The Brennan Center for Justice at New York University School of Law published a 26-page report and six-page annotated proposal Wednesday addressing why >18 USC § 242 makes it difficult to prosecute police, federal agents, and probation and correctional officers who engage in civil rights violations.
The foreword to the report states that the Brennan Centre conducted this study in response to recent social movements emerging from officer Derek Chauvin’s excessive use of force, which resulted in the death of 49-year-old George Floyd last May. Chauvin was convicted of murder and manslaughter on April 20. The report expresses the need to “send a clear message that the Constitution and laws of the United States prohibit public officials” for such offenses.
The report begins with a deep dive into the origins of Section 242, finding its language “dates as far back as the Civil Rights Act of 1866.” It identifies numerous historical issues that stem from the intersection of criminal prosecutions and civil rights cases and pinpoints the legal standard for wilful intent as “confusing and onerous” in these cases. It compares this standard, which incorporates a subjective element with a high threshold for proof into the requisite mens rea, with both “knowingly” and “recklessly.” This comparison highlights important temporal distinctions, suggesting that the standard for “willful intent” is the most challenging barrier for juries to interpret and assess guilt or innocence of authorities charged under this provision.
Collectively titled “Protecting Against Police Brutality and Official Misconduct,” these documents identify and propose a framework to increase enforcement accountability within the current legal system. Proposed amendments to the federal criminal code suggest revising the “willful intent” standard to “knowingly or recklessly” and clarifies the term “excessive force” in a cogent manner that extends it beyond “lethal force” and other similar terms. Other proposed amendments elaborate on excessive force, sexual misconduct, and failure to provide medical attention to persons who are apprehended or in police custody. The Center also includes extensive suggested amendments to address accountability for any person acting on behalf of the state who aids or encourages these offenses.