Emory Law Journal


Daniel W. Xu


The absence of police accountability has never been more visible. High-profile police brutality has resulted in high-profile disappointment, where culpable officers walk away undisciplined, unprosecuted, and undeterred from committing the same atrocity again. Such impunity has exposed longstanding deficiencies within the United States’ two-tiered and multipolar system of civil rights enforcement. Chief among these failures is 18 U.S.C. § 242, an oft-overlooked statute that imposes criminal liability upon officers who “willfully” deprive others of any federal constitutional right. The statute’s threshold requirement of willful intent has confused courts and discouraged enforcement, resulting in the heavy underdeterrence of civil rights violations. Federal legislative efforts to reform Section 242 have been unsuccessful, and the Supreme Court seems unwilling to revisit its authoritative—but perhaps unworkable—interpretation of the statute in Screws v. United States. State equivalents fare no better, as they utilize comparable standards that present judges, juries, and prosecutors with similar roadblocks to accountability.

To remedy the impotence of Section 242 and its sub-federal offshoots, this Comment argues that state legislatures should impose criminal liability upon law enforcement agents who “recklessly” deprive others of their state constitutional rights. By lowering the mens rea required for liability and incorporating the expansive protections of state constitutional jurisprudence, this proposal criminalizes a much wider range of police misconduct than is currently prohibited. However, this change would still protect officers who reasonably adhere to the law, allowing those individuals to do their jobs without the fear of unwarranted reprisal. A recklessness standard would also allow local judges to escape the Supreme Court’s amorphous definition of willfulness in Screws, which was frequently invoked by state courts seeking to interpret Section 242’s state-level analogues. Although the expansion of criminal liability comes with many downsides, it is much needed in the realm of police misconduct, where violations routinely occur without any measure of accountability at all. For these reasons, this Comment asserts that states need a broader, more predictable, and more civilian-friendly criminal deprivation of rights statute to deter unconstitutional police behavior.