Today, on a party-line vote, the House of Representatives approved the Local Law Enforcement Hate Crimes Prevention Act, a.k.a. the Matthew Shepard Act. The bill, which President Obama supports, would add 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. It also would remove a provision limiting such prosecutions to cases where the victim was participating in a "federally protected" activity such as education or voting. The new federal nexus requirement is so laughably accommodating that it might as well have been left out. A violent crime against a victim selected for one of the mentioned reasons can be federalized if it "occurs during the course of, or as the result of, the travel of the defendant or the victim…across a State line or national border"; if the defendant "uses a channel, facility, or instrumentality of interstate or foreign commerce"; if "the defendant employs a firearm, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce"; if the crime "interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct"; or if the crime "otherwise affects interstate or foreign commerce."
Aside from the usual problems with hate crime laws, which punish people for their ideas by making sentences more severe when the offender harbors politically disfavored antipathies, this bill federalizes another huge swath of crimes that ought to be handled under state law, creating myriad opportunities for double jeopardy by another name. The changes would make it much easier for federal prosecutors who are displeased by an acquittal in state court to try, try again, as they did in the Rodney King and Crown Heights riot cases. They simply have to argue that the crime was committed "because of" the victim's membership in one of the listed groups. As four members of the U.S. Civil Rights Commission point out in a recent letter opposing the bill (noted by Hans Bader), that description could apply to a wide range of ordinary crimes:
Rapists are seldom indifferent to the gender of their victims. They are virtually always chosen "because of" their gender. A robber might well steal only from women or the disabled because, in general, they are less able to defend themselves. Literally, they are chosen "because of" their gender or disability."
If all rape and many other crimes that do not rise to the level of a "hate crime" in the minds of ordinary Americans are covered by LLEHCPA, then prosecutors will have "two bites at the apple" for a very large number of crimes.
The text of the bill is here. I criticized the proposed expansion of federal hate crime law in a 1998 column. More on that subject here. I explored the more general problems with hate crime laws in a 1992 Reason article. I slammed the Rodney King and Crown Heights do-overs here and here. In 2004 William Anderson and Candice Jackson decried the federalization of crime.