hate crimes

Purpose of Hate-Crimes Bill Is To Promote Double Jeopardy and Shred Civil Liberties

by Hans Bader on May 9, 2009 · 1 comment

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

On April 29, the House voted 249-to-175 to pass the federal hate crimes bill, which the bill’s supporters explicitly want to use to prosecute people already found innocent in state court all over again in federal court. Such reprosecutions are, sadly, allowed under a Constitutional loophole known as the “dual sovereignty” doctrine, which says that state and federal governments are different sovereigns, and that double jeopardy only applies when you are prosecuted twice by the same sovereign. (This loophole was established in the Supreme Court’s 5-to-4 Bartkus decision, over a stinging dissent by Justice Black).

In the past, the possibility of reprosecutions was viewed as a vice, not a virtue, and civil-rights advocates and lawmakers alike have sometimes cited this risk in opposing bills broadening the reach of federal criminal laws. But civil-rights groups now view double jeopardy as a virtue when it comes to people accused of hate crimes. They consider hate crimes so terrible that not even innocence should be a defense.

The latest example of this comes from the Leadership Conference on Civil Rights (a coalition of hundreds of liberal civil-rights groups including the ACLU), and the Mexican American Legal Defense and Educational Fund in a May 5 blog commentary entitled, “Pennsylvania Teenagers Acquitted of Hate Crime; Federal Law Needed.” It approvingly quotes the General Counsel of MALDEF arguing that the federal hate-crimes bill is needed based on the acquittal in state court of teenagers accused of a hate crime against an illegal alien from Mexico: “Last week, the House of Representatives passed the Local Law Enforcement Hate Crime Prevention Act, which will . . . give federal government jurisdiction over prosecuting hate crimes in states where the current law is inadequate. ‘[T] his verdict underscores the importance of the passage of this Act,’ said Henry Solano, MALDEF interim president and general counsel. ‘It is time for the Department of Justice to step in and bring justice to the Ramirez family and send a strong message that violence targeting immigrants will not be tolerated and will be prosecuted to the full extent of the law.’ The Justice Department is currently investigating whether to prosecute the two teenagers under federal civil rights statutes.”

By contrast, four Independent and Republican members of the U.S. Civil Rights Commission opposed the federal hate-crimes bill in an April 29 letter, calling it a “menace to civil liberties,” since its “most important effect” will be to circumvent double-jeopardy guarantees.

MALDEF and the Leadership Conference on Civil Rights are not alone in seeking to reprosecute people found innocent in state court. Many supporters of the hate crimes bill want to allow those found innocent to be reprosecuted in federal court. 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.”

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 and law professors like Gail Heriot have criticized the federal hate-crimes bill for taking advantage of a loophole in constitutional double-jeopardy protections.

The hate-crimes bill also violates constitutional federalism safeguards, such as the Supreme Court’s decision in United States v. Morrison (2000).

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 existing federal hate-crimes law only covers race, but not gender, sexual orientation, or disability, and it does not reach most hate-crimes, but rather only those that involve federally-protected activities).

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).

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 (albeit with a long series of reservations, understandings, and declarations — including one dealing with double jeopardy) 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, and not seek to hide behind any reservations made by the U.S. in ratifying the treaty.

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.

Obama Breaks Yet Another Promise

by Hans Bader on May 8, 2009

in Bailout Watch, Economy, Energy, Global Warming, Legal, Nanny State, Personal Liberty, Politics as Usual, Stimulus to Nowhere

Obama promised to end the military’s ban on gays, but his Administration has not done so. In fact, it recently kicked out a West Point graduate “who is fluent in Arabic and just returned from Iraq,” just because he’s gay. Never mind that there is a severe shortage of Arabic speakers and translators in the U.S. military. (Liberal gay groups seem to have given him a pass on this issue, perhaps because he has promised to push another bill they support — the federal hate-crimes bill — which would erode civil liberties).

This is just one in a long line of broken campaign promises by Obama, like his pledge to enact a “net spending cut,” his promise not to raise taxes on anyone making less than $250,000 a year, and his promise not to sign bills without first giving the public five days of notice.

The Congressional Budget Office says that Obama’s proposed budgets will explode the national debt through massive spending increases, increasing the already large deficits left behind by the Bush Administration from $4.4 trillion to $9.3 trillion. His record-setting budgets flagrantly violate his promise to propose a “net spending cut.”

Obama broke his campaign promise not to raise taxes on anyone making less than $250,000 a year by signing a regressive SCHIP excise tax increase, and by proposing a cap-and-trade energy tax that could charge up to $2 trillion, a massive cost that Obama himself has said will be passed “on to consumers,” as well as homeowners and motorists. (In 2008, Obama privately admitted to the San Francisco Chronicle that if he was elected, electricity bills would “skyrocket” under his Administration, but it didn’t report that).

Over and over again, Obama has broken his campaign promise to give the public five days of notice before signing bills into law, including his very first law, the trial-lawyer backed Lilly Ledbetter Fair Pay Act. Obama also repeatedly made false claims about the Supreme Court decision that the Ledbetter law overruled, misstating the facts of that case and how long it gives employees to sue over pay discrimination.

Obama broke seven campaign promises dealing with transparency and clean government in signing the $800 billion stimulus package, much of whose contents were secret until shortly before Congress voted on it, and whose 1400 pages went unread by most Congressmen who voted on it.

Obama’s broken promises are part of a larger pattern of dishonesty. Obama claimed his $800 billion stimulus package was needed to avert “irreversible decline.” But the Congressional Budget Office concluded before and after its passage that the stimulus package will actually cut the size of the economy in the long run. Obama’s budgets don’t add up, either, piling up $9.3 trillion in red ink, according to the Congressional Budget Office, a staggering $2.3 trillion more than Obama claimed.

Censoring Critical Blogs as “Harassment” Would Violate the First Amendment

by Hans Bader on April 30, 2009 · 3 comments

in Odds & Ends

Under a recently-introduced bill, H.R. 1966, bloggers would face up to two years in prison if they “harass” public figures by criticizing them in a “severe, repeated, and hostile” manner, and thereby cause them “substantial emotional distress.”

U.C.L.A. Law Professor Eugene Volokh, the author of a First Amendment treatise, has concluded that the bill is unconstitutional. I agree, as I explain here. As a federal appeals court noted in DeJohn v. Temple University (2008), “there is no harassment exception to the First Amendment’s free speech clause.” Speech that causes emotional distress can be protected,as the Supreme Court made clear in barring a lawsuit by Jerry Falwell over an offensive parody.

Under this bill, a blogger like Emile Zola, the courageous writer who exposed an anti-semitic witchhunt a century ago in the infamous Dreyfus Affair through his repeated and “vehement public” denunciations of public officials, would be subject to prosecution. His “severe, repeated, and hostile” denunciations resulted in many public figures being discredited and removed from office, which no doubt caused them “substantial emotional distress.”

The bill is a telling example of how the American Left has turned against free speech and civil liberties. The bill’s sponsor, Linda Sanchez (D-CA), and nearly all of her 14 co-sponsors are liberals. All of them backed the federal hate-crimes bill passed by the House yesterday, which is designed to allow people who have been found innocent in state court to be reprosecuted in federal court. (That bill has been criticized by four members of the U.S. Civil Rights Commission, including law professor Gail Heriot, and by civil libertarian Wendy Kaminer. Advocates of the federal hate-crimes bill once cited the defendants in the Duke Lacrosse case, who were innocent, as an example of people who should be prosecuted in federal court).

As a student at the University of Virginia in November 1990, I witnessed a four-hour long speech by a racist, anti-semitic demagogue from the Nation of Islam. When no one else would do so, perhaps for fear of physical retaliation, I and my friends Arshad and David repeatedly and publicly denounced the speech — and the head of U.Va.’s Black Student Alliance (BSA), who sponsored and celebrated the speech. Our criticism no doubt struck the BSA’s head as “severe, hostile, and repeated,” and caused him “emotional distress,” since he transferred to Hampton State University in the middle of his third year in college after being ostracized by outraged students. (46 people of all different races came up to me and thanked me for my criticisms, but no one wanted to do so publicly, lest they be accused of “racism” or receive threats from Nation of Islam supporters, as my friend David did. My friend Arshad, a Bangladeshi Muslim who criticized the speech and the Nation of Islam as a “heretical expression of race hatred,” was left alone, probably because it is harder to brand a racial minority as being racist).

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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