Skip Navigation
Analysis

How Congress Can Give Teeth to the Federal Law on Police Accountability

By updating federal criminal civil rights law, Congress can make criminal consequences more likely for police misconduct and brutality.

cops
Eric Baradat/Getty

When I teach civil rights law, I always start the semester with a mislead­ingly straight­for­ward hypo­thet­ical scen­ario. Imagine a police officer pulls over an unarmed driver for a broken tail­light and even­tu­ally shoots and kills the driver. Did the officer break any crim­inal or civil rights laws? This exer­cise never fails to set off a fiery debate: “Did the driver obey the officer?” “Why could­n’t the cop have used a taser?” “Don’t people have a right to not to be killed over a minor traffic infrac­tion?” And sooner or later, one student typic­ally reminds the class of a funda­mental point about Amer­ica: “But he’s a police officer.”

Think about that. “But he’s a police officer.”

When cops, unlike aver­age civil­ians, deploy brute force under certain circum­stances, we excuse the viol­ence as law and order. But when law enforce­ment officers abuse their author­ity, viol­at­ing our rights, we have federal crim­inal civil rights law to hold them account­able.

Except we pretty much don’t.

Section 242 of Title 18 of the federal code makes it a crime for a public offi­cial acting in their offi­cial capa­city to will­fully deprive a person of their consti­tu­tional rights. Yet prosec­utors rarely bring charges under the stat­ute, aver­aging just 41 cases per year. The recent federal indict­ment of the Minneo­polis police officers related to the killing of George Floyd is an excep­tion that high­lights just how infre­quent such prosec­u­tions are, even when they are clearly warran­ted.

Why? The answer boils down to a little-known 1945 Supreme Court case called Screws v. United States.

In that case, Sher­iff Claude Screws of Baker County, Geor­gia, had arres­ted Robert Hall, a Black man, for allegedly steal­ing a tire. Screws and two other officers then drove Hall to the local court­house, where they bludgeoned him — while he was hand­cuffed — with their fists and a black­jack. The officers then dragged Hall’s limp body from the court­house to the jail and called an ambu­lance. Hall died within the hour.

Screws was charged and convicted under the law known today as 242. But he appealed. Screws’s argu­ment went some­thing like this: because 242 is so poorly writ­ten, he could­n’t have known that he was break­ing it. And punish­ing him for a law that he could­n’t have known he was break­ing, his logic ran, viol­ated his due process rights under the Fifth Amend­ment.

The Supreme Court agreed and over­turned Screws’s convic­tion. To hear the justices tell it, the stat­ute was indeed so vague that it had failed to give him fair warn­ing about what he could and could­n’t do. But rather than strike down 242, the Court decided instead to save the law from uncon­sti­tu­tion­al­ity, hold­ing that to viol­ate the law, a public offi­cial need “will­fully” deprive a person of their consti­tu­tional rights.

If only curing 242’s defi­cien­cies had been so simple.

But Congress can fix it, and the Bren­nan Center has published a report laying out a blue­print enabling lawmakers to do just that. And it is essen­tial because there are so many places where a lack of local account­ab­il­ity allow police to act with impun­ity. The broad strokes are illus­trated by our two main sugges­tions.

Start with 242’s due process prob­lem. Recall from the Screws case that crim­inal defend­ants bear a right to know what conduct is illegal. Our first recom­mend­a­tion would take care of this by having Congress spell out what conduct is off limits. It can do this by includ­ing some of the most egre­gious crim­inal civil rights viol­a­tions the Supreme Court has long under­stood as out-of-bounds — excess­ive force, sexual miscon­duct, and delib­er­ate indif­fer­ence to the medical needs of a person in custody.

Turn now to 242’s high stand­ard-of-proof prob­lem. Thanks to the Screws opin­ion, prosec­utors must estab­lish beyond a reas­on­able doubt that a public offi­cial “will­fully” deprived a person of their rights. But prov­ing specific intent — basic­ally, estab­lish­ing what a person was think­ing when they acted — is a diffi­cult needle to thread. Hence prosec­utors’ reluct­ance to bring 242 charges. Indeed, just look at what all it took for Derek Chau­vin’s 242 indict­ment to happen: a chilling video captur­ing the barbaric plun­der of George Floy­d’s body that sparked a national racial awaken­ing.

Our second recom­mend­a­tion would remedy this. Congress should lower 242’s intent stand­ard from “will­fully” to “know­ingly or reck­lessly.” No longer would a jury need to try to peer into a defend­ant’s mind as part of find­ing a defend­ant guilty.

By taking together our twin sugges­tions, Congress would make it easier to pursue and prove 242 viol­a­tions. And that would signal that our Consti­tu­tion cannot toler­ate palp­able miscon­duct and brutal­ity. That the lives of those routinely subjec­ted to state cruelty matter. That Amer­ica can be better than this.