The Injustice Department
On January 7, 2021, a day after the insurrection at the U.S. Capitol, Merrick Garland made his first speech after being nominated to serve as President Joe Biden’s attorney general. Garland spoke of the Department of Justice’s (DOJ) fundamental duty to ensure that there is not “one rule for the powerful, another for the powerless” and “that all citizens are protected in the exercise of their civil rights.” Garland has repeated these themes in speeches throughout the past year.
But what if those civil rights are violated by the federal government, or a federal official? In those cases, the Justice Department has shown that it is far more likely to participate in the violation, defend the perpetrator, or look the other way than it is to hold the federal government or its officials accountable.
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The Department of Justice was a central participant in two of the worst rights violations by the U.S. government in the past 20 years: the torture of prisoners in government custody after September 11, and the forcible separation of parents and children at the Mexico-U.S. border in 2017 and 2018. When those policies ended, DOJ failed to prosecute their architects, declined to impose any professional discipline on the attorneys involved, and sought dismissal of victims’ civil suits for damages.
Torture and family separation are particularly stark examples, but they are symptomatic of a general failure of the Justice Department to protect individual rights.
A Lack of Accountability
Failures of Criminal Investigation and Prosecution
It is a federal crime for any government official, federal or state, to willfully deprive a person “of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” But this law (known as the law enforcement misconduct statute, and codified at 18 U.S.C. § 242) is systematically under-enforced. In Fiscal Year 2019, federal prosecutors brought charges for violations of this law in only 49 cases, out of a total of 184,274 federal prosecutions. Federal prosecutors turn down nine out of 10 of these types of cases referred to them — one of the highest declination rates for any crime. Other federal civil rights statutes, such as those criminalizing hate crimes and conspiracies to violate individuals’ rights, have similarly low prosecution rates and high declination rates.
The low rate of prosecution can be partially explained by weaknesses in the law enforcement misconduct statute, particularly the requirement that the government prove that a defendant acted “willfully,” a higher bar than for most crimes. Nonetheless, the Justice Department is cautious to a fault when it comes to charging law enforcement.
Federal prosecutors have declined to bring charges even in notorious cases where there is video evidence of a police killing. In 2014, there was a video of Officer Daniel Pantaleo placing Eric Garner in a chokehold, with several other officers holding Garner down. Garner repeated “I can’t breathe” several times before losing consciousness and dying. But according to Department of Justice prosecutors, rather than showing a criminal rights violation, “the video documents a tense and escalating encounter between Mr. Garner and officers, and shows that the officers had to make split-second decisions under stressful circumstances.”
Federal prosecutors similarly declined to charge Officer Timothy Loehmann for shooting 12-year-old Tamir Rice in Cleveland, Ohio. A surveillance video showed that Loehmann shot Rice at close range less than two seconds after Loehmann jumped out of his still-moving patrol car. The Justice Department closed the case without ever convening a grand jury to gather or evaluate evidence, after supervisors first ignored and then declined career prosecutors’ requests to do so.
Failures of Civil Enforcement and Internal Discipline
When it comes to civil rights violations by state and local police or corrections officers, the Department of Justice does not rely solely on criminal investigations or prosecutions. In 1994, Congress authorized the Justice Department to investigate and, if warranted, file civil enforcement suits to eliminate a “pattern or practice of conduct by law enforcement officers ... that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.”
DOJ’s Civil Rights Division has opened over 70 pattern-or-practice investigations into police or sheriff’s departments since then, with a majority ending in a negotiated settlement requiring major reforms. Many of these investigations have targeted jurisdictions where police killings of Black people led to widespread protests. During President Barack Obama’s administration, the Civil Rights Division investigated Ferguson, Missouri after the killing of Michael Brown, Chicago after the murder of Laquan McDonald, and Baltimore after Freddie Gray suffered a fatal spinal cord injury in a police van. In all three cases, the Civil Rights Division found compelling evidence of systemic rights violations by police. There are currently active investigations into police departments in Louisville (where officers killed Breonna Taylor) and Minneapolis (where Derek Chauvin murdered George Floyd, and a police officer recently killed Amir Locke), among others.
An older federal law, the Civil Rights of Institutionalized Persons Act of 1980 (commonly known as “CRIPA”), similarly authorizes the Justice Department to bring lawsuits against prisons, jails, and other institutions engaged in a “pattern or practice” of depriving persons in custody of their constitutional rights.
But, according to the Civil Rights Division’s website, it has no authority to investigate systemic abuses by federal law enforcement or at federal prisons, which neither statute mentions. The president could authorize the Civil Rights Division to investigate the federal government’s compliance with the Constitution by executive order, but no president has ever done so.
Then there’s the question of resources and personnel. The Civil Rights Division’s Special Litigation Section, which oversees DOJ’s pattern-or-practice work, is miniscule compared to the number of law enforcement agencies, jails, prisons, and other institutions in the United States’ criminal legal system. There are approximately 18,000 state and local police agencies in the U.S., employing over 1 million officers. There are also 1,833 state prisons, 3,134 local jails, and over 2,300 prosecutors' offices. From 2010 to 2015, there were fewer than 50 lawyers working for the Special Litigation Section. Under the Trump administration, Attorneys General Jeff Sessions and Bill Barr were actively hostile to the Special Litigation Section’s work, placing new limits
on its authority
and cutting its staff and resources.
There are other entities within the federal government that have some authority to investigate abuses by federal law enforcement, but they all have serious limitations. The Department of Homeland Security’s Office for Civil Rights and Civil Liberties, which investigates complaints of rights violations by DHS, cannot contradict the official DHS view of whether the agency’s policies are legal, and cannot compel compliance with its demands for information or its recommendations. Its reports are also routinely hidden from the public and Congress.
Along with most federal departments, the Justice Department and the Department of Homeland Security have inspectors general that can investigate allegations of “fraud and abuse.” But inspectors general tend to focus their critiques on financial waste, fraud, or inefficiency rather than rights violations, and many see violations of individual rights as outside of their authority or expertise. The Department of Justice’s inspector general is particularly limited in its ability to investigate allegations of professional misconduct by attorneys, placing most of the Justice Department’s senior leadership beyond its reach.
The internal affairs offices for federal agencies have an even worse track record. The Justice Department’s Office of Professional Responsibility, which has the authority to investigate allegations of misconduct by DOJ attorneys, is secretive and ineffective. The Bureau of Prisons’ Office of Internal Affairs closes almost all claims of misconduct by guards and wardens without taking action, despite mounting evidence of serious abuses uncovered by other sources. Customs and Border Protection’s Office of Professional Responsibility relies on Border Patrol “critical incident teams” to collect evidence after agency shootings and car chases, despite a long history of these units acting to cover up misconduct by agents.
Participation and Complicity in Human Rights Abuses
The Department of Justice as Prosecutor, Investigator, and Jailer
The Department of Justice’s history dates back to Reconstruction, and its website speaks of a “sacred duty” to ensure “equal and impartial justice to all its citizens.” But today, the Justice Department is primarily a law enforcement agency. It spends most of its resources investigating allegations of federal crimes and national security threats, prosecuting cases, and detaining and incarcerating people.
Statistically, the majority of federal convictions in recent years have been for nonviolent drug and immigration offenses. The two most prosecuted federal offenses over the past decade are 8 U.S.C. § 1325, which makes it a misdemeanor to enter the U.S. without permission, and 8 U.S.C. § 1326, which makes it a felony to reenter without authorization after a previous deportation. In Fiscal Year 2019, there were over 105,000 federal prosecutions under sections 1325 and 1326. (Those numbers have declined dramatically since the COVID-19 pandemic began and the Border Patrol began expelling migrants rather than referring them for prosecution.) Both prohibitions were originally passed as part of the “Undesirable Aliens Act of 1929,” a law drafted by white supremacists and eugenicists who acknowledged that it was targeted at Mexican immigrants. In August 2021, a federal district judge found that the law was unconstitutional because it was motivated by racial animus — a decision the Justice Department is now appealing.
The overwhelming majority of all federal convictions (97%) are obtained through guilty pleas, often under highly coercive circumstances. Almost 75% of federal defendants are detained before trial, with detention being particularly common for drug and immigration offenses. The Department of Justice exercises little to no oversight of pretrial detention facilities, and conditions are often extremely poor. Defendants who do not waive their right to trial face much longer sentences. In drug cases, prosecutors can use mandatory minimum laws to threaten defendants with sentences of a decade or more — or, in some cases, life imprisonment — unless they plead guilty.
In immigration cases, the sentences are generally shorter, but other circumstances (including the use of mass hearings and the lack of any meaningful access to counsel) make guilty pleas equally coercive. The coercion reached its peak under the Trump administration’s “zero tolerance” policy, when parents were separated from their children and prosecuted for illegal entry. Most pled guilty without knowing where their children were, or if they would ever see them again.
Fortunately, that practice has ended — but cruelty in plea bargaining has not. NPR recently reported that at least six U.S. Attorneys’ offices have sought to condition plea deals on defendants waiving their right to seek compassionate release from prison because of extraordinary family or medical circumstances, a practice a federal judge denounced as “unconscionable” and “inhumane.” (The Justice Department has announced it would limit this practice.)
The Department of Justice’s law enforcement role is not limited to prosecutors. Of its 115,000 employees, only a small fraction are attorneys. Approximately 35,000 work for the FBI, nearly 37,000 for the Bureau of Prisons, close to 10,000 for the Drug Enforcement Administration, and over 5,000 each for the U.S. Marshals Service and the Bureau of Alcohol, Tobacco, Firearms and Explosives. Together these account for a large majority of the agency’s workforce — greatly outnumbering the lawyers and support staff at headquarters or U.S. Attorneys’ offices.
Like state and local police, federal law enforcement agents do not consistently respect individual rights. The FBI is not the abusive agency it was under J. Edgar Hoover, when the bureau’s COINTELPRO operations sought to infiltrate and destroy civil rights, anti-war, and other activist groups. But the FBI still disproportionately targets racial minorities for intrusive surveillance and sting operations, while giving much lower priority to investigating violent far-right groups. In the wake of September 11, the FBI weakened the post-COINTELPRO restrictions on surveillance, and enthusiastically embraced invasive new surveillance technology. The Drug Enforcement Administration has also engaged in dragnet surveillance. Prosecutors have concealed these evidence-collection techniques from criminal defendants.
An investigation by USA Today and The Marshall Project found that the U.S. Marshals Service had fewer restrictions on the use of deadly force than many state and local police departments. They shot and killed more people on average from 2015 to 2020 than a comparably sized city police force, and released much less information about those shootings or any discipline of the officers responsible. An Associated Press investigation of the federal Bureau of Prisons described the agency as “a hotbed of abuse, graft and corruption,” which “has turned a blind eye to employees accused of misconduct.”
Of course, the Justice Department itself is only one federal agency among many. There are over 1.4 million active-duty members of the U.S. military, and over 2 million civilians employed by the executive branch. And at the top of the executive branch is the president of the United States, the most powerful person in the world. What is the Justice Department’s role in ensuring the president and his subordinates do not violate people’s rights, and how does it respond when they do?
The Office of Legal Counsel: The President’s Enabler
One small but extremely powerful office within the Justice Department is the Office of Legal Counsel, commonly known as OLC. OLC advises the president, the attorney general, and federal agencies about whether proposed policies and executive actions are legal. In theory, the office should act as an important check to prevent the executive branch from violating the law. In practice, as we have written elsewhere, the office often acts as an enabler.
The most infamous example of this is the post-September 11 “torture memos,” which relied on absurd claims of executive power and blatant factual inaccuracies to find that the CIA’s “enhanced interrogation techniques” were lawful. Those memos were eventually repudiated and withdrawn, but not before the CIA used them as a license to brutalize and even murder prisoners. Even after the memos were withdrawn, they effectively shielded CIA officers and contractors from prosecution.
Another OLC memo, also drafted after September 11 and abandoned, authorized warrantless surveillance of Americans’ communications, despite the Fourth Amendment and federal statutes that explicitly forbade it.
Many other OLC opinions that take an expansive view of presidential power remain in effect. There are the memos authorizing drone strikes, including against a U.S. citizen. There are also OLC opinions endorsing unlimited presidential authority to start wars without congressional authorization, concluding that presidents cannot be indicted, and rejecting congressional attempts at oversight again and again.
OLC treats its opinions as binding precedent until they are withdrawn, but it does not accept any of the constraints that courts do. OLC conceals many of its opinions from the public, including even the titles of some OLC reports. It does not hold itself to judicial standards of ethics or impartiality, or hear arguments from opposing parties. OLC also does not challenge the president’s or executive departments’ characterization of facts that are crucial to its analysis. One former OLC attorney has written that during the Trump administration, this deference led to the office “building an alibi” for the executive branch’s unlawful actions instead of preventing them.
The Office of Legal Counsel does sometimes say no. For example, Steven Engel, who had repeatedly backed former President Trump’s stonewalling of Congress, eventually threatened to resign in response to Trump’s attempt to reverse the outcome of the 2020 election. But OLC going against the president’s wishes tends to be the exception, not the rule.
Civil Litigation: Defending the Government No Matter What
The Department of Justice also represents the U.S. government in civil litigation. This includes cases where plaintiffs sue the U.S. government for damages for violations of their rights, or to compel the government to comply with the Constitution or federal law.
The Justice Department’s default position is to defend the constitutionality of a statute and the legality of a government agency’s or official’s actions if there is any reasonable argument for doing so. There is a logic to this: The Department of Justice is the government’s lawyer, and it is zealously advocating for its client. Federal agencies and officials are entitled to a legal defense in court, just like anyone else. Still, it can lead to harmful and downright bizarre outcomes, particularly when a new president’s Justice Department litigates cases brought under their predecessor.
During the 2020 presidential campaign, Biden called family separation “criminal.” But the Department of Justice is currently arguing in court that the policy was legal and that victims’ lawsuits seeking compensation should be dismissed. This is only one of many abusive Trump-era immigration policies that the current Justice Department continues to defend.
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The Justice Department has also successfully defended the Trump administration’s tear gassing of peaceful protesters in Lafayette Square. It has argued to the Supreme Court that evidence of a Guantanamo Bay prisoner’s torture by the CIA is a “state secret,” despite being a matter of public record for over a decade. It is seeking dismissal of a defamation suit against Trump by E. Jean Carroll, who has alleged that Trump raped her many years before his presidency. This is not a new phenomenon, either. For years, Obama’s Justice Department made legal arguments that were directly at odds with the president’s stated goal of closing the Guantanamo Bay detention camp.
All these legal positions have major policy and legal consequences. The Justice Department gives great weight to these considerations when it comes to executive power — often at the expense of Congress’s own constitutional authorities. It argues that it has not only the authority but the “responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency.”
Unfortunately, the Justice Department feels no comparable responsibility to protect the rights of the most vulnerable. A lawsuit alleging that the government has committed or is committing human rights abuses generally does not trigger serious consideration of the possibility that the plaintiffs are correct, and that DOJ should settle the case, decline to appeal a lower court decision that goes against the government, concede legal arguments, or disclose evidence that could harm an agency’s legal position. The Justice Department is much more likely to refuse to discuss policies that are being challenged in a lawsuit, and to conceal evidence that could be used against it in court.
This would be less harmful if the executive branch had another mechanism for investigating and stopping rights violations by the federal government, or if we could depend on the courts to protect the rights of minorities. But no such mechanism exists within the executive branch, and the Justice Department constantly argues for judicial deference to the executive. The Supreme Court majority and many lower court judges are actively hostile to criminal defendants, immigrants, racial minorities, and others who are particularly vulnerable to government abuse of power.
Reforms to Protect Our Rights
What would it take for the Department of Justice to genuinely ensure that all citizens’ rights are protected, and that the powerful and powerless are treated alike? In the coming months, we plan to collaborate with current and former Department of Justice employees to offer a comprehensive list of policy recommendations to address these issues. In the meantime, we can offer some initial suggestions (beyond what we already suggested to the attorney general when he was nominated).
First, as we’ve been arguing for years, the Office of Legal Counsel is in serious need of reform. Making its opinions public is a necessary first step, but it’s not sufficient on its own. OLC should also adopt higher ethical standards for its attorneys, require verification of the facts that are central to its legal analysis, and regularly review its former opinions to withdraw or replace the ones it can no longer defend.
Second, the resources and authority of the DOJ’s Civil Rights Division should be expanded. Some changes would require legislation, but there are important steps that could be taken without Congress. The president should issue an executive order authorizing the division to investigate credible allegations of a pattern or practice of constitutional violations by federal law enforcement, or in federal detention facilities. (The Border Patrol is an obvious first candidate for such an investigation.) The Civil Rights Division’s staff and resources should also be increased dramatically.
Third, when it comes to the U.S. government’s position in civil cases, the Department of Justice should explicitly authorize its attorneys to consider the beneficial or harmful effects of its litigation positions on fundamental rights, instead of defaulting to whatever position maximizes presidential power or minimizes government liability.
And finally, the Justice Department should hold itself and its employees to the highest possible standards in ensuring humane jail and prison conditions, use of force and surveillance policies that respect the bill of rights, and prosecutors’ professional obligation “to seek justice within the bounds of the law, not merely to convict.” In all these areas, DOJ should adopt binding rules, create strong systems for oversight and compliance, and impose real consequences for violations.
Attorney General Garland is entirely correct about the importance of ensuring equal justice for the powerful and the powerless, and protection of fundamental rights for all. It is time for the Department of Justice to start living up to that mission.
The Constitution Project seeks to safeguard our constitutional rights when the government exercises power in the name of national security and domestic policing, including ensuring our institutions serve as a check on that power.