federal hate crimes bill

Civil Rights Commission Members Urge “NO” Vote on Federal Hate Crimes Bill

by Hans Bader on April 29, 2009 · 2 comments

in Features, Legal, Nanny State, Personal Liberty, Politics as Usual, Sanctimony

Four members of the U.S. Civil Rights Commission urged Congress not to pass the federal hate crimes bill (LLEHCPA). In an April 29 letter to Congressional leaders, they point out that it would circumvent Constitutional protections against double jeopardy, giving the federal government the power to reprosecute people in federal court even after they have been found innocent of rape and other “hate crimes” in state court:

“We believe that LLEHCPA will do little good and a great deal of harm. Its most important effect will be to allow federal authorities to re-prosecute a broad category of defendants who have already been acquitted by state juries–as in the Rodney King and Crown Heights cases more than a decade ago.”

“We regard the broad federalization of crime as a menace to civil liberties. There is no better place to draw the line on that process than with a bill that purports to protect civil rights.”

“While the title of LLEHCPA suggests that it will apply only to “hate crimes,” the actual criminal prohibitions contained in it do not require that the defendant be inspired by hatred or ill will in order to convict. It is sufficient if he acts “because of” someone’s actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity or disability. Consider:

*Rapists are seldom indifferent to the gender of their victims. They are virtually always chosen “because of” their gender.

*A robber might well steal only from women or the disabled because, in general, they are less able to defend themselves. Literally, they are chosen “because of” their gender or disability.”

“If all rape and many other crimes that do not rise to the level of a “hate crime” in the minds of ordinary Americans are covered by LLEHCPA, then prosecutors will have “two bites at the apple” for a very large number of crimes.”

We wrote earlier about how backers of the federal hate-crimes bill want to use it to reprosecute people who have already been found innocent, and to prosecute people whom state prosecutors decline to charge because the evidence against them is so weak. Supporters of the bill have given only lame rationalizations for why state not-guilty verdicts should not be respected. (Some of the bill’s supporters have even made the strange claim that the defendants in the Duke Lacrosse case, whom the North Carolina attorney general later admitted were actually innocent, should have been reprosecuted in federal court).

Such reprosecutions fall within a loophole in Constitutional protections against double jeopardy known as the “dual sovereignty” doctrine. But ironically, they violate Article 14 of the International Covenant on Civil and Political Rights — a treaty that many of the bill’s backers harp on to push liberal causes, such as restrictions on the death penalty and antiterrorism measures. Article 14′s ban on double jeopardy has no “dual sovereignty” loophole, unlike the U.S. Constitution. That is an additional reason to be skeptical of the hate-crimes bill, which is known as the Local Law Enforcement Hate Crimes Prevention Act of 2009 (LLEHCPA, H.R. 1913).

The Civil Rights Commissioners signing the letter were law professor Gail L. Heriot; former Office for Civil Rights head Gerald A. Reynolds; former Justice Department lawyer Todd Gaziano; and National Labor Relations Board member Peter N. Kirsanow. The letter was addressed to House Speaker Nancy Pelosi, and Congressmen John Boehner, Eric Cantor, James Clyburn, and Steny Hoyer.

Federal Hate Crimes Bill Will Erode Civil Liberties and Undermine Constitutional Safeguards Against Double Jeopardy

by Hans Bader on April 26, 2009 · 4 comments

in Legal, Personal Liberty, Politics as Usual, Sanctimony

On April 23, the House Judiciary Committee voted 15-to-12 to approve a dramatic expansion of the federal hate-crimes law. The bill, H.R. 1913, would add gender, sexual orientation, and transgender characteristics to a law originally designed to protect racial minorities. It also greatly expands the law’s reach over local offenses typically handled by state prosecutors, by eliminating many jurisdictional limits.

The bill would allow people who have been found innocent of a hate crime in state court to be reprosecuted in federal court. Many supporters of the federal hate crimes bill want to allow people who have been found innocent of a hate crime in state court to be reprosecuted in federal court, citing the Pennsylvania teenagers who were recently acquitted of committing a hate crime against an illegal alien. As one supporter put it, “the federal hate crimes bill serves as a vital safety valve in case a state hate-crimes prosecution fails.” The claim that the justice system has “failed” when a jury returns a not-guilty verdict is truly scary and contrary to the constitutional presumption of innocence and the right to trial by jury.

But it is a view widely shared among supporters of the hate-crimes bill. Syndicated columnist Jacob Sullum pointed out in 1998 that Janet Reno, Clinton’s Attorney General, backed the bill as a way of providing a federal “forum” for prosecution if prosecutors fail to obtain a conviction “in the state court.”

As Sullum noted, the federal hate crimes bill exploits a loophole in constitutional protections against double jeopardy, known as the “dual sovereignty” doctrine. The Supreme Court created this loophole in its 5-to-4 Bartkus decision.

Supporters of the hate crimes bill also see it as a way to prosecute people even in cases where the evidence is so weak that state prosecutors have decided not to prosecute. Attorney General Eric Holder has pushed for the hate crimes bill as a way to prosecute people whom state prosecutors refuse to prosecute because of a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each, a federal jury acquitted the accused, finding them not guilty.

Advocates of a broader federal hate-crimes law have pointed to the Duke lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players — even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina’s attorney general conceded, and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations.

Civil libertarians like Wendy Kaminer have criticized the federal hate-crimes bill for taking advantage of a loophole in constitutional double-jeopardy protections. Law professor Gail Heriot, a member of the U.S. Civil Rights Commission, has also criticized the bill for circumventing protections against double-jeopardy. Three other Civil Rights Commissioners joined her in urging Congress not to pass the federal hate crimes bill in an April 29 letter.

I wrote earlier about how the federal hate-crimes bill backed by Obama and Congressional leaders would violate constitutional federalism safeguards, such as the Supreme Court’s decision in United States v. Morrison (2000), and how it would allow people found innocent in state court to be retried in federal court.

Supporters of the hate-crimes bill have all sorts of lame rationalizations for disregarding not-guilty verdicts. Hate-crimes activist Brian Levin, who testified before Congress, claims reprosecutions are needed because local jury pools are biased. NOW Legal Defense Fund told Congress that reprosecutions are appropriate if local prosecutors had “inadequate resources” or were of “questionable effectiveness.” (These rationalizations make no sense and have no principled limits: there is no evidence that state juries are more biased than the federal juries that would hear federal hate-crimes cases, or that they are typically biased; and even well-funded prosecutors have complained of having inadequate resources).

Given the politically-charged nature of many hate-crimes trials, Kimberly Potter of New York University was probably right when she told Congress back in 1998 that if the federal hate crimes bill is enacted, “the acquittal of [hate-crimes] defendants in state court will frequently trigger demands for federal prosecution.”

The bill’s sponsors seldom talk about that controversial aspect of the bill, however, when addressing the general public. Instead, they trumpet the fact that the hate-crimes bill would include gays, lesbians, and transgendered people among the classes of people it covers.

The bill’s supporters, such as the National Center for Lesbian Rights and the ACLU, claim the law is needed because of the case of Angie Zapata. Zapata is a transgender woman whose lover killed her when he found out she was biologically a man. But this argument makes little sense, given that Zapata’s killer was swiftly convicted and sentenced to life in prison without the possibility of parole by a Colorado state court, which found the killer guilty of both murder and hate crimes. (The federal hate crimes bill does not provide for the death penalty, and its maximum penalty is the same one that Zapata’s killer got: life without parole).

The bill’s Senate sponsors named the 2008 version of the bill after Matthew Shepard, a young gay man who was killed in Wyoming. That was a cynically clever strategy. Hate-crimes laws are fairly popular: 45 states have hate crimes laws, and most of them ban hate-crimes based on sexual orientation.

But precisely for that reason, a federal hate-crimes law is duplicative and unnecessary. Moreover, even the few states that don’t have hate-crimes laws, like Wyoming, still punish hate criminals under their laws against murder and assault. The killers of Matthew Shepard were given life sentences, which is the maximum penalty available under the federal hate-crimes bill. (Ironically, the Wyoming prosecutor wanted them to get the death penalty, while liberal groups like Lambda Legal, which supports the federal hate-crimes bill, oppose the death penalty in all cases). There is no evidence that any state gives people who commit hate crimes lesser sentences on average than people who commit similarly violent crimes not motivated by bias.

There are plenty of reasons to oppose the federal hate crimes bill, which is known as the Local Law Enforcement Hate Crimes Prevention Act of 2009. But since it was used as a political wedge issue in the 2008 election by both the Democratic Party and President Obama, who support it, there is little doubt that it will pass Congress and be signed into law by the President.

The ACLU long opposed the loophole in Constitutional double-jeopardy protections that the bill is designed to exploit. But it switched its longstanding position in order to back the federal hate crimes bill, apparently believing that civil-liberties must be sacrificed in order to fight hate.

The ACLU’s support for the federal hate-crimes bill is hypocritical for another reason: the bill seeks to circumvent double-jeopardy protections recognized by a treaty called the International Covenant on Civil and Political Rights (ICCPR), which the U.S. ratified in 1992. The ACLU has also long argued that the United States should not only comply with that treaty but give it a very expansive interpretation.

Article 14 of the treaty specifically prohibits double jeopardy, without any exception for the loophole relied on by supporters of the federal hate crimes bill, mandating that “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted.”

But the ACLU conveniently ignores the treaty when it comes to the federal hate-crimes bill, even though the ACLU has sought to stretch the treaty’s language to achieve a host of liberal political goals, such as mandating “affirmative action” in the U.S. The ACLU also has argued for an expansive interpretation of the treaty to require benefits for illegal aliens. For example, the ACLU criticizes the U.S. Supreme Court’s decision in the Hoffman Plastics case, which refused to award illegal aliens backpay against employers who fired them. The ACLU’s bizarre interpretations of the treaty conflict not only with its language, but also with the longstanding practices of most ICCPR signatory countries, which neither practice affirmative action nor give benefits to illegal aliens.

Left-Wing Attorney General Ashamed of End to Discrimination

by Hans Bader on March 17, 2009 · 1 comment

in Legal, Politics as Usual, Sanctimony

A federal appeals court recently upheld an injunction barring a county official from continuing to prevent people from voting based on their race. The unanimous ruling in United States v. Brown (5th Cir. 2009) was a victory for the Justice Department, which brought the case back during the Bush Administration.

But Eric Holder, Obama’s new attorney general, is ashamed of the decision, and his Justice Department is keeping mum about it. The Justice Department refused even to issue a press release announcing the decision, even though it is customary to issue press releases after all Justice Department wins.

Why the deafening silence? Because the victims of the blatant and massive voting discrimination in Noxubee County, Mississippi, were whites prevented from casting ballots in Democratic primaries by the black political boss who ran the county. (A few blacks also had their voting rights violated).

Holder’s attitude is so small-minded and parochial that it is an embarrassment to the Justice Department.

It has been more than 30 years since a unanimous Supreme Court ruled in McDonald v. Santa Fe Trail Transportation Company (1976) that all races — including whites –are covered by the civil-rights laws. That ruling, which allowed white employees to challenge their race-based firing, was authored by the Supreme Court’s first black justice, Thurgood Marshall, who had earlier successfully argued the landmark case of Brown v. Board of Education, which struck down school segregation in 1954.

But apparently, the principles of the liberal icon Thurgood Marshall are just too “right-wing” for this left-wing administration. (And for many left-wing “career” Justice Department employees in the Voting Rights Section and Civil Rights Division, who refused to work on the suit against voting discrimination in Noxubee County because the victims were white. Only because of the persistence of Bush appointees like Hans Von Spakovsky did this case ever see the light of day).

Holder is simply blind to reality. He can’t accept the reality of even blatant discrimination against white people. Meanwhile, he also refuses to accept the possibility of innocence when white people are accused of hate crimes, citing examples of white people being acquitted in state court as a justification for passing a broad new federal hate-crimes law, which would allow people found not guilty in state court to be retried in federal court.

Ironically, Holder claims that Americans are a “nation of cowards” on matters of race.

Incoming Attorney General Eric Holder Is Hostile to Civil Liberties

by Hans Bader on January 23, 2009 · 1 comment

in Legal, Personal Liberty, Politics as Usual

Eric Holder, Obama’s choice for attorney general, is hostile to civil liberties. He has previously expressed veiled support for using the misnamed “Fairness Doctrine” to squelch “conservative critiques” and “conservative media,” such as Fox News (which Holder believes is anything but “Fair and Balanced,” contrary to its slogan). The “Fairness Doctrine” is designed to shut down conservative Talk Radio.

Holder also has advocated hate-crimes legislation to prosecute people whom state prosecutors refuse to prosecute because of a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each, a federal jury acquitted the accused, finding them not guilty.

Advocates of a broad federal hate-crimes law have pointed to the Duke Lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players — even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina’s attorney general conceded, and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations. Supporters of federal hate-crimes legislation like Janet Reno view it as a way of getting around constitutional protections against double jeopardy, by allowing reprosecution in federal court of people who have already been found innocent in state court.

Civil libertarians like Wendy Kaminer have criticized the federal hate-crimes bill for taking advantage of a loophole in constitutional double-jeopardy protections. So has Gail Heriot, a law professor and member of the U.S. Civil Rights Commission.

Holder has also been criticized by civil libertarians for seeking to undermine the Sixth Amendment right to counsel, and by gun-rights advocates for seeking to eviscerate Second Amendment rights recognized by the Supreme Court.

Holder was also involved in the disgraceful pardon of fugitive millionaire Marc Rich,, whose ex-wife was a major Clinton donor, and the pardons of unrepentant Puerto Rican terrorists.

I wrote earlier about how the federal hate-crimes bill backed by Obama and Congressional leaders would violate constitutional federalism safeguards, and how it would allow people found innocent in state court to be retried in federal court. Supporters of the hate-crimes bill have all sorts of rationalizations for disregarding not-guilty verdicts. Hate-crimes activist Brian Levin, who testified before Congress, claims reprosecutions are needed because local jury pools are biased. NOW Legal Defense Fund told Congress that reprosecutions are appropriate if local prosecutors had “inadequate resources” or were of “questionable effectiveness.”

Given the politically-charged nature of many hate-crimes trials, Kimberly Potter of New York University was probably right when she told Congress back in 1998 that if the federal hate crimes bill is enacted, “the acquittal of [hate-crimes] defendants in state court will frequently trigger demands for federal prosecution.”

The defendants in the Duke lacrosse case, charged with an interracial rape, were vindicated by DNA evidence. But their detractors, such as former John Edwards staffer Amanda Marcotte (who has repeatedly smeared critics of the federal hate crimes bill as being bigots) and radical activist Alton Maddox (who was involved in the Tawana Brawley hate-crime hoax), continue to insist that they were guilty of hate crimes, and that more hate-crimes laws are needed.

For some people, it seems, hate crimes are so terrible that not even innocence should be a defense. Such people eagerly await passage of the federal hate-crimes bill.

Federal Hate-Crimes Bill Promotes Double Jeopardy

by Hans Bader on May 23, 2007

in Legal, Personal Liberty, Politics as Usual, Sanctimony

Yesterday, I wrote about the fact that many supporters of the federal hate crimes bill want to allow people who have been found innocent of a hate crime in state court to be reprosecuted in federal court.

Apparently, this was true of the most prominent supporter of the bill when it was first introduced, the Clinton Administration. Syndicated columnist Jacob Sullum pointed out in 1998 that Janet Reno, Clinton’s Attorney General, backed the bill as a way of providing a federal “forum” for prosecution if prosecutors fail to obtain a conviction “in the state court.”

As Sullum notes, the hate crimes bill exploits a loophole in constitutional protections against double jeopardy, known as the “dual sovereignty” doctrine. The Supreme Court created this loophole in its 5-to-4 Bartkus decision.

UPDATE, April 29, 2009: Attorney General Eric Holder also has advocated hate-crimes legislation to prosecute people whom state prosecutors refuse to prosecute because of a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each, a federal jury acquitted the accused, finding them not guilty.

Advocates of a broad federal hate-crimes law have pointed to the Duke Lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players — even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina’s attorney general conceded, and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations. Supporters of federal hate-crimes legislation like Janet Reno view it as a way of getting around constitutional protections against double jeopardy, by allowing reprosecution in federal court of people who have already been found innocent in state court. For example, MALDEF and the Leadership Conference on Civil Rights cite the example of Pennsylvania teenagers who were found innocent of a hate crime against an illegal alien in state court as a reason for passing the bill.

Civil libertarians like Wendy Kaminer have criticized the federal hate-crimes bill for taking advantage of a loophole in constitutional double-jeopardy protections. (Attorney General Holder has also been criticized by civil libertarians for seeking to undermine the Sixth Amendment right to counsel.) U.S. Civil Rights Commissioner Gail Heriot has also criticized the bill for circumventing protections against double-jeopardy. In an April 29 letter, she and three other Civil Rights Commissioners urged Congress not to pass the federal hate crimes bill.

I wrote earlier about how the federal hate-crimes bill backed by Obama and Congressional leaders would violate constitutional federalism safeguards, and how it would allow people found innocent in state court to be retried in federal court. Supporters of the hate-crimes bill have all sorts of rationalizations for disregarding not-guilty verdicts. Hate-crimes activist Brian Levin, who testified before Congress, claims reprosecutions are needed because local jury pools are biased. NOW Legal Defense Fund told Congress that reprosecutions are appropriate if local prosecutors had “inadequate resources” or were of “questionable effectiveness.”

Given the politically-charged nature of many hate-crimes trials, Kimberly Potter of New York University was probably right when she told Congress back in 1998 that if the federal hate crimes bill is enacted, “the acquittal of [hate-crimes] defendants in state court will frequently trigger demands for federal prosecution.”

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