Crime Fighters vs. the Constitution

Where's the authority for federal laws aimed at hate crimes and sex crimes?

Jacob Sullum | June 24, 2009

In a 1995 decision that overturned a federal ban on possessing guns near schools, the U.S. Supreme Court noted that "the Constitution creates a Federal Government of enumerated powers," which do not include a general authority to fight crime. Five years later, when it overturned a statutory provision that created a federal cause of action for victims of gender-motivated violence, the Court warned that congressional attempts to usurp the states' police power threatened to erase the "distinction between what is truly national and what is truly local."

Since then a chastened Congress has consistently rejected anti-crime legislation that lacks a firm constitutional basis. Just kidding. Two pieces of legislation in the news, both named after murder victims, show that posing as a crime fighter is still more popular on Capitol Hill than obeying the Constitution.

The Matthew Shepard Act, which the House approved in April and the Senate is considering this week, adds offenses committed "because of" a victim's actual or perceived gender, sexual orientation, gender identity, or disability to the list of hate crimes that can be prosecuted under federal law. As the U.S. Civil Rights Commission notes in a letter opposing the bill, that language could cover many crimes traditionally prosecuted under state law, potentially including rapes targeting women (selected because of their gender) and muggings of disabled people (selected because they are less able to resist).

The bill also would remove a condition limiting hate crime prosecutions to cases where the victim was participating in a federally protected activity such as education or voting. Instead it would cover crimes with just about any connection, no matter how tangential, to interstate commerce, which the Constitution authorizes the federal government to regulate. If the weapon used in an assault was manufactured outside the state where the assault occurred, for instance, that fact would be enough to assert federal jurisdiction.

The Matthew Shepard Act has the same basic problem as state hate crime laws, which punish people for their beliefs by enhancing the penalties for existing offenses when they are motivated by bigotry. The bill adds another layer of injustice by making it easier for federal prosecutors who are displeased by acquittals in state courts to try the defendants again, as they did in the cases stemming from the 1991 Crown Heights riot and the 1991 police beating of Rodney King.

The Supreme Court has said such repeated prosecutions do not violate the constitutional prohibition of double jeopardy because they involve two different governments. But the reality of these cases indicates otherwise: People who were acquitted in state court were tried again, based on the same underlying actions, and convicted. The fact that the Matthew Shepard Act reserves such treatment for defendants with unpopular opinions hardly mitigates the problem.

Unlike the legislators who wrote the Matthew Shepard Act, the authors of the Adam Walsh Child Protection and Safety Act did not even pretend they were exercising powers granted by the Constitution. This week the Supreme Court agreed to decide whether they were, focusing on a provision of the 2006 law that permits civil commitment of federal prisoners deemed to be "sexually dangerous."

Such preventive detention is bad enough when states do it, since it keeps people locked up indefinitely after they have completed their sentences, based not on crimes they have committed but on crimes they might commit. The federal version is even worse. As the U.S. Court of Appeals for the 4th Circuit noted in a January decision, the law gives the federal government "unprecedented authority over civil commitment—an area long controlled by the states."

The 4th Circuit concluded that the provision is not a valid exercise of the federal power to regulate interstate commerce, since it targets activity that is neither interstate nor commercial. Whatever one thinks of the law's goals, the court said, "policy justifications do not create congressional authority." That statement should be tattooed on every congressman's voting hand.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2009 by Creators Syndicate Inc.

Comments

Some Guy|6.24.09 @ 7:15AM|#

Hate crime laws only make sense if judges & juries have no discretion in sentencing. As it turns out they do have that power. Let them use it.

As far as preventative detention of sex criminals (REAL ones), I'm less concerned about that. We lock up other dangerous people with mental defects, so why not child molesters and rapists? The only obvious problem - as easily pointed out be the sex offender registries full of people who never committed sex crimes - is that it won't be limited to those it claims to be for.

Tomcat1066|6.24.09 @ 7:49AM|#

Hate crime smacks far to much of Thought Crime for my taste. Both a crimes of what's in your head, rather than crimes of what you actually do so neither is a good thing. There's no way you can tell me that what's in a person's mind should be made illegal. If so, that's a slippery slope toward making other things illegal, like thinking the government is corrupt or oppressive...even if they are.

As for the sex offenders, my primary issue is simple. If they're still a danger to society, why aren't they still in prison? What they're talking about is essentially life confinement for a crime that only warranted X number of years. Call it a life sentence or let them go home after they've done there time.

Rich|6.24.09 @ 7:51AM|#

So-called hate crime laws attempt to transform unknowable mindsets into harsher sentencing. They are in a sense the flip side of "showing remorse" to obtain leniency. Both are ridiculous miscarriages of good ol' blindfolded justice. If you can't do the time, don't do the crime.

|6.24.09 @ 7:58AM|#

Wow! Aint it the truth! Well done!

RT
www.anon-tools.tk

Tricky Prickears|6.24.09 @ 8:01AM|#

...posing as a crime fighter is still more popular on Capitol Hill than obeying the Constitution.

It always will be. "Feel good legislation" gets votes back home. Whether it's McCarthy era Red Scare, War on Drugs, War on Terror, War on child sex offenders, too many people in this country are far too eager to just hand over their Constitutional rights, in order to "feel safer".

Then add to that, the campaign money these Congressmen receive from private contractors that house federal inmates and you're looking at a win-win situation for legislators.

If there are states that are lax or incompetent in the prosecution or plea bargaining of hate crimes and sex crimes, let the voters of the state remedy the problem in local elections.

Gilbert Martin|6.24.09 @ 8:15AM|#

So the federal government is exceeding it's ennumerated powers.

In other breaking news, water is discovered to be wet.

Wicks Cherrycoke|6.24.09 @ 8:20AM|#

Since when did education become a "federally protected right?" Where in the Constitution did I miss that?

Xeones|6.24.09 @ 8:27AM|#

Since when did education become a "federally protected right?"

Haw haw! Wait til Wicks finds out that health care, a job, and the ability to buy a shoddily-built car from GM are all federally protected rights too!

|6.24.09 @ 8:30AM|#

The fact that the federal government is attempting to over-goosestep its authority with the Matthew Shepard Act is far too common of an occurrence to even be considered newsworthy. The fact that there is a body of evidence that suggests that the murder that inspired the act was not motivated by Matthew Shepard's sexual orientation puts the icing on the irony for Congressional fecklessness.

Rich|6.24.09 @ 8:34AM|#

Isn't "preventive detention" cruel and unusual? Seems a better case could be made for mandatory castration -- something like two strikes and two get stricken off.

T|6.24.09 @ 9:09AM|#

Wait, don't they usually try to hide the police power attempts under the commerce clause?

Lou Menning|6.24.09 @ 9:11AM|#

Brings to mind this satire of the whole "hate crimes" concept: http://optoons.blogspot.com/2009/05/perpetrators-of-viscious-hateful.html

Mad Max|6.24.09 @ 9:23AM|#

From the article:

'Whatever one thinks of the law's goals, the court said, "policy justifications do not create congressional authority." That statement should be tattooed on every congressman's voting hand.'

Every Congressman except one.

Kyle Jordan|6.24.09 @ 9:38AM|#

I think they'd start wearing gloves.

Xeones|6.24.09 @ 10:21AM|#

Congresscritters can afford tattoo removal.

|6.24.09 @ 10:46AM|#

That statement should be tattooed on every congressman's voting hand.'

I suggest their foreheads, instead. And on the inside of their eyelids.

Bob A|6.24.09 @ 11:15AM|#

"I regret to say that we of the FBI are powerless to act in cases of oral-genital intimacy, unless it has in some way obstructed interstate commerce."

-J. Edgar Hoover

|6.24.09 @ 11:17AM|#

If we are going to indefinately detain "sexually dangerous" individuals after their original sentence is up, what is to stop the Feds from indefinately detaining "criminally dangerous" individuals? Say a convict finishes his sentence for assault and battery, should we continue to detain him becasue he may commit the same crime again. Why is "sexually dangerous" any more of a threat to society then someone who is "violently dangerous"?

|6.24.09 @ 11:32AM|#

Yea, it's illegal, unconstitutional, and immoral to lock people up outside the criminal 'justice' system based on what the State thinks they might do. Unless they're labeled 'terrorists' first, at which point the conservatives reading this bail on us.

Michael Ejercito|6.24.09 @ 12:10PM|#

If we are going to indefinately detain "sexually dangerous" individuals after their original sentence is up, what is to stop the Feds from indefinately detaining "criminally dangerous" individuals? Say a convict finishes his sentence for assault and battery, should we continue to detain him becasue he may commit the same crime again. Why is "sexually dangerous" any more of a threat to society then someone who is "violently dangerous"?

As far as the U.S. Constitution is concerned, this is no different from the internment of Japanese-Americans in the 1940's.

There is a proposal by Senator Lautenberg to make it illegal for people on the terrorist watch list to buy guns. This begs the question. Why are people on the list allowed to roam free, instead of being interned in camps like Manzanar?

Yea, it's illegal, unconstitutional, and immoral to lock people up outside the criminal 'justice' system based on what the State thinks they might do.

You mean like the internment of Japanese-Americans?

How did the U.S. Supreme Court rule on that?

|6.24.09 @ 12:19PM|#

Isn't all violent crime a hate crime?

|6.24.09 @ 12:34PM|#

DW, and all violent crime "terrorizes" people (hence the support for all these get tough laws).

hammeredHead|6.24.09 @ 1:32PM|#

Soon they may lock up people drinking in bars because they might drive. Oh wait, Texas did that in 2005-2006.

|6.24.09 @ 2:48PM|#

Not only is the federal government usurping state authority but it is also violating double jeopardy and, even more appallingly, locking people up indefinitely for crimes that they might commit later on. By that logic, one could argue (for example) in favor of locking up all black male high school dropouts aged 15 - 40 based on crimes not yet committed,
justified by FBI statistics. That Obama supports this garbage shows that he is hardly much better than Bush on civil liberties.

ntolman|6.25.09 @ 2:00AM|#

Let me first say that I think things like gaybashing (as in physically attacking gay people just for being gay) need to be stopped but not by the Federal Government.

Politicians have this need to look like they are "doing something" so they come up with these laws. This goes the same for the War on Drugs. It's really easy to point to the huge 100 kilo coke bust and say "look at all the coke we took off the streets! Think of the children we've saved!" When they have done no such thing.

|6.25.09 @ 7:31AM|#

Hate Crime legislation is biggest current threats to our liberty. Hate Crimes give the government the right to try someone not for the crime but for what they can infer that you were thinking, while you were committing the crime. Does it really matter, that in the course of committing a murder, the killer was thinking, "I am killing you because you are ethnic group X."? The next logical step in this progression is legislation making unpopular thoughts and ideas, illegal. Because if people did not have the hateful thoughts and ideas they would not have committed the crime to begin with.

Maybe that sounds a bit, tin-foil-hat-conspiracy-nut-job, I dunno. But I have yet to see a government self-limit its expansion of power, EVER, in history.

Other Matt|6.25.09 @ 11:31AM|#

"Let me first say that I think things like gaybashing (as in physically attacking gay people just for being gay) need to be stopped but not by the Federal Government."

I think it would be more effectively stopped using 4 or 5 .40SW Federals to the cranium by the intended victim. Predators don't take kindly to prey fighting back effectively.

Michael Ejercito|6.25.09 @ 2:27PM|#

By that logic, one could argue (for example) in favor of locking up all black male high school dropouts aged 15 - 40 based on crimes not yet committed,

It is repugnant to American values on liberty, though on constitutional case law, such a thing would be perfectly valid.