The Need For a Federal Response to the Civil Rights Issue of Our Time

[sheshe2]

Cristian Farias notes the standard of proof that applies to federal prosecution of civil rights cases.

Currently, federal civil-rights laws require those defendants to act “willfully” before they can be found guilty. It’s an extremely high bar that yields mixed results.

An alternative would be to lower the standard from “willfully” to “knowing” or “reckless.” That wouldn’t be unprecedented. In cases of housing and employment discrimination, the courts set the standard at “disparate impact,” removing the question of intent from the burden of proof.

A change like that would require Congressional action. And I can hear what you’re thinking now: “Not gonna happen.” I agree. But I also know that people would have said the same thing about the Civil Rights Act of 1964 back when the Montgomery Bus Boycott began in 1955.

The way I see it is that we have two options right now: (1) Continue with the status quo of leaving this up to individual states and jurisdictions, or (2) Develop some ideas about how the federal government can step in to ensure the “right to life” for people of color. Here is something to keep in mind as we make that call:

Read it All Here: http://washingtonmonthly.com/2016/07/07/the-need-for-a-federal-response-to-the-civil-rights-issue-of-our-time/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+washingtonmonthly%2Frss+%28Political+Animal+at+Washington+Monthly%29

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#BlackLivesMatter

[Igel]

1. Poor either/or choice.

1. Disparate impact is nasty. You don't have to intend anything or be aware of anything. But if there's a racial skew to the outcome, or a racial skew can be detected without there being a damned good reason for it related not to the subject pool but the criteria for selection or services, you're assumed guilty. Sometimes you have a chance to fix it. Sometimes you don't. I first heard of disparate impact when I was in grade school and thought it was a stupid idea. It's convenient, it serves a good cause, it's facile, and it's empowering--but ultimately it assumes everything done must be willful even if there's no evidence except what's been done, and ensconces unequal treatment as a cornerstone of a civil right. It criminalizes lack of omniscience.

And the racial skew usually only goes one way. Unless you're in a protected class, disparate impact--heck, overt discrimination--doesn't much count under this particular statute.

2. Why require that the statute change "willfully" to "knowingly" or "recklessly" (they're different things)? Have two statutes: One with a larger sentence for intentional acts, one with a lower sentence for negligent acts. We do that with lots of other crimes, why should this one be exceptional?

Not every end justifies the means. In fact, it's usually better to look at means and figure out what needs to be fixed
in the input rather than tweak the means to produce the right outcome. Fixing process is hard enough; fixing outcome is pretty much impossible.