James Byrd

Obama Justice Department’s Double Standard on Hate Crimes

by Hans Bader on September 14, 2011

in Legal, Nanny State, Personal Liberty

The Obama administration has a double standard on hate crimes. When the victim is black or Hispanic, they prosecute the alleged offender. When the victim is white, they don’t. This violates constitutional equal-protection guarantees, which forbid discrimination against whites, except for certain bona fide affirmative action programs in employment, education, or contracting.

As a former Justice Department civil-rights lawyer notes, the Criminal Section of the Justice Department’s Civil Rights Division does nothing when the victim of a hate crime is white:

when the victims of racial violence are white, nothing happens.

When a mob of blacks savagely attacked random whites at the Wisconsin State Fair earlier this summer, the Section did nothing. When a similar riot occurred at the Iowa State Fair in August 2010 — where bands of black teens organized a “beat whitey night” — the Section once again did nothing. Last month, still another flash mob of blacks beating whites took place in Philadelphia, yet the Section did nothing. The same is true near Pittsburgh and in Ohio.

Just like the outrageous dismissal of the New Black Panther Party case, there is a pervasive hostility in this administration to bringing cases on behalf of white victims.

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Parody Becomes Law: Crimes Against Homeless Become “Hate Crimes”; Hate-Crimes-Envy Spreads

by Hans Bader on April 22, 2010 · 4 comments

in Legal, Personal Liberty, Politics as Usual, Sanctimony

Florida is now poised to join Maryland and Maine in treating crimes targeting the homeless as “hate crimes,” with increased penalties of up to five years for assaults on a homeless person.

The idea started out in Maryland as a parody.  The legislation’s author, a socially-conservative state senator, was by his own admission “motivated by cynicism: He was offended by legislation adding sexual orientation to the list of protected categories, which includes race, religion and national origin.”  So to parody it, he proposed adding all sorts of groups like the homeless to the protected list.

But his idea unexpectedly took off, as anti-poverty groups and homeless advocates backed his legislation to add the homeless to the state’s hate crimes law.  And he came to view it as a good idea, based on what you might call “hate crimes envy”: wasn’t it only fair to add the homeless if gay people were already included, especially since homeless people were allegedly more “vulnerable,” more deserving, and had less political “clout?”   (There is a related phenomenon called “censorship envy” that results in foreign hate speech laws getting broader and broader over time, as each minority group demands its own protection against political blasphemy.)

Lost in this train of reasoning is the fact that violence against the homeless is already forbidden by law, without any need for hate crimes laws.  The idea that every “vulnerable” group needs its own hate crimes law threatens to leave criminal codes littered with special protections for an ever-growing laundry list of protected groups.

Turning crimes into “hate crimes” can also make prosecutions considerably more expensive. Often, it is easy to establish that a criminal committed a crime, but very difficult to establish precisely why the criminal committed the crime.   A violent crime could have been committed because of personal animus against the victim (not a hate crime), an animus towards the victim’s group (a hate crime), or some combination of the two.  A criminal may select victims partly out of greed and partly based on membership in a protected group (like a robber who disproportionately preys on women or the disabled based on their perceived vulnerability), making it hard to determine whether the crime is a hate crime.   Proving why the criminal acted could add enormously to the expense of the prosecution even though the criminal is equally dangerous, and deserves to go to jail, regardless of why he committed the crime.

Moreover, homelessness is not an immutable characteristic, like race or gender, but rather is defined partly by behavior.  That makes it hard to interpret what it means to commit a crime based on someone’s homelessness, i.e., a hate crime.  If you get into a fight with a homeless person who is squatting on or near your property, over their squatting, is that based on their homeless status (because it presumably would not have occurred unless they were homeless), and thus a hate crime, or is it based on their behavior (the squatting, which is arguably linked to their homeless status)?  (Note that many so-called hate-crimes laws, like the federal hate crimes law, do not, contrary to their name, require proof of hatred, only that the defendant have acted because of, or partly because of, the victim’s protected status or characteristic.  As law professor and U.S. Civil Rights Commissioner Gail Heriot notes, if a burglar kills a male homeowner to avoid detection, but then lets a female homeowner live because he finds “himself unable to shoot a woman,” he has literally violated the federal hate crimes law, since his actions were based partly on gender.)

(My former apartment-mate in Los Angeles, a bleeding-heart liberal, got into a fight with a homeless man over his squatting on the parking lot of the apartments we lived in; it culminated in the homeless man slashing his tires.  It will probably never be clear to what extent my apartment-mate’s animus was exacerbated by the man’s bad smell and other characteristics arguably associated with his homeless status, such as his excreting on the pavement.  My apartment-mate was not pleased to have the homeless man there on premises while he was seeking to rent out the apartment, viewing it as an impediment to finding a tenant.  If prosecutors wanted to, they could easily find an “expert witness” to testify that my apartment-mate harbored an animus towards the homeless.  It is not hard to find so-called “expert witnesses” to testify to real or imaginary biases in California, as any lawyer who practices employment discrimination law there could no doubt attest.  A plaintiff’s lawyer can easily find a psychologist or diversity consultant to testify as an “expert witness” (for a fee) that the plaintiff has suffered Post-Traumatic Stress Disorder as a result of workplace jokes (even though that is impossible, according to findings by psychologists like Paul Lees-Haley), or that the plaintiff is a victim of discrimination (even if the plaintiff and the accused supervisor belong to the same gender or race).)

These state hate crimes laws are unwise, but at least they do not raise the serious civil liberties problems associated with the recently-expanded federal hate crimes law.  The federal hate crimes law is designed to circumvent constitutional double-jeopardy safeguards (by allowing people found innocent in state court to be reprosecuted all over again in federal court).  It also raises serious federalism issues, since it may exceed Congress’s power under the Commerce Clause.

Obama Signs Hate-Crimes Bill Into Law; Critics Say It Circumvents Constitutional Safeguards Against Double Jeopardy

by Hans Bader on October 28, 2009 · 2 comments

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

Today, President Obama signed into law a bill that will dramatically expand the federal hate crimes law, enabling prosecutors to bring federal charges against people who were previously found innocent of hate crimes in state court.  The hate-crimes provisions were added to a defense appropriations bill, which the President signed in a White House signing ceremony this afternoon at around 2:30 p.m.

The new law dramatically expands the reach of the existing federal hate-crimes law that was already on the books, by getting rid of the requirement that a hate crime affect federally-protected activities to be prosecuted in federal court.  It also adds sexual orientation, gender, disability, and transgender characteristics to a law that was originally designed to protect racial minorities.

The hate-crimes bill was opposed by the U.S. Commission on Civil Rights for allowing the reprosecution in federal court of people found innocent in state court.  The Commission called the new law a “menace to civil liberties” because it is an end-run around constitutional guarantees against double jeopardy.

As explained earlier, the bill’s sponsors seek to use it to reprosecute people in federal court who have already been found innocent of hate crimes in state court, taking advantage of the “dual sovereignty” loophole in constitutional protections against double jeopardy.  Civil libertarians like Nat Hentoff and Wendy Kaminer thus object to the bill on double-jeopardy grounds.   Backers of the bill, like the Leadership Conference on Civil Rights and Commissioner Michael Yaki, supported the bill partly as a way of prosecuting all over again people who were either found not guilty, or who were convicted only of ordinary crimes, while being acquitted of hate-crimes (like the teenagers acquitted of hate crimes in the Shenandoah incident, and the California case of Joseph Silva and George Silva).

Such re-prosecutions can be an enormous waste of money, and grossly unfair to the people who are reprosecuted, driving them into bankruptcy to pay lawyers to represent them all over again when they have already been found innocent in state court after an expensive trial.  When the government re-prosecutes someone, it gains an enormous tactical advantage over the defendant from using the prior prosecution as a test-run, even if the defendant is innocent — making a guilty verdict possible even if the defendant is in fact innocent.

The bill also raises serious constitutional federalism issues under the Supreme Court’s Morrison decision.

Passage of the bill was aided by lousy reporting, in which some journalists, like Reuters, depicted the bill as simply a harmless measure to add sexual orientation to the list of protected characteristics covered by the federal hate-crimes law, ignoring its many other, far more important (and dangerous) changes to federal hate-crimes law.

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.

As law professor Gail Heriot notes, “Some have even called for federal prosecution of the Duke University lacrosse team members–despite strong evidence of their innocence.”  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 DNA evidence showed), 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.

The Obama administration has long supported the hate-crimes bill, which it used as a wedge issue in the 2008 election.

As law professors like Jonathan Turley and Eugene Volokh have noted, the Obama administration recently urged restrictions on hate speech at the United Nations, joining in calls to treat such speech, protected by the First Amendment under Supreme Court rulings, as a human-rights violation in violation of international human-rights treaties. In the U.S., college hate-speech codes have been used to discipline students for criticizing affirmative action, discussing the racial implications of the death penalty, and calling homosexuality immoral.  In Canada and Britain, hate speech laws have been used to punish religious criticism of Scientology and homosexuality.

Hate Crimes Bill Passes, Eroding Civil Liberties and Double Jeopardy Safeguards

by Hans Bader on October 23, 2009 · 1 comment

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

Yesterday, Congress approved a measure to dramatically expand the existing federal hate crimes law, by adding it to an unrelated defense appropriations bill.  The measure would expand current law to cover virtually all hate crimes already covered by state law (both by adding gender, sexual orientation, disability, and transgender characteristics to a law originally designed to protect racial minorities, and by getting rid of the requirement that a hate crime effect federally-protected activities to be prosecuted in federal rather than state court.)

The measure was opposed by the U.S. Commission on Civil Rights on double-jeopardy grounds.  As I previously explained at length, the bill’s sponsors seek to use it to reprosecute people in federal court who have already been found innocent of hate crimes in state court, taking advantage of the “dual sovereignty” loophole in constitutional protections against double jeopardy.  Civil libertarians like Nat Hentoff and Wendy Kaminer also object to the bill on double-jeopardy grounds.   Backers of the bill, like the Leadership Conference on Civil Rights and Commissioner Michael Yaki, supported the bill partly as a way of trying all over again people who were either found not guilty, or who were convicted only of ordinary crimes, while being acquitted of hate-crimes (like the teenagers acquitted of hate crimes in the Shenandoah incident, and the California case of Joseph Silva and George Silva).

Such re-prosecutions can be an enormous waste of money, and grossly unfair to the people who are reprosecuted, driving them into bankruptcy to pay lawyers to represent them all over again when they have already been found innocent in state court after an expensive trial.  When the government re-prosecutes someone, it gains an enormous tactical advantage over the defendant from using the prior prosecution as a test-run, even if the defendant is innocent — making a guilty verdict possible even if the defendant is in fact innocent.

The bill contains speech-related provisions designed to allow prosecution of people who are not violent and do not intend to cause hate crimes, but whose speech inadvertently incites a hate crime by some violent, bigoted nut.  For now, courts are likely to block such prosecutions on First Amendment grounds, under the Supreme Court’s Brandenburg decision banning prosecutions of people whose speech unintentionally incites violence or other illegal acts (and the federal appeals court ruling in White v. Lee faithfully applying that principle to speech that incites violations of federal civil-rights and anti-discrimination statutes).  But if the ideological composition of the Supreme Court changes substantially, it is conceivable (although far from certain) that that could change.  Although the provisions will probably prove unsuccessful in censoring speech, it speaks volumes about the mindset of the hate-crimes bill’s backers that they would even try.

The bill also raises serious constitutional federalism issues under the Supreme Court’s Morrison decision, as I explained earlier.

Passage of the bill was aided by lousy reporting, in which journalists, like Reuters, depicted the bill as simply a harmless measure to add sexual orientation to the list of protected characteristics covered by the federal hate-crimes law, ignoring its many other, far more important (and dangerous) changes to federal hate-crimes law.

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.

As law professor Gail Heriot notes, “Some have even called for federal prosecution of the Duke University lacrosse team members–despite strong evidence of their innocence.”  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 DNA evidence showed), 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.

The Obama administration supports the hate-crimes bill, which it used as a wedge issue in the 2008 election.

The Obama administration recently urged restrictions on hate speech and blasphemy at the United Nations, joining in calls by left-wing lawyers and conservative Islamic countries to treat such speech, protected by the First Amendment under Supreme Court rulings, as a human-rights violation.  Religious minorities have often been persecuted for “blasphemy” in Islamic countries for disagreeing with Islam, criticizing the prophet Mohammed, or interpreting Islam’s holy book, the Koran, differently than the majority of Muslims do.  In the U.S., college hate-speech codes have been used to discipline students for criticizing affirmative action, defending the death penalty against racism charges, and calling homosexuality immoral.  In Canada and Britain, hate speech laws have been used to punish religious criticism of Scientology and homosexuality.