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Burlington Commission on Human Rights, 1964-1965

Iowa Law Review, "State Civil Rights Statute: Some Proposals" Page 1111

1964]     STATE CIVIL RIGHTS STATUTES     1111

  Another defect suffered by criminal statutes of the kind under discussion is that they must be unusually specific and will be construed narrowly. This is because due process demands that criminal statutes must accord clear and specific notice of their exact proscriptions.147 Consequently, people who would discriminate are left much room for evasive conduct outside the precise letter of the particular criminal law involved.
   A further problem with the criminal approach to law enforcement in this area is that the prosecutor must be persuaded to act. Consequently, prosecutions have been relatively few. This may partly be due to prosecutors' preoccupation with the more traditional crimes against person or property. It also may be a product of prosecutors' lack of sympathy of these kinds of statutes, their objectives, or the penalties they impose on the proscribed conduct.
   An additional point should be noted. The aim of the law in this area should be to eliminate discrimination of the kind prohibited. Antidiscrimination legislation should not be geared to work retribution upon offenders. The law should be completely satisfied when the evil at which it is directed is terminated. A criminal or penal approach will not secure this objective as effectively or easily as other approaches. The imposition of a fine upon one who violates this kind of law makes the right to equal opportunity conditional upon the size of the fine and violator's willingness to pay it. As a result, members of a minority group may still be denied a right that others of the general public share. This is because offenders may be willing to pay this price for a continued ability to discriminate. The fact that imprisonment may be made an alternative criminal sanction does not substantially change this picture. It has little effect as a deterrence because violators are usually well able to pay the fine and thus avoid the alternative of going to jail. Further, long experience indicates the great reluctance of judges to imprison people in cases involving violations of the kinds of legislation under discussion here.
   The history of criminal prosecutions under the Iowa public accommodations act from 1939 to 1950 illustrates some of the deficiencies inherent in any criminal approach to the enforcement of antidiscrimination legislation. During that decade, which is the most recent for which any comprehensive figures are available,
   twenty-two criminal prosecutions were brought under the Iowa civil rights statute against eleven defendants. Of these cases, four resulted in convictions, with fines being assessed in three. Eight cases were dropped at the request of the prosecuting witness after an agreement with the
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147 See, e.g., Lanzetta v. New Jersey, 306 U.S. 451 (1939). The fact that the criminal statutes will be construed narrowly was stressed in Brown v. J. H. Bell Co., 146 Iowa 89, 123 N.W. 23 (1909).

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1964] STATE CIVIL RIGHTS STATUTES 1111 Another defect suffered by criminal statutes of the kind under discussion is that they must be unusually specific and will be construed narrowly. This is because due process demands that criminal statutes must accord clear and specific notice of their exact proscriptions.147 Consequently, people who would discriminate are left much room for evasive conduct outside the precise letter of the particular criminal law involved. A further problem with the criminal approach to law enforcement in this area is that the prosecutor must be persuaded to act. Consequently, prosecutions have been relatively few. This may partly be due to prosecutors' preoccupation with the more traditional crimes against person or property. It also may be a product of prosecutors' lack of sympathy of these kinds of statutes, their objectives, or the penalties they impose on the proscribed conduct. An additional point should be noted. The aim of the law in this area should be to eliminate discrimination of the kind prohibited. Antidiscrimination legislation should not be geared to work retribution upon offenders. The law should be completely satisfied when the evil at which it is directed is terminated. A criminal or penal approach will not secure this objective as effectively or easily as other approaches. The imposition of a fine upon one who violates this kind of law makes the right to equal opportunity conditional upon the size of the fine and violator's willingness to pay it. As a result, members of a minority group may still be denied a right that others of the general public share. This is because offenders may be willing to pay this price for a continued ability to discriminate. The fact that imprisonment may be made an alternative criminal sanction does not substantially change this picture. It has little effect as a deterrence because violators are usually well able to pay the fine and thus avoid the alternative of going to jail. Further, long experience indicates the great reluctance of judges to imprison people in cases involving violations of the kinds of legislation under discussion here. The history of criminal prosecutions under the Iowa public accommodations act from 1939 to 1950 illustrates some of the deficiencies inherent in any criminal approach to the enforcement of antidiscrimination legislation. During that decade, which is the most recent for which any comprehensive figures are available, twenty-two criminal prosecutions were brought under the Iowa civil rights statute against eleven defendants. Of these cases, four resulted in convictions, with fines being assessed in three. Eight cases were dropped at the request of the prosecuting witness after an agreement with the ________________________ 147 See, e.g., Lanzetta v. New Jersey, 306 U.S. 451 (1939). The fact that the criminal statutes will be construed narrowly was stressed in Brown v. J. H. Bell Co., 146 Iowa 89, 123 N.W. 23 (1909).