When local prosecutors fail to pursue police brutality cases, it is the responsibility of the federal government to prosecute if an individual's civil rights may have been violated. Specifically, the Criminal Section of the Civil Rights Division of the U.S. Justice Department is responsible for prosecuting these cases, using Reconstruction-era (1871) civil rights statutes. The federal criminal civil rights statute, which may be used to prosecute officers accused of excessive force, states:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States...shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.182

A conspiracy charge may also be filed:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same....[T]hey shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping oran attempt to kidnap, aggravated sexual abuse or an attempted to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.183

There are many obstacles to successfully prosecuting police officers under the federal civil rights statutes. Due to inadequate resources and, in some cases, an apparent lack of will or interest by investigators or prosecutors (in the Civil Rights Division, or among the ninety-three U.S. Attorney's offices around the country that work with the Civil Rights Division to prosecute these cases), federal authorities do not routinely collect and review cases that may be viable for prosecution under federal civil rights statutes. When they do learn of cases, before or after preliminary investigation by the Federal Bureau of Investigation (FBI), they choose to pursue and prosecute less than 1 percent.

The poor performance of federal prosecutors is due, in part, to the difficulties in prosecuting police officers generally (such as typically unsympathetic victims, witnesses who are not credible, the public's predisposition to believe police officers) and by the added requirement, as interpreted by the courts, that prosecutors prove the accused officer's "specific intent" to deprive an individual of his or her civil rights.184 As a result of the "specific intent" requirement and other stringent standards, federal prosecutors - who like their local counterparts are interested in winning cases, not merely trying them - may be less than eager to pursue cases against police officers. Human Rights Watch believes that it should be sufficient for federal criminal prosecution that a police officer intentionally and unjustifiably beat or killed a victim without the additional burden of having a specific intent to violate the victim's civil rights.

During 1991 Congressional hearings, John R. Dunne, assistant attorney general for the Civil Rights Division, described his office's view of its responsibilities in prosecuting officers: "We are not the front line troops in combating instances of police abuse. That role properly lies with the internal affairs bureaus of law enforcement agencies and with state and local prosecutors. The federal governmentprogram is more of a backstop, if you will, to these other resources."185 In response to this description of the federal role, police abuse expert Paul Hoffman noted, "This philosophy might be sensible if the Justice Department took its backstop role seriously and devoted the resources and attention necessary to make the federal government the guarantor of constitutional rights in situations where local institutions are incapable of playing this role. Instead, this philosophy is too often a convenient excuse for federal inaction."186

In large part due to lack of funding and staffing at the Criminal Section of the Civil Rights Division, which reflects the government's overall lack of commitment to prosecuting these types of cases, little has changed since Assistant Attorney General Dunne testified in 1991 about the Civil Rights Division's understanding of its "backstop" role. The current chief of the Criminal Section of the Civil Rights Division told Human Rights Watch, "The federal government is not here to stand in the way of good faith and vigorous [local] efforts" but left unanswered how the division proceeds when local efforts, and its own resources, are lacking.187

In the cities examined by Human Rights Watch, most community activists, citizen review agency staff, and internal affairs representatives had no idea how many cases federal prosecutors had prosecuted in their cities, if any. There was little outreach by the Justice Department to educate citizens and officials about its mandate and interest in prosecuting abuse cases, and there was little contact between internal affairs units and local U.S. Attorney's offices or the Justice Department; internal affairs unit representatives generally did not believe it to be their responsibility to pass on cases for possible prosecution to federal authorities.188 Citizen review agencies, likewise, had little knowledge of federal prosecutors' actions and rarely passed them appropriate cases.

Informally, some representatives of U.S. Attorney's offices did speak with Human Rights Watch and acknowledged that many of the decisions regarding whichcases to pursue were fueled by media attention and that the receipt of cases for possible prosecution was ad hoc. Community activists and local attorneys who represent individuals in police abuse cases have often submitted cases to local U.S. Attorney's offices or the Justice Department. Of those we interviewed, most who attempted to bring such cases to the Justice Department's attention received no response, and none was certain if an investigation had been initiated as a result of information they provided, even in cases where the information was specifically requested by the Justice Department.

182 18 U.S.C. §242. Until 1988, an abuse by a federal official acting alone, absent a conspiracy, was only a misdemeanor, no matter how serious the injury to the victim. In 1994's omnibus crime bill, civil rights violations became capital crimes. Human Rights Watch opposes capital punishment in all cases due to its inherent cruelty, its arbitrary and discriminatory application, and its irreversible nature.

183 18 U.S.C. §241. The 1994 omnibus crime bill made conspiracy charges a capital offense.

184 In Screws v. United States, the Supreme Court held that a conviction under 18 U.S.C. §242 required proof of the defendant's specific intent to deprive the victim of a constitutional right. Screws v. United States, 325 U.S. 91 (1945). In United States v. Guest, the Supreme Court read this same requirement into §241, the conspiracy statute. United States v. Guest, 383 U.S. 745 (1966).

185 Statement of John R. Dunne, Subcommittee on Civil and Constitutional Rights, House of Representatives, Washington, D.C., March 20, 1991.

186 Paul Hoffman, "The Feds, Lies, and Videotape: The Need for an Effective Federal Role in Controlling Police Abuse in Urban America," Southern California Law Review, vol. 66, number 4, May 1993.

187 Telephone interview, Richard Roberts, Criminal Section, Civil Rights Division, Department of Justice, November 17, 1997.

188 As described above, some statements given by officers to internal affairs investigators may not be shared with prosecutors.