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June 25, 2009
Americans were horrified by the brutal murders of James Byrd in Jasper, Texas and Matthew Shepard in Laramie, Wyoming a decade ago.1 More recently, the murders of Angie Zapata and Stephen Johns have shocked and saddened us all.2 There ought to be a law, some people have said, preferably a federal one.
Of course, there is a law. Murder is a serious crime everywhere regardless of its motive and it has been from the advent of our civilization. Indeed, all but a few states have additional special hate crimes statutes. To my knowledge, no one is claiming that state or D.C. authorities have been neglecting their duty to enforce the law.3 Matthew Shepard's tormentors are now serving life sentences; James Byrd's are on death row awaiting execution.4 A Colorado jury recently convicted Zapata's killer of murder, and the same will almost certainly happen to James von Brunn if he lives long enough to be prosecuted and is found competent to stand trial.
Of course, miscarriages of justice occasionally occur. The American system of criminal justice, which requires proof of guilt beyond a reasonable doubt, errs on the side of failure to convict the guilty. But I know of no reason to suspect that it errs in that direction more often in the case of crimes that are inspired by bias. To the contrary, I would suspect that given the high profile that serious bias crimes tend to have, it errs less often.
Unfortunately, tragedies like these bias-inspired murders quickly became an opportunity for political grandstanding. False and reckless claims that hate crimes are "epidemic" and "on the rise" are all too easily made.5 The proposed federal hate crimes legislation, however, which is being touted as a response to these murders, shouldn't have been treated as a mere photo opportunity. It's real legislation with real world consequences-and not all of them are good. A close examination of its consequences, especially its consequences for federalism and double jeopardy protections, is therefore in order.
Hate Crimes Statutes Generally: All hate crimes statutes, even those that have been adopted at the state level, raise significant issues:
* Why should James Byrd's or Matthew Shepard's killers be treated differently from Jeffrey Dahmer or Ted Kaczynski? Hate crimes are surely horrible, but there are other crimes that are equally, if not more, horrible.
* What happens if hate crimes statutes aren't enforced evenhandedly? Some crime statistics show that an African American is more likely to commit a racially-inspired murder of a white than the other way around. Should all be punished as hate crimes? Or just those that fit the white supremacist James von Brunn stereotype?6
*What is gained by defining crimes in such a way that prosecutors must prove that the defendant's actions were motivated by racial or sexual animus? Is it enough to justify what is lost? When prosecutors are busy marshalling the extra evidence necessary for a hate crime prosecution, doesn't something have to give? Shouldn't our prosecutorial resources be deployed more efficiently?
* Will hate crimes statutes really make women and minorities feel that the law takes their safety seriously? Or might it have just the opposite effect? Sooner or later, a high profile crime will occur that some citizens strongly believe ought to be prosecuted as a hate crime. Rightly or wrongly, the prosecution will decline to prosecute it as such or the jury will convict only on the underlying crime and not on the hate crime charge. As a result, those citizens will wind up feeling cheated-when they would have felt completely vindicated had no hate crime statute ever existed.
Current Federal Law: Under current law, adopted in 1969, federal authorities may bring a prosecution for a crime because it was motivated by the victim's "race, color, religion or national origin" only to protect the victim's right to engage in certain "federally protected activities." For example, if the defendant prevented a black woman from enrolling in a public school or from travelling by common carrier because she is black, he has committed a federal offense.7 This statutory provision does not purport to be and is not a hate crimes statute. It was enacted to enforce the rights recognized by the courts or enacted by Congress during the Civil Rights Era. This was, of course, a time when there was genuine reason to fear that state authorities might not enforce the law.
The New Proposal: S. 909, entitled the "Matthew Shepard Hate Crimes Prevention Act of 2009" would remove the requirement that the victim be engaged in a federally-protected activity and would expand the list of protected categories to include actual or perceived "gender, sexual orientation, gender identity or disability" in addition to the "race, color, religion and national origin" already covered in the federal criminal code. Any crime fitting that description in which the defendant "willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon or an explosive or incendiary device, attempts to cause bodily injury to any person" may be fined and imprisoned for up to 10 ten years.8 Ifdeath results or "the offense includes kidnaping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill," the defendant may be sentenced to life in prison.9
*Rapists are seldom indifferent to the gender of their victims. They are always chosen "because of" their gender.
*A thief might well steal only from the disabled because, in general, they are less able to defend themselves. Literally, they're chosen "because of" their disability.
* Suppose a burglar is surprised when the husband and wife who reside in the home return earlier than expected. The burglar shoots the husband and kills him, but finding himself unable to shoot a woman, turns and runs. Again, literally, the husband was killed "because of " his gender.
This wasn't just sloppy draftsmanship. The language was chosen deliberately. Officials understandably wanted something susceptible to broad construction, in part because it makes prosecutions easier.12 As a staff member of the Senate Committee on the Judiciary back in 1998, I had several conversations with DOJ representatives. They repeatedly refused to disclaim the view that all rape will be covered, and resisted efforts to correct any ambiguity by re-drafting the language. They wanted a bill with broad sweep. The last thing they wanted was to limit the scope of the statute's reach by requiring that the defendant be motivated by ill will toward the victim's group.13
Among other things, this creates an efficiency problem. State hate crimes laws give prosecutors an extra weapon, to be used or not used as they see fit. Federal laws, on the other hand, bring in a new cast of characters to prosecute the same crimes that are already being handled by state authorities. While efforts can be made to minimize the tension, turf battles are inevitable as ambitious prosecutors jockey for position over big cases.14 The result is that resources are diverted away from frontline crime fighting.15
What justification exists for this redundancy? Back in 1998, Administration officials argued that it was needed, because state procedures often make it difficult to obtain convictions. They cited a Texas case involving an attack on several black men by three white hoodlums. Texas law required the three defendants to be tried separately. By prosecuting them under federal law, however, they could have been tried together. As a result, admissions made by one could be introduced into evidence at the trial of all three without falling foul of the hearsay rule.
One might expect that argument to send up red flags among civil libertarian groups like the ACLU. But political correctness seems to have caused them to abandon their traditional role as advocates for the accused.16 Still, the argument cries out: Isn't this just an end-run around state procedures designed to ensure a fair trial? The citizens of Texas evidently believe that separate trials are necessary to ensure innocent men and women are not punished. No one is claiming that Texas applies this rule only when the victim is black or gay. And surely no one is arguing that Texans are soft on crime. Why interfere with their judgment?
The Double Jeopardy Issue in Particular: The double jeopardy issue stands out among the problems created by the proposed statute (as well as other proposed expansions of the federal criminal code).17 It is also the issue that the U.S. Commission on Civil Rights featured most prominently in its letter to the Senate leadership opposing S. 909.
School children are taught that the Double Jeopardy Clause of the Constitution guarantees that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb."18 They are seldom taught, however, about the dual sovereignty rule, which holds that the Double Jeopardy Clause does not apply when separate sovereign governments prosecute the same defendant. As the Supreme Court put it in United States v. Lanza, a defendant who violates the laws of two sovereigns has "committed two different offenses by the same act, and [therefore] a conviction by a court [of one sovereign] of the offense that [sovereign] is not a conviction of the different offense against the [other sovereign] and so is not double jeopardy."19 A state cannot oust the federal government from jurisdiction by prosecuting first; similarly the federal government cannot oust the state. Indeed, New Jersey cannot oust New York from jurisdiction over a crime over which they both have authority, so in theory at least a defendant may face as many of 51 prosecutions for the same incident.20
The doctrine is founded upon considerations that are real and understandable. If a state has the power to oust the federal government from jurisdiction by beating it to the "prosecutorial punch," it can, in effect, veto the implementation of federal policy (and vice versa). In 1922, the Court in Lanza put it in terms of Prohibition, which was then hotly controversial. Allowing a state to "punish the manufacture, transportation and sale of intoxicating liquor by small or nominal fines," it wrote, will lead to "a race of offenders to the courts of that State to plead guilty and secure immunity from federal prosecution."21
In the past, opportunities for such double prosecutions seldom arose, since so few federal crimes were on the books. But with the explosive growth of the federal criminal code in the last few decades, this is no longer true.23 The nation is facing the real possibility that double prosecutions could become routinely available to federal prosecutors who wish to employ them.
S. 909 would add substantially to the problem in two ways.24 By declining to require that the defendant be motivated by hatred or even malice in order to establish a "hate crime," it would vastly expand the reach of the federal criminal code. A creative prosecutor will be able to charge defendants in a very broad range of cases-cases that ordinary users of the English language would never term "hate crimes." And it makes the most controversial cases-those that were arguably motivated by race, color, religion, national origin, gender, sexual orientation, etc.-front and center on the federal stage.
It should come as no surprise that re-prosecutions are common in cases that are emotionally-charged-cases like the Rodney King prosecutions and the Crown Heights murders. As Judge Guido Calabresi put it:
"Among the important examples of successive federal-state prosecution are (1) the federal prosecution of the Los Angeles police officers accused of using excessive force on motorist Rodney King after their acquittal on state charges, (2) the federal prosecution of an African-American youth accused of murdering a Hasidic Jew in the Crown Heights section of Brooklyn, New York, after his acquittal on state charges, and (3) the Florida state prosecution-seeking the death penalty-of the anti-abortion zealot who had been convicted and sentenced to life imprisonment in federal court for killing an abortion doctor."25
While Judge Calabresi expressed no opinion about the merits of these cases, he noted that "there can be no doubt that all of these cases involved re-prosecutions in emotionally and politically charged contexts" and that it was "to avoid political pressures for the re-prosecution that the Double Jeopardy Clause was adopted." It "is especially troublesome," he stated, "that the dual sovereignty doctrine keeps the Double Jeopardy Clause from protecting defendants whose punishment, after an acquittal or an allegedly inadequate sentence, is the object of public attention and political concern."26
Hate crimes are perhaps the most emotionally-charged criminal issue in the nation today. According to CCN's Kyra Phillips, "Thousands of people converg[ed] on the U.S. Justice Department" on November 16, 2007 "demanding more federal prosecutions of hate crimes."27 Can anyone seriously argue that political pressure of this sort will have no effect on the judgment of federal officials? Indeed, even before S. 909 has passed, advocacy groups have been calling for its use to overturn particular state court acquittals.28
Proponents of the bill argue that the actual risk of abuse at the Department of Justice is quite minimal. DOJ has its own internal guidelines, know as the "Petite Policy," under which it limits double prosecutions to cases that meet certain standards. Unfortunately, the standards are vague. For example, they authorize double prosecutions whenever there are "substantial federal interests demonstrably unvindicated" by successful state procedures. Under ordinary circumstances those federal interests are undefined and undefinable. In this case, however, the potential for abuse is the result of the law's clarity. S. 909 specifically refers to "the federal interest in eradicating bias-motivated violence." That means essentially that if federal prosecutors want to bring a hate crimes prosecution after a state declines to prosecute, a state court acquits or a state court fails to sentence the defendant as harshly as federal prosecutors think is appropriate, the Petite Policy will never stand in their way. Moreover, courts have consistently held that a criminal defendant cannot invoke the Petite policy as a bar to federal prosecution.29
Conclusion: No one can deny the horror of violent crimes inspired by hatred of any kind. This is something upon which all decent people can agree. But it is precisely in those situations-where all decent people agree on the need to "do something"-that mistakes are made. Passage of the vaguely-worded prohibitions in S. 909 would be a giant step toward the federalization of all crime. Given the many civil liberties issues that would raise, including the routine potential of double jeopardy prosecutions, this is a step that members of the Senate should think twice before they take.
1 James Brooke, Gay Man Dies from Attack, Fanning Outrage and Debate, New York Times (October 13, 1998); Carol Marie Cropper, Black Man Fatally Dragged in Possible Racial Killing, New York Times (June 8, 1998).
"[I]n many, many instances, the State and local authorities handle these cases. Their statutes are adequate. And they handle them in a very appropriate manner. What we need to do is to have the authority so that we can work with State and local authorities. And if they cannot handle it, if they do not have a statute that is applicable or that provides an appropriate sentence, then we will have the authority to proceed to protect what we believe to be clearly a Federal interest."
See U. S. Department of Justice, Transcript of Press Conference: The Honorable Janet Reno, Attorney General (January 8, 1998), available at http://www.usdoj.gov/archive/ag/speeches/1998/jan0898.htm.
Similarly, then-Deputy Attorney General Eric Holder testified at a Senate hearing, "I think it is fairly rare where we have hate crimes where local prosecutors, for inappropriate reasons decide not to pursue them." Combating Hate Crimes: Promoting a Responsive and Responsible Role for the Federal Government: Hearing on S. 622 Before the Senate Comm. on the Judiciary, 106th Cong., 16 (1999). After an earlier hearing, in response to written questions that pressed him to identify cases in which state authorities, for whatever reason, had failed to vigorously prosecute, Holder referred to three cases in which state authorities had failed to bring criminal charges. See The Hate Crimes Prevention Act of 1998: Hearing on S. 1529 Before the Senate Comm. on the Judiciary, 105th Cong. 65 (1998)(statement of Eric H. Holder, Jr.). In all three federal prosecutions, however, the defendants were acquitted. See id. See also Combating Hate Crimes: Promoting a Responsive and Responsible Role for the Federal Government: Hearing on S. 622 Before the Senate Comm. on the Judiciary, 106th Cong., 44 (1999)(statement of Burt Neuborne)(conceding that "it would ... be grossly unfair to local law enforcement officials to suggest that widespread reluctance exists in today's America to prosecute hate crimes"). See Christopher Chorba, The Danger of Federalizing Hate Crimes: Congressional Misconceptions and the Unintended Consequences of the Hate Crimes Prevention Act, 87 Va. L. Rev. 319, 346-53 (2001)(cataloging these arguments).
"Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with-
(2) any person because of his race, color, religion, or national origin and because he is or has been-
(A) enrolling in or attending any public school or public college;
(B) participating in or enjoying any benefit, service, privilege, program, facility or activity provided or administered by any State or subdivision thereof;
(C) applying for or enjoying employment, or any perquisite thereof, by any private employer or any agency of any State or subdivision thereof, or joining or using the services or advantages of any labor organization, hiring hall, or employment agency;
(D) serving, or attending upon any court of any State in connection with possible service, as a grand or petit juror;
(E) travelling in or using any facility of interstate commerce, or using any vehicle, terminal, or facility of any common carrier by motor, rail, water, or air;
(F) enjoying the goods, services, facilities, privileges, advantages, or accommodations of any inn, hotel, motel, or other establishment which provides lodging to transient guests, or of any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility which serves the public and which is principally engaged in selling food or beverages for consumption on the premises, or of any gasoline station, or of any motion picture house, theater, concert hall, sports arena, stadium, or any other place of exhibition or entertainment which serves the public, or of any other establishment which serves the public and
(ii) which holds itself out as serving patrons of such establishments ...
shall be fined under this title, or imprisoned not more than one year, or both ....
"Section 249. Hate crimes acts
(a) In General-
(1) OFFENSES INVOLVING ACTUAL OR PERCEIVED RACE, COLOR, RELIGION, OR NATIONAL ORIGIN- Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person--
(A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and
(B) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if--
(i) death results from the offense; or
(ii) the offense includes kidnaping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.
(2) OFFENSES INVOLVING ACTUAL OR PERCEIVED RELIGION, NATIONAL ORIGIN, GENDER, SEXUAL ORIENTATION, GENDER IDENTITY, OR DISABILITY-
(A) IN GENERAL- Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B) ..., willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person--
(i) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and
(ii) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if--
(I) death results from the offense; or
(II) the offense includes kidnaping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.
(i) the conduct described in subparagraph (A) occurs during the course of, or as the result of, the travel of the defendant or the victim--
(II) using a channel, facility, or instrumentality of interstate or foreign commerce;
(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct described in subparagraph (A);
(iii) in connection with the conduct described in subparagraph (A), the defendant employs a firearm, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or
(iv) the conduct described in subparagraph (A)--
(I) interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or
(II) otherwise affects interstate or foreign commerce.