. (See press release) The division further asserted that the complaints, rather than remaining unchanged, had "dropped from 12,000 in 1999 to around 9,500 in FY 2002." But as of mid-June 2005, the complaint count of 12,000 per year was still on the Web site.

Using the FOIA, we asked the division to document its numbers. In a detailed three-page letter of response dated April 8, 2005, Nelson D. Hermilla, chief of the division's FOI/Privacy Acts Branch, admitted that the division has never had a valid way to pinpoint the number of civil rights complaints being filed:

"[T]here currently is no way to obtain either an exact number of complaints that the Criminal Section declined to investigate nor to obtain a complete breakdown by type of complaint from the data base because, e.g., citizen calls are not tracked in the Inter-Active Case Management System (ICM,)" he wrote.

"Any manual tallies on complaint calls might include four or many more calls on the same factual circumstances (or 'matter') by different individuals and the tallies may include repeat callers and writers. As yet, the computer has no way of identifying whether or not a person is complaining about the same incident or even that the same person has written in numerous times about the same matter; therefore, the Division counts all letters and calls as a complaint received." (See letter)

This is a serious admission that calls into question not only the department's count of its current caseload but all assertions about the extent of civil rights violation complaints nationwide for years in the past. It also belies the Civil Rights Division's repeated claims to Congress in budget requests about its workload and its recent assertions to the media that complaints have declined in number.