As his successor’s confirmation nears, Attorney General Eric Holder has been on a farewell tour?giving exit interviews, penning editorials, and preparing for his last day at the Department of Justice, which is unveiling a commemorative portrait of him on Friday. In one interview, Politico?s Mike Allen pressed him about the ongoing Ferguson investigation. Holder dodged, but did say he wants to give ?serious consideration? to adjusting the legal bar for investigating cases of police brutality?specifically, the level of intent required to prosecute civil-rights crimes.
?I think that if we adjust those standards, we can make the federal government a better backstop?make us more a part of the process in an appropriate way to reassure the American people that decisions are made by people who are really disinterested,? Holder said. ?I think that if we make those adjustments, we will have that capacity.?
Holder didn?t specify the nature of the adjustments, but there?s a lot to unpack in that statement. The ?better backstop? is a reference to the seeming failure of DOJ to prosecute notable incidents of police violence against minorities, particularly cases where state prosecutions have been called into question. On Tuesday, the department announced it found ?insufficient evidence? to federally prosecute George Zimmerman, the Florida man acquitted in state court for the killing of Trayvon Martin. And with an announcement on Ferguson looming?Holder told Politico he plans to make it before he leaves office?there?s no guarantee DOJ will be prosecuting officer Darren Wilson, either.
So how can DOJ be better at these cases? The only way is with a legislative fix, and that?s where Holder is bound to run into issues. For one, it?s no secret that Congress is not fond of him. As of October, he and the House Oversight and Government Reform Committee were still engaged in a court battle over the non-disclosure of documents in connection with DOJ?s handling of the Operation Fast and Furious. That case stemmed from a separate standoff where Congress voted to hold Holder in contempt?the first time the measure was deployed against a sitting Cabinet member.
But even if Congress ignored this political baggage, Holder would still have to convince lawmakers that lowering the bar for civil-rights offenses is a good idea. And here the arguments turn on both policy and politics. The policy argument is constitutional: Every defendant has a right to due process under the law?even those accused of the most heinous, racially motivated killings. 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: It was famously met when a federal grand jury indicted four officers for the 1991 beating of Rodney King; the case even made a trip to the Supreme Court. But it has proven ineffective in more recent incidents, including the Zimmerman case.
Here lawmakers would face a tough choice. A high bar for civil-rights prosecutions ensures that only the most egregious cases of official misconduct and civilian intolerance receive federal scrutiny. The government punishes truly racist forms of violence?as well as offenses predicated on a bias against the victim’s religion, disability, or sexual orientation. Lowering the bar would not only break with that tradition, but changing the ?willful? requirement to include, say, merely ?knowing? or ?reckless? behavior runs the risk of sweeping too broadly. It could open up more mundane forms of assault to federal prosecution?cases that may appear racially motivated, but that in reality turned out to be someone doing something stupid or acting in self-defense. A drunken brawl that leads to death could be viewed as reckless. If you throw race in the mix, does the killing automatically become racially motivated?
To be sure, all physical violence should be proscribed, but some kinds, like the drunken brawl, are best reserved for state and local authorities to investigate. As it is, the federal government already has far too many laws on the books at its disposal with lax or no intent requirement, and federal prosecutions can be overzealous. Just this week, Supreme Court Justice Elena Kagan complained of ?overcriminalization and excessive punishment? in federal law.
Holder’s quote raises a sensitive political issue, too. At present, DOJ relies on separate statutes to investigate civil-rights crimes?one that covers private persons (the Martin-Zimmerman case), and one that covers public servants (Michael Brown-Darren Wilson). Will Holder propose to lower the bar for all these laws across the board, or only for one group and not the other? Law enforcement’s staunchest supporters would oppose legislation making it easier for violent police officers to go to prison, and law enforcement’s staunchest critics wouldn’t accept lower the bar for private citizens only. If the Ferguson aftermath has taught us anything, it?s that Americans are divided on whether cops deserve the benefit of the doubt or should be held accountable to the fullest extent of the law.
Whatever Holder decides, he?s confident he?s done his part. ?I don?t think anybody would be able to look at this Justice Department over the last six years,“ he told Politico, „and say that we?ve been anything other than aggressive in trying to root out inappropriate police conduct while, at the same time, trying to establish?or reestablish?bonds of trust between communities of color and people in law enforcement.?
Cristian Farias is a journalist and lawyer who writes on civil rights, criminal justice, and the courts. You can follow him on Twitter.