Matthew Shepard

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.

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.

Congressional Conference Committee Attempts to Turn Hate Crimes Law Into a Speech Code

by Hans Bader on October 14, 2009

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

Hate crimes are irrational, and what sets them off is often unpredictable. The hate-criminal whose sentence was upheld in Wisconsin v. Mitchell by a unanimous Supreme Court attacked a young white boy because of the outrage he felt after watching the movie Mississippi Burning, which depicted racism against black people in the Deep South. To him, two wrongs made a right.

If the victim had attempted to sue the makers of Mississippi Burning for inciting the hate-crime, the lawsuit would have been dismissed under the Supreme Court’s rulings in Brandenburg v. Ohio (1969) and Hess v. Indiana (1973), which say that the First Amendment protects speakers from being held liable for inciting a crime unless they intended to incite the crime, and to cause it imminently. This is the so-called Brandenburg test, and appeals courts have consistently applied it to all but one context (workplace discriminatory harassment claims under the federal civil rights laws).

A conference committee reconciling House and Senate versions of the federal hate-crimes bill recently decided to reject the Brandenburg test, however, hoping to snare people who do not intend to incite a hate crime in hate-crimes prosecutions. Both the House and Senate had earlier passed versions of the federal hate crimes bill that included language intended to limit, rather than expand, its reach over speech. The conference committee turned this language inside out, converting the free-speech language into anti-speech language. It inserted new language that made it clear that the absence of any intent to incite a crime should not necessarily protect the speaker from punishment if the government can show a “compelling interest” in prohibiting the speech that cannot be achieved through less “restrictive” means. A speaker can now be convicted even if his “exercise of religion, speech, expression, or association was not intended to plan or prepare for an act of physical violence or incite an imminent act of physical violence against another.” (This changed version then passed the House as an amendment to a defense appropriations bill, and it is now expected to pass the Senate in a few days.)

The purpose of the conference committee’s change appears to be to allow the government to prosecute people for otherwise protected speech, under the theory that it is “incidentally swept up” within a ban on discriminatory conduct — a rule uniquely applied to workplace discrimination law. In sexual harassment cases, employers get held liable for allowing employees to read things that incite them to harass fellow employees, even though such liability would not be possible under Brandenburg, which requires a closer link between speech and the incited action. (See Robinson v. Jacksonville Shipyards (1991) (trial judge ruled that employer was partly liable for letting employees read porn, which made them view female employees as sex objects, and thus resulted in sexual harassment).) The argument is that such speech is not banned for its own sake, but rather is “incidentally swept up” in a larger ban on discrimination, an “incidentalness” that somehow is supposed to make the ban on speech less objectionable (legal commentators have long ridiculed this reasoning, but the courts sometimes accept it in the workplace). (See R.A.V. v. St. Paul (1992) (Supreme Court said in dictum that race-based fighting words could be “incidentally swept up” within a ban on racial and sexual harassment in the workplace).)

Courts have by and large refused to restrict speech on this basis in society as a whole, outside the workplace. In White v. Lee, 227 F.3d 1214 (9th Cir. 2000), a federal appeals court held that the speech-protective Brandenburg test — not the speech-hostile standards of workplace discrimination law — applied to investigations under the Fair Housing Act, meaning that public speech against housing projects for minority groups like recovering drug users and the mentally ill could not be “incidentally swept up” within a statutory ban on discriminatory acts. Such speech remained protected, the appeals court unanimously ruled, even if it led to municipal action against such housing projects, as long as it did not intentionally cause imminent attacks on minority group members. The court rejected the argument that the speech lost its First Amendment protection because it was “discriminatory” in its purpose and effect. By contrast, in Presbytery v. Florio, federal district judge William Bassler suggested that anti-gay handbills could be restricted under New Jersey’s gay-rights law based on its “secondary effect” of causing discrimination against gay people, regardless of the Supreme Court’s Brandenburg ruling.

The conference committee’s changes to the hate-crimes bill appear to be intended to nudge courts interpreting the hate crimes law towards a more speech-hostile “secondary effects” interpretation, akin to Judge Bassler’s interpretation of the gay-rights provisions in the New Jersey Law Against Discrimination.

Courts may well decline this invitation to regulate speech so broadly, however. Under the canon of constitutional doubts, courts are supposed to construe statutes narrowly to avoid potential constitutional problems. Criminal statutes like hate-crimes laws have to be more precise than a purely civil enactment like a workplace discriminatory harassment law. Interpreting the hate-crimes statute as not requiring that speech “imminently” and intentionally incite a hate crime for a conviction would render the hate-crimes law unconstitutionally vague, meaning that courts would generally interpret the law as requiring intentional, imminent incitement, under the canon of constitutional doubts. On the other hand, a court might refuse to do that based on the argument that it cannot rewrite the explicit language of the hate-crimes law inserted by the Conference Committee, which expressly assumes that speech can be banned even if it does not intentionally incite a hate crime. That would present a serious constitutional problem.

The language of the hate-crimes bill itself requires a violent crime to have occurred for a prosecution. However, another federal statute, the federal aiding and abetting statute, 18 U.S.C. 2, holds people liable for a federal crime even if they did not physically perform it, as long as they “induce,” counsel, aid, or abet it: “Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” The conference committee appears to be trying to get courts to interpret those words, such as “induces,” broadly at the expense of free speech, by preventing courts from construing those words narrowly to comply with the Supreme Court’s Brandenburg test.

In the long run, as the political climate shifts, and courts begin watering down the Brandenburg test even outside the workplace, such language could open the door to prosecutions over speech that offends a prosecutor, if it allegedly had some influence on a hate criminal. In Canada, hate-crimes laws were on the books for decades before they began to be used in earnest against publishers for peacefully dissenting against politically correct orthodoxies or offending radical Islamists.

Moreover, even if the attempt to convert the hate-crimes law into a speech code or hate-speech law fails, it still says volumes about the mind-set of the bill’s backers, who want to take a law seemingly aimed at violent hate crimes, and use it as a backdoor way of censoring speech, contrary to the wishes of many of their colleagues. Members of the public should ask the members of the conference committee, like Senator James Webb (D-VA), why they substituted this harmful language for the harmless language in the previous House and Senate versions, which were designed to protect against censorship, rather than cause it.

The hate crimes bill raises other problems as well. While the original version of the hate-crimes bill did not raise free-speech problems (contrary to the claims of the Religious Right, which also focused obsessively on the inclusion of sexual orientation in the bill), it did, sadly, seek to take advantage of a loophole in constitutional protections against double jeopardy (as I noted here and here), and it also did raise serious constitutional federalism issues. Those problems are equally present in the version of the hate-crimes bill that is now slated to be enacted by Congress.

The Obama’s Administration’s Strange Double Standards on Hate Crimes, Terrorism, and Health Care: Soft on the Guilty, Cruel to the Innocent, Unfair to Taxpayers

by Hans Bader on July 30, 2009 · 3 comments

in Healthcare, International, Legal, Personal Liberty, Politics as Usual, Sanctimony

When black panthers were caught on videotape menacing white voters in Philadelphia, using nightsticks and racial epithets to drive them away from the polls, Obama political appointees, including Assistant Attorney General Tom Perelli, intervened to dismiss the lawsuit that had been won against them by career Justice Department lawyers — dismissing the case after it had already been won! The Obama political appointees insisted that the Justice Department should throw out its victory by not permitting a default judgment against two of the defendants even after the court clerk had already entered a default, claiming lack of evidence — even though the evidence of voter intimidation was captured on videotape! (The Obama appointees did allow the court to enter a toothless injunction against the third of the three defendants, which did nothing more than instruct him not to engage in such criminal acts again. But the defendants have paid no penalty for their crimes).

While bending over backwards to protect black hate-criminals who menaced voters in violation of the Voting Rights Act, the Administration has insisted that others found innocent of hate crimes in state court should be prosecuted all over again in federal court, relying on a loophole in Constitutional protections against double jeopardy. The recently passed federal hate-crimes bill, which Obama has pledged to sign, broadens the federal hate crimes law to the point where it punishes the same conduct already prohibited by state criminal laws and hate-crimes laws, allowing federal prosecutors to bring charges all over again after a jury has found that the defendant is not guilty of hate crimes.

As law professor Gail Heriot, a member of the U.S. Commission on Civil Rights, notes in the Philadelphia Inquirer, advocates of the federal hate crimes law have insisted that even in state cases where the evidence of a hate crime was very weak, leading to acquittals, federal reprosecution is warranted. For example, “Some have even called for federal prosecution of the Duke University lacrosse team members–despite strong evidence of their innocence.” Amazingly, even though DNA evidence proved the Duke Lacrosse players did not commit any rape (much less the racially-motivated rape they were accused of), and the North Carolina attorney general has admitted that they were innocent, there are still those who wish they had been prosecuted in federal court.

The U.S. Commission on Civil Rights voted 6-to-2 to oppose the federal hate-crimes bill. The Commission called the bill a “menace to civil liberties” because “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.” Thus, it will erode protections against double jeopardy.

But Congress chose to heed instead the 2 dissenting Commissioners, such as Michael Yaki, who has argued that the bill was necessary to allow people found not guilty of a hate crime in state court to be reprosecuted all over again in federal court. In his July 6 San Francisco Chronicle website commentary “Why We Need the Matthew Shepard Hate Crimes Bill,” Yaki points to the example of Joseph Silva and George Silva, who were found guilty of a crime in California state court, but not guilty of committing it for racial reasons, as an example of people who need to be reprosecuted for hate crimes in federal court. In fact, the Silvas are already being reprosecuted by the Obama Justice Department in federal court under the existing, narrow federal hate-crimes law, which only reaches the minority of hate crimes that affect federally-protected activities. The new hate-crimes law eliminates the longstanding requirement that hate crimes affect federally protected activities before federal prosecutors have jurisdiction to reprosecute them, making most state hate-crimes federal hate-crimes as well. (The Obama Justice Department “strenuously resisted efforts to tighten the bill’s language” to eliminate unjustified prosecutions).

A desire to get around constitutional double-jeopardy protections was also voiced by many backers of the bill, like the Leadership Conference on Civil Rights and MALDEF, which pointed to a state jury’s acquittal of Pennsylvania teenagers accused of a hate crime against an illegal alien as a reason for passing the federal hate-crimes bill.

While seeking to erode the constitutional rights of American citizens, the Obama Administration has given foreign terrorists rights that they are not entitled to under the Constitution, such as giving enemy combatants captured in Afghanistan Miranda warnings even though that is not legally required. Terrorists captured overseas by U.S. troops are not entitled by the U.S. Constitution to Miranda warnings. Nor are Miranda warnings required by Afghan law, international law, or treaties like the International Covenant on Civil and Political Rights.

Even the liberal Washington Post, which has not endorsed a Republican for President since 1952, has criticized Obama’s foreign policy, admitting that Obama has shown “willful disregard of political oppression” by left-wing dictators. Meanwhile, he has attacked friendly governments in places like Honduras, the Wall Street Journal notes. All too often, Obama has behaved like a friend to our enemies, and an enemy to our friends.

Many supporters of the federal 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.

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 defendants in state court will frequently trigger demands for federal prosecution.”

Obama is also guilty of double standards in health-care. He’s trying to push through an ill-conceived health-care overhaul at home which will give preferential treatment to illegal aliens by qualifying them for federal health-care coverage, while exempting them from proposed taxes that would apply only to citizens.

One of Obama’s own advisers says his health-care plan will harm people with insurance while raising their taxes. CNN says Obamacare will take away 5 freedoms. It will also destroy many affordable health-care plans while breaking Obama’s campaign promises.

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.

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.”