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put to death by any mob or riotous assemblage or any officer or employee of any State or governmental subdivision having any such individual in his charge as a prisoner, who fails, neglects, or refuses to make all diligent efforts to protect such individual from being so injured or being put to death, or any officer or employee of any State or governmental subdivision charged with the duty of apprehending, keeping in custody, or prosecuting any person participating in such mob or riotous assemblage who fails, neglects, or refuses to make all diligent efforts to perform his duty in apprehending, keeping in custody, or prosecuting to final judgment under the laws of such State all persons so participating, shall be guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $5,000 or by imprisonment not exceeding five years, or by both such fine and imprisonment.
(b) Any officer or employee of any State or governmental subdivision, acting as such officer or employee under authority of State law, having in his custody or control a prisoner, who shall conspire, combine, or confederate with any person to injure or put such prisoner to death without authority of law, or who shall conspire, combine, or confederate with any person to suffer such prisoner to be taken or obtained from his custody or control for the the purpose of being injured or put to death without authority of law shall be guilty of a felony, and those who so conspire, combine, or confederate with such officer or employee shall likewise be guilty of a felony. On conviction the parties participating therein shall be punished by imprisonment of not less than five years or for life.
SEC. 4. The district court of the judicial district wherein the person is injured or put to death by a mob or riotous assemblage shall have jurisdiction to try and to punish, in accordance with the laws of the State where the injury is inflicted or the homicide is committed, any and all persons who participate therein: Prorided, That it is first made to appear to such court (1) that the officers of the State charged with the duty of apprehending, prosecuting, and punishing such offenders under the laws of the State shall have failed, neglected, or refused to apprehend, prosecute, or punish such offenders; or (2) that the jurors obtainable for service in the State court having jurisdiction of the offense are so strongly opposed to such punishment that there is no probability that those guilty of the offense can be punished in such State court. A failure for more than thirty days after the commission of such an offense to apprehend or to indict the persons guilty thereof, or a failure diligently to prosecute such persons, shall be sufficient to constitute prima facie evidence of the failure, neglect, or refusal described in the above proviso.
SEC. 5. Any county in which a person is put to death by a mob or riotous assemblage shall forfeit $10,000, which sum may be recorered by suit therefor in the name of the United States against such county for the use of the family, if any, of the person so put to death; if he had no family, then of his dependent parents, if any; otherwise for the use of the l'nited States. Such action shall be brought and prosecuted by the district attorney of the United States of the district in the l'nited States district court for such district. If such forfeiture be not paid upon recovery of a judgment therefor, such court shall have jurisdiction to enforce payment thereof by lery of execution upon any property of the county, or may otherwise compel payment thereof by mandamus or other appropriate process; and any officer of such ceunty or other person who disobeys or fails to comply with any lawful order of the court in the premises shall be liable to punishment as for contempt and to any other penalty provided by law therefor.
SEC. 6. In the event that any person so put to death shall have been transported by such mob or riotous assemblage from one county to another county during the time intervening between his seizure and putting to death, the county in which he is seized and the county in which he is put to death shall be jointly and severally liable to pay the forfeiture herein provided.
Sec. 7. Any act committed in any State or Territory of the l'nited States in violation of the rights of a citizen or subject of a foreiwn country secured to such citizen or subject by treaty between the l'nited States and foreign country, which act constitutes a crime under the lays of such state or Territory, shall constitute a like crime against the peace and dignity of the United States, punishable in like manner in its courts is in the courts of said State or Territory, and within the period limited by the laws of such state or Territory, and may be prosecuted in the courts of the United States, and upon conviction the sentence executed in like manner as sentences upon convictions for crimes under the laws of the United States.
SEC. 8. If any provision of this Act or the application thereof to any person or circumstances, is held invalid, the remainder of the Act, and the application of such provision to other persons or circumstances, shall not be affected thereby.
Senator VAN NUYS. The authors of the bill are the Senator from Colorado, Mr. Costigan, and the Senator from New York, Mr. Wagner. The hearing today is to be devoted to those who are in favor of the passage of the measure. We have quite a large number of out-of-town visitors who desire to be heard and I shall not consume the valuable time of the committee by any extended remarks of an introductory nature.
I take pleasure at this time in calling upon the distinguished Senator from New York, Mr. Wagner, the coauthor of the bill, who will explain the same and its purposes and provisions.
STATEMENT OF HON. ROBERT F. WAGNER, A SENATOR FROM
THE STATE OF NEW YORK
Senator WAGNER. Mr. Chairman, I shall make only a very brief statement and leave to my distinguished colleague and coauthor a more detailed explanation of the provisions of the bill.
In mankind's long struggle to attain a civilized mode of life no gain has been more dearly won, and no gain has been more worth winning, than the subordination of mob law to constituted authority, and the guaranty of a fair trial to any person, no matter what the charges leveled against him. The crime of lynching thus constitutes the most serious assault on civilization.
In an age when many humane people question t righteousness of painless capital punishment even for those judged guilty by their peers, the lyncher inflicts a torturous and brutal death upon those who have not been judged at all. Of the 452 people lynched between 1918 and 1928, 42 were burned alive and another 32 were subjected to treatment equally ghastly. Only the merciful lyncher is satisfied to drag a victim from his home and to riddle his body with bullets.
Anyone who attempts to envisage the evils of lynching cannot stop short with the 25 to 50 human beings who are done to death every year. It is necessary to contemplate the devastating effect upon their families. It is necessary to read about the instance, not many years ago, where a wife and daughter were forced to stand and watch their husband and father being burned at the stake. Above all, it is necessary to realize that lynching is directed primarily against a single group.
We cannot blink the fact that out of the 554 people lynched between 1918 and 1934, 503 were members of the Negro race. This is a matter of common knowledge. It is a mockery of the principle of political equality that has been sealed with the blood of countless Americans of every race and creed. It is an outrage against the Negro race, whose progress since release from slavery has been one of the most inspiring episodes of modern times.
The poisonous effects of the crime reach further still. It would be futile to attempt to measure its effects upon those who instigate or lead a maddened mob. But there are thousands of people, swept into the current by the frenzy of the moment, who suffer a moral relapse from which recovery is almost impossible. Children present at a lynching, as is frequently the case, or even living in an environment where a lynching is the chief topic of public interest, are inoculated with a virus that may course through their veins as long as they remain on earth.
The locality and the State are inevitably drawn into the picture. A lynching is such a horrible strain upon the repute of a section that every effort is made to efface it. And the only method of effacement is apology. These apologies include a mass of dogmas, prejudices, and falsifications that exercise a pernicious effect upon the public welfare. It is a tragic spectacle to watch people who abhor lynching forced by the pressure of events to make extenuating pleas for the evil in their midst.
Viewed in these broader aspects, the lynching problem is not confined to individuals, nor to a single race, nor to a section of the country. It is a stigma upon our Nation, which must be removed if we are to achieve our own high ideals and avoid the scorn of enlightened countries.
The argument is made frequently that the lynching problem must be left to the States. The answer is that it has been left to them, and with what results! There have been 91 lynchings since the beginning of 1928. There were 28 lynchings in 1933, of which 17 occurred during the last 5 months of the year. Of these 28 victims, 15 were charged with only minor offenses, and the record ended with the brutal killing of a person whom a grand jury had refused to indict. Two more were added to the list in January 1934.
To insist upon only State relief overlooks the essential character of the lynching problem. The very States that should do the most are in a position to do the least. Where the largest number of lynchings occur, it is hardest to prosecute the perpetrators or to indict officers who have been derelict in their duties. The crucial test of local authority comes at the very time when the air is heavily laden with hate, and when the sober elements in the population have been subdued by the passions of the mob.
To advocate with sincerity a real attack upon lynching is to advocate a Federal law. The bill that Senator Costigan and I have introduced imposes a fine not exceeding $5,000, or imprisonment not exceeding 5 years, or both, upon any State or local officer whose duty it is to protect an individual, and whose lack of diligence contributes toward the injury or death of such individual at the hands of a mob of three or more people.
The same penalty is provided for any State or local officer who fails to exercise all diligence in performing his duty to apprehend, keep in custody, and prosecute to final judgment, any person participating in a mob which injures or kills a victim. If any officer having a prisoner in his custody or control actually conspires with the mob or participates in its activities, he is subjected to a term of imprisonment ranging from 5 years to life. In addition, an absolute liability of $10,000 is imposed upon any county in which an individual is murdered by a mob.
In any case where the officers of a State or locality have failed to apprehend, prosecute, or punish those who have, by mob action, injured, or killed a victim, or in any case where the jurors obtainable for service in te court having jurisdiction are so strongly opposed to punishment as to make a genuine trial improbable, the Federal court in the district where the outrage has occurred is vested with authority to try and punish the offenders in accordance with State law.
Finally, the bill makes any crime against State law which violates the treaty rights of a foreigner a like crime against the United States, punishable in the Federal courts.
It is clear that the bill involves no desire to supplant State action with Federal action, or to remove from the States their primary responsibility for the protection of their citizenry. It provides for Federal action only where the State has failed, and I am confident that its first effect will be to awaken the States to a keener realization of their own duties.
The constitutional objections to this bill do not impress me. The fourteenth amendment forbids any State to deny any citizen the equal protection of the laws, which includes the right to a fair trial. Congress is empowered to enforce this provision by appropriate legislation. The power to enforce must include the power to punish, and therefore the validity of a fine is clear. Of course, the State is responsible for the action of its officers, and can be penalized for their misdoings. Likewise, Congress may penalize the officers themselves, as the constitutional prohibition against a State denying equal protection is also a prohibition against its agents.
The power of the Federal courts to try citizens of States, where such trial is necessary to preserve constitutional guarantees that the State courts are not preserving, is equally clear. In the famous case of Moore v. Dempsey (261 U.S. 86), the Supreme Court reversed an Arkansas court which had dismissed a writ of habeas corpus granted to Negroes because their trial had been dominated by a mob.
The times which try men's souls” often quicken their sense of justice and their aspiration for betterment. The only benefit of the depression, so far as I can see, is that it has brought into sharper relief the salient evils of our political and economic system, and impelled us into a sweeping campaign for reform. There is no evil greater than mob violence, and there is no reform for which I have pleaded with greater certainty of its wisdom than favorable action upon this bill.
Senator VAN NUYS. We have with us this morning the other coauthor of the bill who needs no introduction to the committee or the audience, the eminent Senator from Colorado, Mr. Costigan. We will now hear from him.
STATEMENT OF HON. EDWARD P. COSTIGAN, A SENATOR FROM
THE STATE OF COLORADO
Senator Costigan. Mr. Chairman and gentlemen of the committee, late last November a tidal wave of resentment and indignation swept across America when Governor Rolph, of California, publicly defended inaction by himself and other peace officers in that State, and, without proven knowledge of the guilt or innocence of the victims, sought to glorify in his jurisdiction preventable and typically barbarous lynchings of two white youths. In a flash our people's wrath,
visioning the cumulative horror of two generations of such slaughter, spread from sea to sea. In its advance it submerged the law-abiding technicalities of State lines. It emphasized unavoidable national power and self-respect and drove its appeal past local official anarchy to our land's highest legislative and judicial temples where citizenship and justice can, when necessary, be protected. In every section of the country a demand for a new deal of law enforcement, rooted in equal rights, fed the flames of resolute intelligence.
The criminality and ever-smouldering menace of this age-old evil has led to the joint submission to Congress by my able New York colleague, Senator Wagner, and by me of the carefully considered draft of today's proposed legislation. The issues it raises in the present Congress and the facts and principles which vitally inspire it are simple. America, in spite of all its contributions to civilization, stands today both unique and impaired in reputation as a country in which governmental officials are permitted, with the sanction of local opinion, to surrender on demand those whom the law has taken into custody to the holiday blood lust and torture of irresponsible and riotous mobs.
The bare statistical recital begins and should suffice to end the discussion. In 1933 twenty-eight human beings were lynched in the United States. In the lifetime of various persons present in this room the aggregate number of persons lynched in this country has been not less than 5,050, of whom at least 1,450 victims were white men and women and 3,600 Negroes. If one can mention, much less picture, such appalling facts without being sickened into permanent protest, he is indeed hardened beyond all sensibility to mercy. Such happenings destroy our claim to civilized life. They must not be permitted to multiply.
One curative step lies in the direction of Federal antilynching legislation. With respect to its constitutionality, let it be merely said at this moment that we may confidenly enact national remedies for such wrongs prompted, as they are, with indifference or lawlessness by State agents in defiance of equal legal protection for those whose national citizenship is as undisputed as their State citizenship.
Every repetition of mob brutality denies its victims the speedy and impartial trial and equal protection of the laws guaranteed by the Constitution. No man touched by the limitations of this world can be permitted to disregard the safeguards of fair trial and to usurp the combined functions of prosecutor, judge, juror, and executioner of his fellowman. Whenever, therefore, any State in our Union fails to protect such basic and equal rights, the Federal Government, in obedience to the Constitution and our natural and inalienable inheritance, should do its utmost to repair the damage which then is chargeable to us all.
These affirmations rest on living American principles, which, as they are applied or rejected, will make or mar history. One is that ours should be fundamentally a government of equal laws and not of tyrannical men. Another, that justice to human beings—not to some, but to all—is the foremost concern of the State. The manner in which we practice these principles fixes our choice between democracy and despotism; between Washington and Lincoln on the one side and Hitler and Mussolini on the other.