The Federalist Society

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Hate Crimes Legislation
August 17, 2009

The Local Law Enforcement Hate Crimes Prevention Act of 2009 (H.R. 1913) has been pending in Congress in roughly the same form since the 1990s. The bill passed the House on April 29, 2009 with a vote of 249 to 175. The Senate voted 63 to 28 to attach the Matthew Shepard Hate Crimes Prevention Act to the annual defense-appropriations bill. In this installment of Originally Speaking, Gail Heriot, Brian Moulton, and Lara Schwartz discuss the merits of the legislation.

Relevant Materials:

Text of the Local Law Enforcement Hate Crimes Prevention Act of 2009 (H.R. 1913)

Summary of the Local Law Enforcement Hate Crimes Prevention Act of 2009 (H.R. 1913)

Text of the Matthew Shepard Hate Crimes Prevention Act (S. 909)

Summary of the Matthew Shepard Hate Crimes Prevention Act

Gail Heriot

Professor Gail HeriotBio

The House passed it. And now the Senate has passed an only slightly different version–by attaching it to the Defense Authorization bill. Since President Obama has said he would sign it, it will take miracle to prevent this ill-considered piece of legislation from becoming law. But let me make one last effort before the Matthew Shepard Hate Crimes Prevention Act (as the proposal is called in the Senate) becomes forever-enshrined in the federal code.

I'll start with an argument that is unique to the federal hate crimes bill: The double jeopardy issue.

All decent Americans were revolted by the murders of James Byrd in Texas and Matthew Shepard in Wyoming a decade ago. There ought to be a law, they thought, preferably a federal one. Of course, there is a law. Murder is illegal everywhere. Indeed, all but a tiny number of states have hate-crimes statutes too, so the conduct is often doubly prohibited. No one claims that states are not enforcing the law; to the contrary, state prosecutors swiftly obtained life sentences for Matthew Shepard's killers. James Byrd's are on death row. The proposal is a solution in search of a problem.

Its most significant effect will be to allow federal authorities to re-prosecute defendants who have already been acquitted in state courts. This is hardly cause to support the bill.

Americans learn as schoolchildren that the Constitution's double-jeopardy clause forbids the government from prosecuting them twice for the same offense. What they don't learn is the dual-sovereignty exception – that double-jeopardy protections do not apply to separate sovereign governments. An acquittal in state court therefore does not preclude a federal prosecution, and vice versa.

While there may be good reasons for the dual-sovereignty exception, it has always been troubling. Until fairly recently, however, the opportunities for mischief have been limited, since there were so few federal offenses on the books.

But with the explosive growth of the federal criminal code in the last few decades, this is no longer true. Now we are facing the very real possibility that federal prosecutors will get a second bite at the apple whenever they don't like the outcome of a state case, or they sense an opportunity to make headlines.

There is no better place to draw the line than with this politically charged proposal. Despite its title, it is not really a hate-crimes bill at all. It does not require that a defendant be inspired by hatred – only that he acted "because of" someone's actual or perceived race, religion, national origin, gender, sexual orientation, gender identity, or disability.

But consider: Rapists are seldom indifferent to the gender of their victims. A thief might target the disabled because they are less able to defend themselves. So these victims are chosen "because of" their gender or disability.

This is not just sloppy draftsmanship. DOJ officials wanted something susceptible to broad construction, and they have strenuously resisted efforts to tighten the bill's language. They apparently like the proposal's broad sweep.

Lara Schwartz

Lara SchwartzBio

There has been a federal hate crimes law on the books for four decades, and this double jeopardy issue has never materialized -- nor have the opponents of the pending federal hate crimes bill called for its repeal.

Far from illustrating Ms. Heriot's point, the Byrd and Shepard murders demonstrate the need for this pending legislation. In the Byrd case, Texas authorities sought, and received, assistance from the DOJ, then under the leadership of Attorney General Janet Reno. Because the crime was motivated by race and took place on a road, the DOJ was able to determine that it had jurisdiction to assist the local authorities who requested this assistance. In contrast, the Laramie police were unable to secure federal help because of the nature of the crime, and by the time justice was done, the police had to furlough several law enforcement officers. The hate crimes bill that Ms. Heriot opposes would provide local law enforcement with the federal assistance that they need and that many have requested, which is why state and local law enforcement groups have put their official support behind the bill.

But the Shepard and Byrd murders are far from the only hate crimes that this country has seen. They caught the nation's attention, but according to the FBI, a hate crime is committed every day. Here at HRC, we have met with grieving families who have seen local authorities turn their backs on the victims, or seen the perpetrators walk away with token sentences. There are voiceless victims across this nation waiting for relief.

Gail Heriot

Professor Gail HeriotBio

Sadly, there have been many cases in which federal authorities have re-prosecuted after a jury acquittal or other disposition–often under strong public pressure. Sometimes, of course, the defendant was guilty, causing some to view re-prosecution as a good thing: *The defendant finally got his comeuppance.* But in those cases, we should stop, take a deep breath and remember why we have a Bill of Rights. Our criminal justice system is designed to lean over backwards to make sure that innocent persons are not punished. The only way to do that is to allow some who are guilty to escape punishment. The routine availability of double prosecutions made possible by the combination of a bloated federal criminal code and the dual sovereignty rule is simply inconsistent with that tradition. Since we probably cannot get rid of the dual sovereignty rule, we need to oppose thoughtless expansion of federal criminal jurisdiction into areas that are already adequately covered by state authorities. That expansion makes double prosecution entirely too easy.

High-profile, controversial examples of re-prosecution include the Los Angeles police officers accused of using excessive force against Rodney King and the African American youth accused of murdering a Hasidic Jew in the Crown Heights section of Brooklyn. The case of Vincent Chin is another. MALDEF's President and General Counsel is currently calling for the federal authorities to re-prosecute a case in Pennsylvania in which the two teenagers were convicted only of relatively minor crimes in the death of a Hispanic man.

These are just some of the famous cases. There are many more not-so-famous ones. In United States v. All Assets of G.P.S. Automotive Corp., 66 F.3d 483, 499 (2d Cir. 1995), Judge Calabresi 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."

The current proposal would increase the opportunity to such mischief exponentially, given the amazing breadth of its prohibitions (noted briefly in my previous post). Indeed, some of those who argue for the bill's passage do so precisely because it will allow for such re-prosecutions.

Ms. Schwartz argues that we've already got a federal hate crimes law, so apparently I should not mind vastly expanding it.  Under the 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. For the record, this statutory provision does not purport to be and is not a hate crimes statute. Proof of hatred is not required; proof of a federally-protected activity is. It was enacted to enforce the rights recognized by the courts or enacted by Congress during the Civil Rights Era. What's important is that (1) this was a time when there was genuine reason to fear that state authorities might not enforce the law; (2) this statute was narrowly drafted to address that problem. That is not the case with the current proposal.

I've gone on too long, so the rest of my arguments will have to wait for another post. But I do want to respond to the suggestion that the concern by the proposal's opponents over double jeopardy may be opportunistic. Concern over the bloated federal code and the more than 3000 crimes now contained therein is not new or opportunistic. While the fault for unnecessarily expanding federal criminal jurisdiction must be shared by politicians on both the left and the right, conservative lawyers have taken a special interest in pointing out and trying to correct the problem. See Edwin Meese, III, Big Brother on the Beat: The Expanding Federalization of Crime, 1 Tex. Rev. L. & Pol. 1, 3 (1997).  As for repeal of redundant and unnecessary provisions, you bet I'm for it. If you'll lend me a paring knife, I would be more than happy to get started. I can't imagine a better place to start than with this grandstanding proposal by Congress.

Lara Schwartz

Lara SchwartzBio

Professor Heriot appears to be at least tolerant of expansions of federal criminal jurisdiction that are not "thoughtless" and address a real deficiency in the ability of state authorities to prosecute crimes. As I am ill-equipped to address the propriety of the host of other federal criminal statutes -- from provisions on dog-fighting and junk email to "deadbeat Dads" and church arson -- I'll speak instead to the need, limits and purpose of the current hate crime proposal.

First, as with the existing statute creating federal jurisdiction for certain bias-motivated offenses, the Matthew Shepard Act will lead to very few direct federal prosecutions. The Justice Department has brought fewer than 10 cases a year under the 1969 law and the proponents of the current bill, including DOJ, have emphasized that the vast majority of hate crime prosecutions will continue to be brought by state authorities. The Act requires the Attorney General to certify every prosecution, attesting to evidence of bias motivation and that the state authorities' lack of jurisdiction, desire for federal intervention, or a failure to address the federal government's strong interest in combating bias-motivated crime.

Undoubtedly there will be instances where the Justice Department will step in, but contrary to Professor Heriot's assertion in her first posting, the most significant effect will be to give state and local law enforcement agencies more tools to fully and fairly investigate and prosecute hate crimes. Federal jurisdiction opens the door to federal resources. Indeed, the murderers of Matthew Shepard and James Byrd, Jr. were brought to justice. But, as I noted in my last posting, the small-town law enforcement agencies in Albany County, Wyoming and Jasper, Texas had very different experiences with these complex cases. Federal resources -- from FBI investigators on the scene and analysis at the Bureau's forensics laboratory to technical assistance, or outright prosecution, by the local U.S. Attorney's office -- can and have made a critical difference. Local law enforcement should not be denied resources, or discouraged from conducting an investigation by cost, in cases that shatter the lives of entire communities.

Gail Heriot

Professor Gail HeriotBio

Of course, some exercises of federal criminal jurisdiction are appropriate. But the crimes coming within this proposal would be near the bottom of my list of those appropriate for federal prosecution. It's not because they're not important. Murder, rape, and other serious crimes are always important. But the difference between state and federal criminal jurisdiction is not that the states handle the little stuff and the federal government handles the big stuff. Federal jurisdiction is supposed to extend only to categories of crime that have a real connection to an area federal responsibility. One should be able to point to a clause of the Constitution that authorizes the new prohibition without having to blush. And Congress should be especially careful to avoid extending jurisdiction into areas, like this one, for which the potential for prosecutorial abuse or misstep is high.

These are often cases that cause a public uproar–occasionally even hysteria. Indeed, it may be accurate to call hate crimes 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."

Never lose sight of the fact that U.S. Attorneys and other DOJ officials are office holders. Often they aspire to higher office. They may be looking for votes–so they can become state legislators, State Attorneys General, members of the House of Representatives, Governors, etc. These aren't bad people; the vast majority are good people. But the desire to please the crowd is part of their make-up. Can anyone seriously argue that thousands of placard carrying protesters will have no effect on their judgment?  Or that the opportunity to make the front-page of the nation's newspapers will have no effect? Think Duke Lacrosse case. Think Mike Nifong. It is worth noting that the rate of false allegations is fairly high in high-profile hate crimes investigations--at least outside of the tiny minority that involve a death. A number of college campuses have staged major protests against a hate crime incident only to find that the whole thng was a hoax. Now every time a high-profile crime comes along that can be squeezed into the definition of "hate crime" we'll have two prosecutors–one state and one federal–eager for action. If one is professional and conscientious and manages to avoid jumping to conclusions, the other might not be.

The federal law that all this reminds me of the most is the old Mann Act (or White Slavery Act). A century ago, Americans were in the throes of a panic over "white slavery" – then a common term for forced prostitution. They weren't entirely wrong either. Forced prostitution was a problem. Similarly, advocates of this proposal are not entirely wrong about hate crimes. True hate crimes do exist–i.e. crimes motivated by the hatred of a particular race, gender, religion, sexual orientation, etc. But in both cases the extent of the problem was greatly exaggerated. Decent people were frightened into believing that such crimes were much more common than they actually were by political activists interested in attracting attention to their cause.

After some melodramatic posturing over the issue, Congress passed the Mann Act, a broad criminal prohibition on transporting women across state lines for "immoral purposes." Note that, like the wording of the federal hate crimes statute (see my first post), the wording of the Mann Act was absurdly broad. Eventually, it became a tool for abuse. Among those charged with violations were Charlie Chaplin, Frank Lloyd Wright, boxing champion Jack Johnson, poet George Barker, and University of Chicago sociologist William I. Thomas, none of whom had been engaged in forcing women into prostitution. Johnson's "crime", for example, was to have a white girl friend. Similarly, I expect that the federal hate crimes statute will become the subject for abuse. It's just a matter of time.

Ms. Schwartz says that DOJ has brought fewer than 10 cases under the 1969 statute and that under the new statute the number of prosecutions will likely be small. Even if that's so, a lot of abuse can be packed into just a few cases. But we don't know if it's so. The 1969 statute was narrowly drawn: it would have been impossible to bring a large number of cases. That's precisely why advocates of the current proposal were so keen on passing the new proposal. The truth is we have no idea how many cases will be brought under this statute. And after it's passed will too late to be able to do anything about it.

Uh oh! I'm getting too long-winded again. I'll try to answer some of the other points raised by Ms. Schwartz in my next post, especially the point about this really being about providing technical assistance to local authorities. (Short version: Then why include the federal prohibitions at all? I doubt anyone would have taken the time to oppose mere technical assistance. The truth is that everyone knows that the new federal prohibitions were the centerpiece of this legislation and the technical assistance was just a way to buy support from local law enforcement. Arguing that the hate crimes bill should be passed because it contains some provisions for providing technical assistance to local law enforcement is like arguing the health care bill should be passed because it contains some nifty provisions that will provide new x-ray machines in V.A hospitals. There's a bit more to it than that ....)

Lara Schwartz

Lara SchwartzBio

I'll summarize the professor's arguments as follows:

--These crimes aren't high on her priority list

  • --However, they are so high on other people's priority lists that there is "hysteria" over them

--We cannot trust U.S. Attorneys with a law like this because they are actually political figures and will abuse it or use it to launch their careers to a higher level

--This reminds me [Professor Heriot] of an old law that bears absolutely no relationship to the hate crimes legislation but is sufficiently distasteful that we really need to throw it into the mix.

--There could have been some unspecified abuse of power involved in the 10 cases per year that the DOJ has brought under the existing civil rights statute.


We've come a long way from double jeopardy.

The fact of the matter is, hate crimes are high on the priority list of many law enforcement organizations and of most national civil rights organizations because we understand the serious impact that these crimes have on targeted communities.

Prosecutorial discretion is a fundamental part of our criminal justice system. No doubt, state and federal prosecutors have abused and misused their power on occasion, but that unfortunate circumstance can be attributed to personal failings or to inappropriate political influence more than to flaws in particular criminal statutes. There is simply no argument that hate crimes charges create unique or unprecedented temptations for abuse.

Passing hate crimes legislation will not put decent people in jeopardy of prosecution for living their personal lives freely, as the Mann Act did. This Act covers violent crimes resulting in death or bodily injury. We know from FBI data that these crimes are happening. They are primarily motivated by racial animus, though many victims are targeted because of their sexual orientation, gender identity, and religion. This is a real and documented problem. Comparing the plight of these victims and their families to the Johnson white girlfriend case is not only inapposite -- it's disgraceful.

Gail Heriot

Professor Gail HeriotBio haven't come a long way from double jeopardy. Maybe I should summarize my point more accurately that Ms. Schwartz has:

    I'm willing to concede (if you want to call it that) that there are a few limited kinds of cases where both the state and federal governments have a strong interest in taking jurisdiction. Under these circumstances, the dual sovereignty exception to the Double Jeopardy Clause might be defensible: Neither the state nor the federal government should be able to "oust" the other from jurisdiction in such a case simply because it happened to undertake a prosecution first.

    But nobody who cares about the rights of the accused should want a crime to give rise to the potential for both a state and a federal prosecution unless there is a very good reason for doing so. And there is no good reason for doing so here. There is no evidence that state authorities are falling down on the job in prosecuting hate crimes. To the contrary, they have received praise for their handling of hate crimes. Moreover, there are reasons to be especially wary of the possibility of dual prosecutions for hate crimes: The public response to these crimes is often highly politicized and prosecutors are thus likely to be tempted to make a name for themselves by prosecuting aggressively. The number of hate crimes that turn out to be hoaxes is uncommonly high–from the Duke lacrosse case to the alleged knifing of a Hispanic student at Northwestern University, to the alleged attack on a Muslim student at Arizona State University to the alleged rape of a Muslim student at Elmhurst College all the way back to the Tawana Brawley case. There are dozens of other high-profile examples. All in all, this is not an area of the law for which anyone should feel comfortable giving prosecutors two bites at the apple.

    So why have both houses of Congress passed it? Modern legislation is all-too-often just theater. This proposal gave members of Congress the opportunity to grandstand. The various organizations that lobbied for it can tell their members that they've produced results, and engage in another round of fund raising. The problem is that this is real legislation with real consequences. We're stuck with a law that is drafted to be extraordinarily broad and that will include many crimes that very few people would consider hate crimes. (See my first post.)

  I don't want to give the impression, however, that these are the only reasons to oppose the federal hate crimes statute. These are simply the issues that concern me most. All hate crimes statutes, even those that have been tightly drafted and adopted at the state level (and thus don't create double jeopardy problems) , raise significant issues:

    * Why should James Byrd's or Matthew Shepard's killers be treated differently from Jeffrey Dahmer or Ted Kaczynski? Hate crimes can surely be horrible, but there are other crimes that are equally, if not more, horrible.  Ms. Schwartz declares that hate crimes take a huge toll on the community. But so do other violent crimes.

    * 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. But many of these crimes don't get reported to the FBI under the Hate Crimes Statistics Act. Should all such attacks be punished as hate crimes? Or just those that fit the skinhead stereotype? Will it help or hurt the cause of racial harmony when people start taking score?

    * 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.

    *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?

    As for whether or not it's disgraceful to find parallels between the broadly-worded, highly-politicized hate crimes proposal to the broadly-worded, highly-politicized Mann Act, I have this to say. When Congress passed the Mann Act or White Slavery Act in 1910, it led the public to believe that the new law was designed to combat an extremely serious crime–forced prostitution. Lest we forget (and Ms. Schwartz seems to have forgotten) forced prostitution is an extremely serious crime. It is, in effect, kidnap and rape–sometimes conducted repeatedly over long periods of time. Similarly, Congress has led the public to believe that the current proposal will ban violent hate crimes similar to those that led to the deaths of Matthew Shepard and James Byrd–again very serious crimes.

    Both threats were (and are) real. Forced prostitution went on in 1910, and indeed it continues today.  In general, however, it was a crime that state authorities were capable of dealing with.  Murder, rape and other extremely violent crimes motivated purely by victim's race, color, religion, national origin, gender, sexual orientation, gender identity or disability are also all too real. But state authorities can deal with them. And in both cases the threat was (and is) exaggerated. In 1910, women who were hardly at risk at all were sometimes afraid to leave their homes, because they had been repeatedly told that they could be snatched off the street and forced into prostitution at any time. Similarly, irresponsible parties have been known to claim that the nation is facing an alarming level violent crimes motivated by group hatred when this is simply not the case.

    In both cases, the actual statute was broadly worded to include crimes that were far more minor than members of the pubic had understood. With the Mann Act, some were arrested for crossing state lines with a married woman for the purpose of an adulterous liaison–not exactly forced prostitution. Similarly, the hate crimes proposal will cover some minor crimes that would have been misdemeanors under state law and not true hate crimes at all. Suppose someone hurls a group epithet in the course of an altercation. When people get mad they often hurl whatever insults are handy. If the fight gets even slightly physical, it could be a felony. The prosecution need only show the defendant intended to and did cause "bodily injury" (or that the defendant used a weapon and intended to cause bodily injury). But bodily injury is defined to include "physical pain" or "any other injury to the body, no matter how temporary." (S. 909.) A painful slap in the face will count.

Gail Heriot

Professor Gail HeriotBio

Let me sum up: There are many reasons to oppose hate crimes statutes–even those adopted at the state level.  Among those reasons are these (1) they simply duplicate traditional laws against violent crime; (2) they politicize prosecutorial decisions as various identity groups jockey to ensure that they get as much or more recognition than other groups; (3) they increase the difficulty of obtaining a conviction by adding to the number of elements that must be proven, hence increasing the chance of botched prosecutions, which could in turn lead to hard feelings in the community; (4) they give the impression that some crimes are taken more seriously than other equally-malicious and equally-harmful crimes; and (5) by increasing the punishment that would otherwise be available for a given crime, they essentially punish thought.

Regardless of how one comes out on the issue of state hate crimes, however, there are good reasons to reject federal hate crimes and in particular the Matthew Shepard Hate Crimes Prevention Act. The broad federalization of crime gives rise to the danger of re-prosecution, since double jeopardy protections do not apply to separate sovereigns. Unless there is good reason to allow federal prosecutors to have that dangerous power–such as a systematic failure of state prosecutors to enforce the law–they should not have it. Yet the soon-to-be-law Matthew Shepard Hate Crimes Prevention Act does liberally confer it, since the statute is written in an absurdly broad way.

The next time you see small children out playing, keep this in mind: If the boys create a fort with "No Girls Allowed!" or vice versa, the uninvited gender may show up anyway. If that happens, let's hope things don't get physical. The boy who slaps a girl (or the girl who slaps a boy) in that situation would probably be committing a FELONY under federal law.

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