Black Lives Matter protest

Throughout our history, all of the major gains we’ve achieved in civil rights have come because of federal action. It started with ending slavery via the Civil War, but continued with everything from the Brown v Board of Education decision by the Supreme Court to the undoing of Jim Crow laws via the Civil Rights Act and the Voting Rights Act. None of these things would have happened if change had been left up to individual states.

Today we must face the civil rights issue of our time – both the over-incarceration of black and brown people and the police abuses that have been capturing the headlines once again. One of the reasons so many people are frustrated is that most of the control over these issues is currently in the hands of state and local governments. Progress is – at best – a patchwork, and tends to come in jurisdictions that are probably already in the lead on addressing them.

If we are to learn anything from our past, it is time to start thinking about how the federal government should be enabled to respond. The lines aren’t as clearly drawn right now. For example, no one is claiming that separate can be equal. And yet the outcomes at every point in the criminal justice process are no less staggering that the educational disparities prior to Brown v Board of Education.

According to this site, police killed over 100 unarmed black people in 2015 (5 times the rate of unarmed white people killed by police). By comparison, over a period of 86 years (from 1882 to 1968), roughly 40 African Americans were lynched a year. When activists shout about this, saying, “Black Lives Matter,” the response from white people is often to say, “All Lives Matter.” Here is what that looks like:

So what can the federal government do? That is a question that should be on the table. But one thing stands out to me. The Civil Rights Division at the Department of Justice was created to enforce the Civil Rights laws that were passed in the 1960’s. When it comes to police abuse, that division has been extremely active over the last 7 years in investigating “patterns and practices” of excessive force, biased policing and other unconstitutional practices by law enforcement. That is a way to intervene in systemic issues that lead to civil rights violations. But as we’ve seen with police shootings, the division has been pretty ineffective in bringing charges against individual officers.

Shortly before he retired as Attorney General, Eric Holder identified the problem in those situations.

I think some serious consideration needs to be given to the standard of proof that has to be met before federal involvement is appropriate…

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, and I think that if we make those adjustments, we will have that capacity.

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:

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