Legislative Alert: The Kennedy Hate Crimes Prevention Act

Civil Rights Practice Group Newsletter - Volume 2, Issue 3, Winter 1998

December 1, 1998

Gail Heriot

Americans reacted with revulsion when they learned of the brutal murders in Jasper, Texas and Laramie, Wyoming this year. For a time, these towns became synonymous with the term "hate crime." There ought to be a law, some people said, preferably a federal one.

The proper response to their assertion is obvious: There is a law. Murder is illegal everywhere, including Jasper and Laramie, regardless of its motivation. Indeed, all but nine states have additional special hate crimes statutes. No one has claimed that state authorities have neglected their duty to enforce the law. In both Texas and Wyoming, state authorities have acted in an exemplary fashion to ensure that justice is done.

Nevertheless, federal hate crimes legislation has been pushed in both houses of Congress--S. 1529 and H.R. 3081. During the height of the publicity surrounding the murders of James Byrd and Matthew Shepard, this legislation, titled in the Senate "The Hate Crimes Prevention Act of 1998," gained considerable momentum. Hearings were held, extensive negotiations took place, and high administration officials, including Attorney General Janet Reno, declared the proposal's passage to be a high priority. Ordinarily sensible members of Congress didn't wish to be seen opposing such legislation--and so they didn't.

The proposed legislation: Current federal law already prohibits certain "hate crimes," but the ban is narrow. In order to qualify, the victim must be attacked because of his race, religion or national origin and because he is engaged in certain specifically protected activities (such as attending a public school). The latter element is by no means optional. If the defendant attacks the victim solely because of his race and not because he is attending a public school, no violation has occurred.

The proposed legislation drops all reference to specially protected activities. In addition, it adds gender, sexual orientation and disability to the list of forbidden grounds of action. Such an expansion is both significant and unwise.

Broad federalization of crime: Like all expansions of federal criminal law, the proposed legislation will add a new layer of bureaucracy to law enforcement and increase the number of turf battles among ambitious prosecutors, diverting resources away from frontline crime fighting and towards the filing of reports and political maneuvering.

But this is no ordinary expansion of federal criminal law. It is an especially broad one, because it is drafted in such a way as to cover very nearly any crime that federal authorities might wish to cover. Despite the use of the word "hate" in the title, the proposed legislation is not really a hate crime statute, since it does not require proof of animus. It is sufficient that the defendant acts "because of race, color, ...." Consider:

  • 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 women because, in general, women are smaller and less likely to be armed. Literally, he has chosen his victim "because of" her gender.
  • A manager may be so exasperated with her secretary's slow typing that she stabs the secretary to death. If she later learns that her secretary suffered from dyslexia, which made it impossible for her to type any faster, has the manager acted "because of" the victim's disability?

The language of the bill invites broad construction--much broader than its title suggests--and the Department of Justice has refused to disclaim such a construction. Over the long haul, there is a substantial risk that it will be used to federalize more crime than its more moderate supporters ever dreamed. Crimes will occur over which federal authorities will desperately want to assert jurisdiction--often for purely political reasons. When this happens, the temptation to take advantage of the law's sloppy drafting will be irresistible.

End-run around criminal procedural safeguards: Clinton administration officials have argued that the legislation is necessary, because state criminal procedures often make it difficult to obtain convictions. As an example, they cite an earlier Texas case involving an attack on several black men by three white hoodlums. Texas law would have required the three defendants to be tried separately. By prosecuting them under federal law, however, they could be tried together. Such an argument gives rise to an obvious question: If the citizens of Texas believe that separate trials are necessary to ensure that criminal defendants are treated fairly, isn't it unseemly for the federal authorities to intervene to prevent that? No one is claiming that Texas applies this rule only when a white person attacks a black person. And surely no one is arguing that Texans are soft on crime.

One of the most troubling aspects about this and other broad attempts to federalize crime is their effect on the prohibition against double jeopardy. The doctrine of dual sovereignty allows the federal government to prosecute a defendant even if he has been acquitted in state court (and vice versa). Such a result may be palatable if federal criminal jurisdiction tends to be minimal. If federal criminal jurisdiction is broad, however, it quickly becomes pathological. Every case gives rise to two bites at the apple. This is already rapidly becoming the case in politically-charged cases. In the Rodney King prosecutions, the federal authorities swooped in with a section 1983 prosecution to appease the demands from groups often associated with the left side of the political spectrum. In the Crown Heights case, the demands came from what is considered the right, but again the federal authorities were happy to act (this time using the existing federal hate crimes law). The pattern is becoming frightening.

It seems increasingly likely that, unless opponents of this proposed legislation become more vocal, it will eventually pass in some form or another. For updated information about the bills, visit www.senate.gov and www.house.gov.

Gail Heriot is a Professor of Law at George Mason University School of Law.