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authorities that I examined, that the Federal court was, under the circumstances of our case, without jurisdiction.
Does that answer the question?
Mr. SOBELOFF. I do not know whether you would like me to dicuss the legislation that is before the committee or not.
Senator Van Nuys. There are two questions involved. One is the constitutionality of the proposed bill, and the other is the policy. The point is usually raised that the passage of an act of this type by Congress creates confusion between the State and the Federal authorities, and perhaps results in confusion even more serious than the present condition of lynch law that has been discussed here today. If you are prepared to discuss any part of that, we shall be glad to
Mr. SOBELOFF. I approach the discussion of that very difficult constitutional question with some diffidence, because I do not profess to be an expert on the problem and have not had an opportunity to examine it very minutely, but I have given it some attention.
As a lawyer, I am not one of those who would be inclined to make the argument that a bill ought to be passed whether it is constitutional or not, and I would be lacking in candor with the committee if I expressed the idea that there are no serious questions to be argued affecting the constitutionality of the proposed measure; but I do believe that the probability of its being held constitutional is sufficient to warrant à favorable report and favorable action on the bill.
Of course, in the drafting of any legislation to deal with the lynching problem, we must bear in mind that the provisions of the fourteenth amendment are limitations on State action. We begin, therefore, with the definite proposition that to be valid the legislation must be directed against State action and not against the action of individuals. That has been definitely adjudicated by the highest court of the land. It is true enough, as the Supreme Court held in the leading Virginia case in 100 U.S., that the State acts through its individuals. You will recall, Senators, that in that case an indictment was found against the judge of a Virginia State court, under the provisions of the Civil Right Statutes of the United States. He was indicted for having denied the civil rights of a colored man on trial before him, in that the judge had excluded colored men from serving on the jury.
But, if you will examine the Virginia case, you will find that in that prosecution, while the Supreme Court held that the action of the judge was really the action of the State of Virginia, there was a very elaborate record built up in that case. The prosecution against the judge was not limited to a mere showing that he in that individual case had excluded colored men from the jury, but the record elaborately built up shows that that policy of exclusion was systematic and deliberate and had been practiced in Virginia for a long time. It was found as a fact by a majority of the Supreme Court that custom had been adopted as the policy of the State of Virginia and was therefore State action, and in that way the indictment was held valid.
Now, of course, when we come to lynching cases, as distinguished from a case like the Virginia case, which involved the exclusion from jury service of Negroes, the problem is somewhat more complicated. It is quite an easy thing to say that in the selection of a jury a judge is acting for the State,
acting as the agent of the State. Even that was not assumed as a fact. It was proven. It is much more difficult to presume as a fact that the sheriff is acting for the State when a lynching occurs. Of course, if it can be shown that the sheriff conspired with the mob, that situation can be dealt with under the existing law, but in the absence of clear evidence to establish such conspiracy, and in the nature of things such evidence is not easily obtained, a difficult problem is presented when we attempt to exercise Federal jurisdiction.
The fourteenth amendment, as I have already said, is a limitation on the State, and enjoins it from denying to any person within its jurisdiction the equal protection of the law. But it must be observed in that connection that the fourteenth amendment is not self, executing; that is, the fourth section of the fourteenth amendment is not self-executing, and the fifth section was added to that amendment, which definitely and clearly contemplates that Congress adopt supporting legislation. In my judgment, appropriate supporting legislation would be a law that has the sheriff prima facie liable for the denial of equal protection of the laws when there is a lynching, There is no such Federal legislation now.
Another piece of appropriate legislation in support of limitations on the State imposed by the fourteenth amendment would be the conferring of jurisdiction on the Federal courts to prosecute the members of the mob if the State fails to act within a reasonable time. This would be in the nature of a removal from a State court to a Federal court; that is, from the jurisdiction where the equal protection is denied to a court which the Federal Constitution and Congress say shall give vitality and force to the fourteenth amendment. As I view it, this is merely an extension of section 74 of title 28 of the United States Code, which has been held valid by the Supreme Court in Strauder v. West Virginia, in 100 U.S.
Of course, it cannot be claimed that the Federal court has primary jurisdiction to punish the State officials or the members of a mob where a lynching has occurred. Murder, assault and battery, and neglect of official duty are primarily offenses to be dealt with by the States; but if from the circumstances of the lynching and from the subsequent inaction of State officers to apprehend and prosecute the perpetrators of the lynching it can be fairly shown as a fact that a deprivation of the guaranties of the fourteenth amendment has taken place, and that through the action or the inaction of the State or its officers, then it seems to me it is competent for Congress in such a case to direct its courts, the Federal courts, to act in vindication of the constitutional guaranties.
As to the pending bill, as I see it, one possible constitutional door through which it may successfully pass, is the theory which I understand was adopted by the draftsmen who rely on that clause of the fourteenth amendment which prohibits the State from denying to any person within its jurisdiction the equal protection of the laws, The bill undertakes to create a presumption that a failure for more than 30 days after the commission of the offense to apprehend or indict the person suspected of it is prima facie evidence of failure on the part of the State to afford equal protection. Of course, a presumption to be valid must be reasonable. My own thought ig
that such presumption as the bill makes, though I confess it goes further than any precedent that I know of, is probably sustainable.
It may be of some interest to note that the Attorney General of the United States yeserday submitted to Congress his recommendation of a series of bills creating new crimes and extending the Federal laws to deal with existing crimes. One of these bills provides that in a kidnaping case, where the victim has been detained for a period of 3 days or longer by the kidnapers, there shall arise a prima facie presumption that the kidnapers removed the victim across a State border or line. This proposed legislation was endorsed by the Attorney General of the United States. It seems to me that the presumption which is proposed by the measure before this committee is certainly valid and reasonable and as consistent as the presumption proposed by the Attorney General's bill.
There are a number of criticisms of the bill which I think merit consideration, and it perhaps will be of some service to the committee to have these matters pointed out.
In the first place, I feel that the penalties suggested are too severe. A statute does not necessarily gain strength from stringent penalties. Indeed, my own limited experience would suggest that convictions frequently become more difficult because of the possibility of extreme punishment. And when, as in the draft of the bill before you, that possibility is converted into almost an imperative necessity in some cases, as in paragraph (b) of the third section of the bill, which provides a minimum penalty of 5 years, a jury is given a powerful incentive to indulge in what it might call a reasonable doubt and acquit, whereas if the penalty were not fixed but could be made consistent with the justice of the case, the jury would not be so inclined to strain to avoid conviction. The important thing is to enhance the possibility of conviction. The important thing is not a very severe penalty. A severe penalty, if merited, can still be imposed, if there is a minimum provided in the statute.
Now, as to section 5, which imposes a liability of $10,000 on the county, that presents some interesting questions. I was rather intrigued by the suggestion contaired in the question of one of the Senators that pointed to the policy or propriety of making the innocent suffer for the guilty, to make the innocent citizens pay a part of the $10,000 along with the citizens who are guilty of the lynching. It is a queer sort of argument to raise when the object of the legislation is to prevent lynching. I cannot imagine any form of procedure where the innocent and guilty are intermingled indiscriminately more than in a lynching party. However that may be, innocent people are penalized for all antisocial acts that occur in the community. Moreover, the decent people of a community would, I feel, prefer to have proper compensation paid to the family of a victim. And finally, I think it is fair to say that the provision is written as a preventive, as a prophylactic, and in the long run it might really be in the interest of the pocketbooks of the law-abiding people of the county if such a provision were contained in the bill,
because it would tend to discourage the perpetration of the crime of lynching.
However, when we had so much with respect to the policy and propriety from the standpoint of fairness and justice of this provi
sion, there are some questions that might be raised as to the legality, and 'I think the legality can be made more certain and some of the constitutional questions raised against it might be avoided by a redrafting of that section. If I may respectfully make suggestions along that line, I would like to observe that if the liability which is provided in that section might be regarded as a fine or penalty imposed by the United States on the county, it would perhaps be an anomaly in our law, because I do not personally know of any instance in which a State or its subdivision has by law of the United States been subjected to a penalty or fine, nor do I know of any constitutional basis for such legislation.
Of course there are cases like Sturgis v. Illinois (222 U.S.) where such provisions in State laws have been upheld as valid, but there you have a State dealing with its own creature, its county. It is a somewhat different and clearly distinguishable situation where the United States is attempting to impose a penalty on a State or subdivision thereof.
If, on the other hand, we regard the liability in this section not as a criminal penalty but in the nature of liquidated damages for an injury inflicted by the deprivation of equal protection of the law to the victim of a lynching, then it would perhaps be less objectionable, though it might still be subject to an attack as a diversion of tax money. It might be worth while to revise that section, so that it would avoid the objection that it is a penalty on a governmental agency of the State. Provision might be made for a civil action with certain minimum damages.
Incidentally, Senators, in redrafting this section it might be borne in mind that some subdivisions of some States have only very limited power to tax; and if the machinery does not exist in that particular subdivision or county for the imposition of taxes for the payment of judgments, then a mandamus would not lie, even though the statute authorized mandamus. I do not know exactly what suggestion to make as to that, but I am merely pointing out the problem as one deserving consideration, for otherwise it might happen that a judgment against a county would be recovered, but the hostile agents of the county would make no effort to collect it. It might be that some very salutary effect would result from a recovery of a judgment, but, of course, in the drafting of the law every effort should be made to insure that the judgment, when recovered, is collectible.
I have heard the criticism that the bill is so broad in its provisions that it may be utilized in situations very different from lynchings, as where three or more persons in a labor dispute inflict injury on some other persons. It might be wise to obviate this objection by narrowing the provisions somewhat by including a definition of lynching that would embrace the notion that the mob intended to be reached by the law is one whose object it is to usurp the State's prerogative to prevent and punish crime. If three or more persons commit murder or assault from some other motive, that is not the cvil at which this legislation is directed, and it might strengthen the law to limit its scope to deal with the problem that the committee has in mind.
Now, finally, it has been objected that Congress should not pass this bill because it is of doubtful constitutionality. As I have indicated, while my feeling is that the constitutional questions are serious, I also feel that there is sufficient probability of the law being held constitutional to warrant its passage. No one can say with any real confidence that the law is not constitutional. We have witnessed too many divisions of opinion in the highest court itself for anybody to express an opinion with great assurance on a question of this sort.
It has been stated by many to whom such legislation is distasteful that lynchings cannot be prevented by law, but by public opinion, and that the process is not additional legislation but education. This is perhaps true enough, but I respectfully suggest that the explicit declaration of the Congress of the United States against such atrocities would itself be a potent educational factor and would be deeply impressive to the mass of our people, and would in that indirect way further tend to achieve a desired aim, and is, therefore, well worth while.
If I may make an argument ad hominum to you gentlemen, in consideration of this question that was raised with respect to this bill based upon an interpretation of the fourteenth amendment, it is only fair to observe that the fourteenth amendment was passed primarily in the interest of the Negro race. We should not complain unduly when application is made to give the benefit of the amendment to that group in whose primary interest it was adopted.
Of course, in dealing with questions of the Constitution, even the courts resolve doubts in favor of constitutionality. I think this committee and the Senate and Congress may well adopt the same attitude.
I was interested in the observation of Attorney General Lane that preliminary action to prevent lynching is perhaps more important than anything that can be done under legislation that deals with a situation after it has occurred. I fully agree with that sentiment. It might be of interest to point out in that connection that your colleague, Senator Goldsborough of Maryland, when he was Gov. ernor of Maryland, had a situation in which a colored man was charged with a capital offense on the Eastern Shore of Maryland. Information came to him that a mob was gathering to deliver the man from the jail. He acted promptly by calling out the militia then, and the man was taken to Baltimore City for safekeeping, and the lynching was averted. Of course, such diligence is the best safeguard against a lawless mob.
However, on the whole, I should think that legislation of the kind that is now contemplated would have a very salutary effect as a deterrent, even though the provisions of the law simply deal with a situation after it has been committed. The theory of all criminal legislation is primarily to deter a repetition of the offense. It is not always feasible to have police at the place at the time an offense is threatened, but the law substitutes this other means, namely, a penalty, with the possibility, or a great probability of punishment of the mob. It seems to me that serves as a support to the law-abiding citizens, and as a deterrent to lawless offenses in the community.
Senator Van Nuys. I appreciate your observations very much, and I am sure the members of the subcommittee will read your testimony with much interest.