Yeomans Work

Jeff Sessions and the Art of Distraction

October 25, 2017

On the eve of Jeff Sessions’s oversight testimony before the Senate Judiciary Committee, the Department of Justice announced that it was sending a civil rights prosecutor to Iowa to assist in the state prosecution of Jorge Sanders-Galvez for killing Kedarie Johnson in March 2016. Johnson identified as both male and female and the prosecution’s theory is that Sanders-Galvez was motivated by Johnson’s sexual orientation and/or gender identity. Sessions’s announcement demonstrated that he has learned the art of distraction from his boss.

The Justice Department release was timed to defuse criticism that Sessions expected at the hearing on his civil rights record generally, and most pointedly on his record regarding LGBTQ issues. Indeed, officials suggested Sessions had made the decision personally and his spokesperson stated: “This is just one example of the Attorney General’s commitment to enforcing the laws enacted by Congress and to protecting the civil rights of all individuals.”

The Justice Department rarely assigns its lawyers to assist in a local prosecution. Civil Rights Division lawyers who prosecuted hate crime cases for decades could not remember it happening. DOJ attorneys and FBI agents frequently cooperate with local authorities in investigations, but the cross-designation of a DOJ attorney to try a case with local prosecutors in state court is rare.

One of the reasons it is rare is fear of double jeopardy. [Warning: law nerd digression.] The Supreme Court has interpreted the double jeopardy prohibition of the Fifth Amendment to the Constitution (“nor shall any person be subject for the same offense to be put twice in jeopardy of life or limb”) to permit prosecutions by both the state and federal governments for the same conduct. The basic reasoning is that a state and the federal government are separate sovereigns and each has separate interests in prosecuting. The same conduct can offend the laws of each and each can prosecute because the offenses are not the same. Scholars have criticized this rule as the reach of federal criminal law and the opportunities for dual prosecutions have grown, but the fundamental doctrine has survived. This criticism, however, has raised legitimate questions around the edges, including concern that excessive cooperation by federal lawyers in a state prosecution may create a sufficiently conjoined prosecution to preempt a subsequent separate federal prosecution.

According to officials, the federal government has been conducting its own investigation to determine whether to pursue federal charges. Could Sessions jeopardize that possibility by assigning a DOJ attorney to prosecute the state offense? Recall that Sessions was a leading opponent in the Senate of the Matthew Shepard and James Byrd Hate Crime Act (18 U.S.C. 249), which would be the basis for a federal charge in this matter. Pushing the prosecution in state court to avoid section 249 would be consistent with that opposition.

Sessions’s announcement should not mute criticism of him for his record on LGBTQ issues. He came to the job with a history of opposition to same-sex marriage and basic protections from discrimination in employment. Since becoming Attorney General, he supported repeal of guidance requiring public schools to allow students to use the bathroom of their choice. He broke with the Obama Justice Department and the Equal Employment Opportunity Commission and disregarded recent holdings by courts of appeals to assert that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex, should not be read to prohibit discrimination on the basis of sexual orientation.

Sessions is following a well-worn path trod by reluctant Republicans who find themselves burdened with the obligation to enforce civil rights laws. Every Republican administration since Reagan’s has cut back significantly on enforcement of civil rights laws that combat discrimination in employment, housing, and education; protect voting; and impose civil restraints on law enforcement. Every such administration, however, has maintained enforcement of criminal civil rights laws at roughly the same level as Democratic administrations. Part of the reason is that criminal civil rights cases are difficult to prove, keeping the numbers down in any administration. Because they are difficult to prove, the ones that make it through the filter involve the most violent and reprehensible incidents, whether they involve police beatings or killings, or hate motivated violence, or human trafficking.

In response to criticism, Republican administrations have consistently discounted their cutbacks in other areas of enforcement by highlighting the egregious conduct they have punished through criminal civil rights prosecutions. Those prosecutions are a very good thing, but they are not a substitute for vigorous enforcement of all of the civil rights laws as passed by Congress and interpreted by courts. Indeed, focusing on the back end of justice – criminal prosecutions – to the exclusion of systemic civil remedies for discrimination and hate-motivated conduct is counterproductive. Civil laws, properly enforced, are a bulwark against growing inequality that facilitates explosions of violence.

The Republican approach reflects a willful misunderstanding of civil rights law. Republican administrations consistently narrow their application of civil rights laws to sanction only intentional discrimination. A focus on criminal conduct, which always requires a showing of intent, is the most dramatic manifestation of this principle. But Republican administrations apply it in all areas. They generally pursue only claims of intentional discrimination in employment, housing, and education. They dislike the “results” standard of section 2 of the Voting Rights Act. They focus on individual acts of discrimination driven by clear purpose to disadvantage on the basis of race or gender. For Republicans, too often it is an acceptable defense to argue that the perpetrator is not an overt racist. (That defense has entered our political discourse. Are you calling [the President, Senator So-and-So, the Secretary of Whatever] a racist? Why, he/she doesn’t have a racist bone in her/his body.)

Democratic administrations and civil rights advocates understand the broader, more ambitious and essential purpose of civil rights laws. They view civil rights laws as protection against individual acts of intentional discrimination, but also as tools to dismantle systemic discrimination that locks in place white, male supremacy. That requires a focus on the effects of challenged actions or laws. A written test that disproportionately excludes African Americans from jobs as police officers and is not a legitimate predictor of success on the job is discriminatory whether or not it was adopted with intent to discriminate. A decision to build low-income housing in a location that will unnecessarily exacerbate racial segregation without valid justification is discriminatory. A pay structure based on time in the office that does not account for maternity leave is discriminatory whether or not it was adopted with intent to disadvantage women. These actions all have the effect of entrenching the subordination of people based on race and gender. Effective civil rights laws must provide remedies to dismantle these structures.

So, when Jeff Sessions issues an attention-grabbing announcement that he will pursue a criminal civil rights prosecution, thank him, but don’t be distracted from his department’s failure to enforce all of the civil rights laws in a manner that will promote true equality and dismantle systemic subordination that underlies the need for criminal civil rights prosecutions.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.