Maurice R. Dyson
Excerpted from: Maurice R. Dyson , Excessive Force, Bias, and Criminal Justice Reform: Proposals for Congressional Action; Introduction: a National Epidemic of Targeted Harassment & Killings , 63 Loyola Law Review 27 -75, 7761-74 (Spring, 2017) (63 Footnotes)(Full Article)
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A PROPOSED ACT:
THE STOP POLICE VIOLENCE & CRIMINAL JUSTICE REFORM ACT
BE IT ENACTED:
(1) It shall be the duty of any police or peace officer to use at all times and to ensure, to the extent practicable under the circumstances, a proper functioning body camera and, or, dash- *61 camera unit before engaging in police actions. No officer shall take any action to intentionally turn off, disable, deactivate, dislodge, dislocate, or otherwise render useless their camera unit, to the extent practicable under the circumstances. No officer shall take any action to intentionally remove, delete, obscure, block, or to otherwise render useless the probative value of video footage obtained, or that could have been obtained, from their body or dash camera unit, to the extent practicable under the circumstances. Whosoever commits an offense in violation of this provision or aids, abets, counsels, commands, induces, or procures its commission is punishable in their individual capacities without regard to qualified or absolute immunity, and shall be subject to a fine of not less than five thousand dollars ($5,000 USD) nor more than one hundred thousand dollars ($100,000 USD), or by imprisonment in jail not less than three (3) years nor more than ten (10) years, or by both such fine and imprisonment.
(2) If any police or peace officer violates the foregoing provision outlined in Section (1) that results in a homicide or significant disabling injury that imperils or impairs a major life activity (as defined by 42 U.S. Code 12102 et seq.) to a person accosted, apprehended, harassed, or detained by said officer, a rebuttable presumption hereby arises under the Federal Rules of Evidence that the officer is culpable under the law. A police officer shall be entitled to rebut such presumption through proof beyond a reasonable doubt. Notwithstanding Section (1) above, if a person that is accosted, apprehended, harassed, or detained by said officer, expires or sustains a significant disabling injury that imperils or impairs a major life activity (as defined by 42 U.S. Code 12102 et seq.) during or as a result of such police encounter or while in police custody, a rebuttable presumption hereby arises under the Federal Rules of Evidence that the officer is culpable under the law. Criminal and civil vicarious liability, both jointly and severally, shall attach to the officer and the police department she or he belongs to in the event that the officer involved is found guilty in a court of law of having violated this provision. Whosoever commits an offense in violation of this provision or aids, abets, counsels, commands, induces or procures its commission is punishable in their individual capacities without regard to qualified or absolute immunity, and shall be subject to a fine of not less than one hundred thousand dollars ($100,000 USD) nor more than one hundred million dollars ($100,000,000 USD), or by imprisonment in jail not less than ten years (10) years nor more than eighty (80) years, or by both such *62 fine and imprisonment. As expected, the officer shall not be entitled to any severance, pension, or any compensation for police service rendered on the force whatsoever from any third-party individual, partnership, corporation, association, or other legal entity, union, or group of individuals associated in fact, including police unions, insurance companies, donors, or “super” PAC entities organized under 501(c)(4) of the Internal Revenue Code et seq. Any such compensation remitted in violation hereunder, either directly or indirectly, shall be remanded forthwith to the victims or the estate of said victims of any unauthorized use of force prohibited under this Act. Furthermore, the police department shall be subject to the mandatory withholding of any federal financial assistance for no less than a period of five (5) years, unless waived or modified by the U.S. Attorney General for exigent circumstances. In order to ensure remedial correction of any violation of this provision during this period of federal financial assistance withholding, the U.S. Department of Justice shall supervise and retain court jurisdiction over the police department in order to implement and enforce any consent decree or resolution agreement entered into in connection herewith. Any consent decree or resolution that is subject to this provision shall hereby create or shall be construed to create an express or implied private right of action for the public to enforce in the event there is evidence of substantial non-compliance or underenforcement of said decree or resolution. Notwithstanding the foregoing, or in the absence of any consent decree or resolution, any violation of this provision shall independently create, or shall be construed to create an express or implied private cause of action enforceable in Article III courts.
(3) It shall be the duty of a police or peace officer to deescalate a confrontation or an encounter, whenever possible, to the extent practicable under the circumstances. It shall be unlawful for any police or peace officer to discharge his or her firearm or employ force designed to inflict serious bodily harm or death without first employing a department-issued taser to subdue a suspect, unless actual and imminent deadly force is threatened to the officer under the circumstances. The authorized use of taser force shall be reasonably calculated to preserve human life, for both the suspect and officer. In the absence of an actual and imminent threat of deadly force, and in the event an officer fails to employ the use of a taser for a reasonable period of time calculated to subdue the suspect before the use of deadly force, a rebuttable presumption hereby arises *63 under the Federal Rules of Evidence that the officer is culpable under the law, unless extenuating circumstances exist. A police officer shall be entitled to rebut such presumption through proof beyond a reasonable doubt. In the absence of deadly force or force that would inflict serious bodily harm that is either used or threatened against the officer under the circumstances, no officer shall employ use of excessive force, a taser or deadly weapon for mere failure to comply with an unlawful order, for a minor statutory traffic misdemeanor or in the absence of committing a crime, or a crime not punishable by no less than six-months imprisonment.
Criminal and civil vicarious liability, both jointly and severally, shall attach to the officer and the police department that she or he belongs to in the event that the officer involved is found guilty in a court of law of having violated this provision. Whosoever commits an offense in violation of this provision or aids, abets, counsels, commands, induces, or procures its commission is punishable in their individual capacities without regard to qualified or absolute immunity, and shall be subject to a fine of not less than one hundred thousand dollars ($100,000 USD) nor more than one hundred million dollars ($100,000,000 USD), or by imprisonment in jail not less than ten (10) years nor more than eighty (80) years, or by both such fine and imprisonment. As expected, that officer shall not be entitled to any severance, pension, or any compensation whatsoever for service rendered on the police force from any third-party individual, partnership, corporation, association, or other legal entity, union, or group of individuals associated in fact including police unions, insurance companies, donors, or “super” PAC entities organized under 501(c)(4) of the Internal Revenue Code et seq. Any such compensation remitted in violation hereunder, either directly or indirectly, shall be remanded forthwith to the victims or the estate of said victims of any unauthorized use of force prohibited under this provision. Furthermore, the police department shall be subject to the mandatory withholding of any federal financial assistance for no less than a period of five (5) years, unless waived or modified by the U.S. Attorney General for exigent circumstances. In order to ensure remedial correction of any violation of this provision during this period of federal financial assistance withholding, the U.S. Department of Justice shall supervise and retain court jurisdiction over the police department in order to implement and enforce any consent decree or resolution agreement entered into in connection herewith. Any consent decree or resolution that is subject to this provision shall hereby create or shall be construed to create an express or *64 implied private right of action for the public to enforce in the event there is evidence of substantial non-compliance or underenforcement of said decree or resolution. Notwithstanding the foregoing, or in the absence of any consent decree or resolution, any violation of this provision shall independently create, or shall be construed to create an express or implied private cause of action enforceable in Article III courts.
(4) If any police or peace officer is called to respond to an incident involving a confrontation or stand off with a person having a mental disease or defect, or other cognitive disability or impairment, and knows or has reason to know the person is suffering from such a condition, the responding officer must cease and desist all police action in forbearance, and in favor, of personnel or specialists trained in emergency mental-hygienecrisis management to respond, engage, and if possible, apprehend said person, unless there is irrefutable evidence, that the individual possesses a deadly weapon and presents an actual and imminent danger to their self or to third persons. In such a case, the use of deadly force is authorized. In the absence of any evidence the person possesses a deadly weapon or poses a deadly threat to his or her self or to others, the officer shall only employ the use of a department-issued taser to subdue the person in accordance with the above and no deadly force shall be authorized or deemed lawful under the circumstances. Criminal and civil vicarious liability, both jointly and severally, shall attach to the officer and the police department that she or he belongs to in the event that the officer involved is found guilty in a court of law of having violated this provision. Whosoever commits an offense in violation of this provision or aids, abets, counsels, commands, induces, or procures its commission is punishable in their individual capacities without regard to qualified or absolute immunity, and shall be subject to a fine of not less than one hundred thousand dollars ($100,000 USD) nor more than one hundred million dollars ($100,000,000 USD), or by imprisonment in jail not less than ten (10) years nor more than eighty (80) years, or by both such fine and imprisonment. As expected, that officer shall not be entitled to any severance, pension, or any compensation whatsoever from any third-party individual, partnership, corporation, association, or other legal entity, union or group of individuals associated in fact including police unions, insurance companies, donors, or “super” PAC entities organized under 501(c)(4) of the Internal Revenue Code et seq. Any such compensation remitted in violation hereunder, either directly or *65 indirectly, shall be remanded forthwith to the victims or the estate of said victims of any unauthorized use of force prohibited under this Act. Furthermore, the police department shall be subject to the mandatory withholding of any federal financial assistance for no less than a period of five (5) years, unless waived or modified by the U.S. Attorney General for exigent circumstances. In order to ensure remedial correction of any violation of this provision during this period of federal financial assistance withholding, the U.S. Department of Justice shall supervise and retain court jurisdiction over the police department in order to implement and enforce any consent decree or resolution agreement entered into in connection herewith. Any consent decree or resolution that is subject to this provision shall hereby create or shall be construed to create an express or implied private right of action for the public to enforce in the event there is evidence of substantial non-compliance or underenforcement of said decree or resolution. Notwithstanding the foregoing, or in the absence of any consent decree or resolution, any violation of this provision shall independently create, or shall be construed to create an express or implied private cause of action enforceable in Article III courts.
(5) Whosoever is in violation of any of the provisions set forth in this Act that acts as a conspiratorial enterprise shall be subject to liability under the Racketeer Influenced and Corrupt Organization Act (RICO) 18 U.S.C.A. 1962(c) (West 1984). As such, any persons operating through the conspiracy, including, but not limited to, conducting lawless activities, illegal searches and seizures, fabricating documents, paying off witnesses, suborning perjury, preparing false governmental reports, fabricating evidence against various individuals, tampering with crime scenes, testimony or evidence, concealing or obstructing body camera and or dash-camera footage or conducting other unlawful activities shall be deemed to act pursuant to an unlawful RICO enterprise.
(6) The fact that a police or peace officer is of the same race, ethnicity, national origin (or other protected category as provided under 42 U.S.C. 1981) as the victim of police misconduct including, but not limited to, the use of excessive force, shall have no probative value under the Federal Rules of Evidence and shall not be construed against any party alleging discrimination or retaliation on such basis or in favor of any parting contesting such acts in any matter adjudicated before any court, tribunal or administrative proceeding unless the context otherwise clearly *66 requires.
(7) All civilian-complaint review boards that are charged with receiving or processing civilian complaints against a police or peace officer must comprise an equal and proportionate number of public members elected from the local community as the number of officers represented on said board. All officers subject to Section 9 of this Act shall be disqualified to serve on such boards. All complaints lodged against the police and any evidence the police department has in its possession in connection therewith must promptly be made available to the public before any internal departmental review commences or concludes its investigation. In the event of any violation hereof, the police department shall be subject to the mandatory withholding of any federal financial assistance for no less than a period of five (5) years, unless waived or modified by the U.S. Attorney General for exigent circumstances. In order to ensure remedial correction of any violation of this provision during this period of federal financial assistance withholding, the U.S. Department of Justice shall supervise and retain court jurisdiction over the police department in order to implement and enforce any consent decree or resolution agreement entered into in connection herewith. Any consent decree or resolution that is subject to this provision shall hereby create or shall be construed to create an express or implied private right of action for the public to enforce in the event there is evidence of substantial non-compliance or underenforcement of said decree or resolution. Notwithstanding the foregoing, or in the absence of any consent decree or resolution, any violation of this provision shall independently create, or shall be construed to create an express or implied private cause of action enforceable in Article III courts.
(8) All video-camera footage, including those obtained from body cameras and police dash-board units, which document all police actions involving a homicide, racial profiling or an allegation of excessive use of force must be made available within five (5) business days of filing a police-incident report to be posted on a national online-video database for purposes of public inspection and for a period of no less than ten (10) years after which time it shall be archived and maintained at the U.S. Library of Congress. In the event of any violation hereof, the police department shall be subject to the mandatory withholding of any federal financial assistance for no less than a period of five (5) years, unless waived or modified by the U.S. Attorney General for exigent circumstances.
*67 In order to ensure remedial correction of any violation of this provision during this period of federal financial assistance withholding, the U.S. Department of Justice shall supervise and retain court jurisdiction over the police department in order to implement and enforce any consent decree or resolution agreement entered into in connection herewith. Any consent decree or resolution that is subject to this provision shall hereby create or shall be construed to create an express or implied private right of action for the public to enforce in the event there is evidence of substantial non-compliance or under-enforcement of said decree or resolution. Notwithstanding the foregoing, or in the absence of any consent decree or resolution, any violation of this provision shall independently create, or shall be construed to create an express or implied private cause of action enforceable in Article III courts.
(9) No department shall allow any police or peace officer that has been adjudicated or disciplined for excessive use of force, racial profiling, discrimination or harassment, unjustified searches and seizures, unjustified homicide or who has been the subject of repeated complaints or investigation of the same to serve in active duty where use of a firearm is permitted or required. As a matter of public safety and accountability, officers found to be involved in any of the foregoing matters shall have their names and photos included in a public online registry for public inspection and to ensure transparency and compliance with this provision. In the event of any violation hereof, the police department shall be subject to the mandatory withholding of any federal financial assistance for no less than a period of five (5) years, unless waived or modified by the U.S. Attorney General for exigent circumstances. In order to ensure remedial correction of any violation of this provision during this period of federal financial assistance withholding, the U.S. Department of Justice shall supervise and retain court jurisdiction over the police department in order to implement and enforce any consent decree or resolution agreement entered into in connection herewith. Any consent decree or resolution that is subject to this provision shall hereby create or shall be construed to create an express or implied private right of action for the public to enforce in the event there is evidence of substantial non-compliance or underenforcement of said decree or resolution. Notwithstanding the foregoing, or in the absence of any consent decree or resolution, any violation of this provision shall independently create, or shall be construed to create an express or implied private cause of *68 action enforceable in Article III courts.
(10) All police academies must ensure every graduating cadet and every police department must ensure every officer has received intensive instruction, training, or re-training on collaborative-community policing, appropriate use of force, conflict resolution, tactical training in the de-escalation of conflict, mental-health-crisis management, cultural competency, racial-sensitivity training, racial implicit bias as well as cognitive and policing methods to overcome it. As with all professionals, police and peace officers shall be subject to a credential-licensing and continuing-education-credit requirement which shall be every two years in order to renew their license to continue to serve as a police or peace officer. The provisions hereunder shall also apply to those serving as school-resource officers (SROs) in public district, magnet and charter schools and those private schools receiving federal financial assistance. At no time shall a juvenile offender or minor be subject to solitary confinement which shall constitute cruel and unusual punishment in prohibition of the Eighth Amendment to the United States Constitution. Due to the inherent unreliability and repeated occurrence of false confessions based upon implying false evidence exists, no officer shall use the tactics of presenting or implying false evidence exists to obtain confessions from minors during the interrogation process. In the event of any violation hereof, the police department shall be subject to the mandatory withholding of any federal financial assistance for no less than a period of five (5) years, unless waived or modified by the U.S. Attorney General for exigent circumstances. In order to ensure remedial correction of any violation of this provision during this period of federal financial assistance withholding, the U.S. Department of Justice shall supervise and retain court jurisdiction over the police department in order to implement and enforce any consent decree or resolution agreement entered into in connection herewith. Any consent decree or resolution that is subject to this provision shall hereby create or shall be construed to create an express or implied private right of action for the public to enforce in the event there is evidence of substantial non-compliance or underenforcement of said decree or resolution. Notwithstanding the foregoing, or in the absence of any consent decree or resolution, any violation of this provision shall independently create, or shall be construed to create an express or implied private cause of action enforceable in Article III courts.
*69 (11) It shall be a police or peace officer's continuing ethical duty in order to maintain their policing-license credential (as outlined in Sec 10 hereof) to report any police misconduct she or he witnesses, or knows or has reason to know occurred to the local civilian-review board and internal affairs promptly, accurately, and completely. Whosoever commits an offense in violation of this provision or aids, abets, counsels, commands, induces, or procures its commission is punishable in their individual capacities without regard to qualified or absolute immunity, and shall be subject to a fine of not less than one hundred thousand dollars ($100,000 USD) nor more than one million dollars ($1,000,000 USD), or by imprisonment in jail not less than five (5) years nor more than ten (10) years, or by both such fine and imprisonment.
(12) It shall be the attorney's continuing ethical duty, pursuant to the disciplinary rules of professional responsibility, whether acting as prosecutor or counsel for defendant, to ensure a jury or a grand jury empaneled is racially balanced and diverse to ensure a fair and impartial deliberation by one's peers. Peremptory strikes for whatever reason proffered that substantially imbalance, reduce or eliminate all racial diversity or representation from the jury when the defendant belongs to a racial-minority group shall be construed as per se evidence of impermissible racial discrimination in violation of the Fourteenth Amendment's Equal Protection Clause as well as the Procedural and Substantive Due Process rights secured by the Fifth and Fourteenth Amendments. Prosecutors shall ensure and pledge not to withhold exculpatory evidence from defense counsel. The Department of Justice shall conduct criminal prosecutions that are fair in their process and outcome to ensure that testimony about forensic evidence presented in court is scientifically valid in order to ensure, not only that guilty individuals are convicted, but that innocent individuals are not. In accordance with this mandate, the Department of Justice shall adopt forthwith the recommendations of the report of the Executive Office of the President President's Council of Advisors on Science and Technology entitled “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods” (incorporated herein by reference). To ensure that those incarcerated have a robust right to challenge through the writ of federal habeas corpus any gross constitutional violations in state convictions, the 1996 Antiterrorism and Effective Death Penalty Act is hereby amended to grant Article III courts authority to *70 hear challenges to state convictions which represent a manifest injustice under the Constitution. Whosoever commits an offense in violation of this provision or aids, abets, counsels, commands, induces, or procures its commission is punishable in their individual capacities without regard to qualified or absolute immunity, and shall be subject to a fine of not less than one hundred thousand dollars ($100,000 USD) nor more than one million dollars ($1,000,000 USD), or by imprisonment in jail not less than five (5) years nor more than ten (10) years, or by both such fine and imprisonment.
(13) All departments shall have the affirmative duty and obligation to reduce the heightened militarization of police actions as well as the police equipment and apparatus of military grade. This provision shall codify into law Executive Order 13688, issued on January 16, 2015, by President Barack Obama entitled “Federal Support for Local Law Enforcement Equipment Acquisition” (EO), to identify actions that can improve Federal support for the appropriate use, acquisition, and transfer of controlled equipment by State, local, and Tribal law-enforcement agencies (LEAs) to ensure the appropriate use of police equipment.
(14) The use of all stop-and-frisk tactics, racial profiling, or other methods of policing which lead to the disproportionate harassment or incarceration of people of color shall be affirmed as unlawful and terminated immediately forthwith. In the event of any failure by government or any political subdivision thereof to comply with this provision, the state and police department of said jurisdiction shall be subject to the mandatory withholding of any federal financial assistance for no less than a period of five (5) years, unless waived or modified by the U.S. Attorney General for exigent circumstances. In order to ensure remedial correction of any violation of this provision during this period of federal financial assistance withholding, the U.S. Department of Justice shall supervise and retain court jurisdiction over the police department in order to implement and enforce any consent decree or resolution agreement entered into in connection herewith. Any consent decree or resolution that is subject to this provision shall hereby create or shall be construed to create an express or implied private right of action for the public to enforce in the event there is evidence of substantial non-compliance or underenforcement of said decree or resolution. Notwithstanding the foregoing, or in the absence of any consent decree or resolution, any violation of this provision shall independently create, or shall *71 be construed to create an express or implied private cause of action enforceable in Article III courts.
(15) The U.S. Department of Homeland Security (which houses approximately 62% of all federal prisoners) shall incorporate the policies recently promulgated by the U.S. Justice Department (incorporated herein by reference) that henceforth terminate the governmental relationship with all for-profit private prison-management companies. The federal government, all states, and the political subdivisions thereof shall take additional steps to effectively and promptly terminate its relationship with said companies in the provision of supervisory services (such as probation, pre-trial release) as well as in the production of goods or commodities produced by inmate labor.
(16) All courts, including juvenile-justice courts, as well as all correctional institutions shall adopt and implement strategies that effectively promote rehabilitation rather than retributive punishment among youth and inmates. Further, they shall ensure, through monitoring and continual assessment, that such strategies have made demonstrable progress on measurable annual benchmarks to ensure the same. Alternative sentencing and inmate counseling, training, and education shall be reasonably calculated to produce a marketable skills and a pathway to successful emotional, social and economic reintegration in mainstream society with adequate post-release support. In the event of noncompliance with any provision hereof, the correctional institution shall be subject to the mandatory withholding of any federal financial assistance for no less than a period of five (5) years, unless waived or modified by the U.S. Attorney General for exigent circumstances. In order to ensure remedial correction of any violation of this provision during this period of federal financial assistance withholding, the U.S. Department of Justice shall supervise and retain court jurisdiction over said institution in order to implement and enforce any consent decree or resolution agreement entered into in connection herewith. Any consent decree or resolution that is subject to this provision shall hereby create or shall be construed to create an express or implied private right of action for the public to enforce in the event there is evidence of substantial noncompliance or under-enforcement of said decree or resolution. Notwithstanding the foregoing, or in the absence of any consent decree or resolution, any violation of this provision shall independently create, or shall be construed to create an express or implied private cause of action enforceable in Article III courts.
*72 (17) Except as otherwise provided herein, no police or peace officer or agent acting either directly or indirectly on behalf of any police department or law-enforcement agency shall make any statement to the public, release prejudicial information or engage in speculation or supposition about the character of any victim of police misconduct that will prejudice, or tends to create prejudice, in the minds of prospective jurors or take any steps that shall prejudicially poison any potential-juror pool before the case is adjudicated in a competent court of law. Whosoever commits an offense in violation of this provision or aids, abets, counsels, commands, induces, or procures its commission is punishable in their individual capacities without regard to qualified or absolute immunity, and shall be subject to a fine of not less than one hundred thousand dollars ($100,000 USD) nor more than one million dollars ($1,000,000 USD), or by imprisonment in jail not less than five (5) years nor more than ten (10) years, or by both such fine and imprisonment.
(18) All evidence mandated hereunder to be obtained, collected and, or, stored under this Act shall be timely presented in full to the Committee on The Elimination of Racial Discrimination as the body of independent experts that monitors implementation of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) Treaty to which the United States is a signatory.
(19) One-half (1/2) of any fine(s) imposed upon the federal government, a state or any political subdivision thereof as a result of a violation of this Act shall be directed to the local public defender offices (and Innocence projects programs where DNA evidence is the basis of the conviction) in the county that gave rise to the violation. Such funds shall be used exclusively in cases on behalf of the defendant, where the defendant alleges, in good faith and as supported by credible and competent evidence, that she or he is a victim of police or prosecutorial misconduct or any act prohibited under this Act. The receiving office shall give a true, accurate and complete accounting of the use of such funds for public inspection and shall be subject to periodic audit by the state comptroller or Attorney General's office, whichever the case may be.
(20) All police departments shall proactively and regularly engage in the collaborative planning of community-policing initiatives and coordinate joint efforts with local community leaders to ensure the most effective, safe and respectful policing *73 of all communities. The police departments shall ensure continual community outreach that is designed to build and restore well-founded trust and cooperation between the police and the local community. Further, the police department and local community shall ensure through monitoring and continual assessment that such cooperative strategies have made demonstrable progress on measurable annual benchmarks to ensure the same. It shall be unlawful under the rules and regulations promulgated by the Federal Communications Commission and in violation of the U.S. Constitution for states and police departments to utilize, whether overtly or covertly, social-media-surveillance software, cell-phone “stingray” devices that capture private cell-phone calls, other secretive-surveillance tools, tactics, or measures to target, track, surveil, profile, or harass persons lawfully exercising their First Amendment right to video record, advocate, petition, or protest against the improper or excessive use of force exercised by some police officers. It is understood such surveillance measures and tactics undermine the spirit and intent of community trust and police accountability that is the objective of this provision and Act. Whosoever commits an offense in violation of this provision or aids, abets, counsels, commands, induces or procures its commission is punishable in their individual capacities without regard to qualified or absolute immunity, and shall be subject to a fine of not less than one hundred thousand dollars ($100,000 USD) nor more than one million dollars ($1,000,000 USD), or by imprisonment in jail not less than five (5) years nor more than ten (10) years, or by both such fine and imprisonment. In the event of repeated and continued noncompliance with any provision hereof, the state and police department shall also be subject to the mandatory withholding of any federal financial assistance for no less than a period of five (5) years, unless waived or modified by the U.S. Attorney General for exigent circumstances. In order to ensure remedial correction of any violation of this provision during this period of federal financial assistance withholding, the U.S. Department of Justice shall supervise and retain court jurisdiction over said institution in order to implement and enforce any consent decree or resolution agreement entered into in connection herewith. Any consent decree or resolution that is subject to this provision shall hereby create or shall be construed to create an express or implied private right of action for the public to enforce in the event there is evidence of substantial noncompliance or under-enforcement of said decree or resolution. Notwithstanding the foregoing, or in *74 the absence of any consent decree or resolution, any violation of this provision shall independently create, or shall be construed to create an express or implied private cause of action enforceable in Article III courts.
Professor of Law, Thomas Jefferson Law School; Harlan Fiske Stone Scholar, J.D. Columbia University School of Law; Scholars Fellow, Teachers College, Columbia University;
