An unlikely statutory candidate has recently emerged to aid the federal prosecution of state and local public corruption: the criminal civil rights statutes. In the wake of newly placed limitations on other sources of criminal liability in this area, the government’s reliance on these statutes may increase in the future. Given the contentious nature of the debate concerning the Justice Department’s role in prosecuting both public corruption and civil rights crimes, the potential employment of this old statutory tool in a new area deserves more considerable attention.
While a great deal of scholarship focuses on the qualified immunity doctrine surrounding 18 U.S.C. § 1983, very little study has been devoted to its criminal cousins, 28 U.S.C. §§ 242 and 241. This essay canvasses the rare but storied employment of the criminal civil rights statutes in a variety of contexts, and the doctrinal confusion surrounding them. It ultimately answers the questioned posed in its title in both the affirmative and the negative. While § 242 might present a viable candidate for targeting public corruption, § 241 presents substantial constitutional concerns if used in this context.
Comment,
Yale Law School, J.D. 2018. This Comment would not have been possible without the wisdom and feedback of Professor Kate Stith. Thanks also to the Yale Law & Policy Review editors, in particular Charlie York, Will Bekker, and Matteo Godi. Finally, thanks to Samir Doshi for providing thoughtful advice and a sense of humor.
