Racism

Bigot Bonus

Under a new federal law, the wrong beliefs can trigger a second trial and extra prison time.

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The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, which President Obama plans to sign soon, is named after two men who were murdered in 1998. Shepard, a gay college student, was beaten to death in Wyoming. Byrd, a black hitchhiker, was dragged to death behind a pickup truck in Texas. Bigotry seemed to play a role in both crimes.           

Here is something else Matthew Shepard and James Byrd have in common: Their killers were arrested, tried, convicted, and sentenced to life in prison or death, all without the benefit of hate crime laws, state or federal. Hence it is very strange to slap their names onto a piece of legislation based on the premise that such crimes might go unpunished without a federal law aimed at bias-motivated violence.           

In more than a decade of lobbying for this law, its supporters have never shown that state officials are letting people get away with murder, or lesser crimes of violence, when the victims belong to historically oppressed groups. Instead they have presented the legislation as a litmus test of antipathy toward violent bigots and sympathy for their victims. Given this framing, it's surprising the law's opponents managed to resist it for so long, when all they had on their side was the Constitution and basic principles of justice.

As the Supreme Court has noted, the federal government has no general authority to fight crime. Yet this law covers any violent crime where the victim is selected "because of" his actual or perceived race, religion, national origin, gender, disability, sexual orientation, or gender identity, as long as the crime in any way involves or "affects" interstate commerce, even if the connection is limited to a weapon made in another state or country.

Like state laws that enhance penalties for crimes when they are motivated by bigotry, the federal law requires courts to examine defendants' beliefs. To prove that a defendant selected his victim based on one of the prohibited criteria, prosecutors inevitably will cite things he said at the time of the crime and other evidence of his hatred toward members of the victim's group.

If someone hits me in California with a baseball bat made in Kentucky, that is not a federal crime. But if he does exactly the same thing while calling me a "dirty kike," it is. No doubt the prosecutor also would deem it relevant that my attacker owned a dog-eared copy of Mein Kampf and belonged to a neo-Nazi group.

Consider the impact of federalizing this crime. In California the maximum sentence for assault with a deadly weapon is four years. The state's hate crime statute could extend that sentence by up to three years, for a total of seven. By contrast, the maximum sentence under the new federal law is 10 years. Hence my assailant could serve more time for his anti-Semitism than he does for his violence.

Imagine my attacker is acquitted in state court because the jury accepts a self-defense claim. Or suppose he is convicted and gets a one-year sentence. He can still be prosecuted in federal court.

The law allows a do-over if the Justice Department decides "the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence." The idea, as then-Attorney General Janet Reno explained when the law was first proposed, is to "give people the opportunity to have a forum in which justice can be done if it is not done in the state court."

Although such serial prosecutions are permitted under the doctrine of "dual sovereignty," they look an awful lot like double jeopardy, prohibited by the Fifth Amendment. House Speaker Nancy Pelosi (D-Calif.) nevertheless claims the federal hate crime law upholds "the ideals of our founding fathers," who evidently were big on punishing people for their beliefs, retrying defendants after they're acquitted, and letting Congress make a federal case out of anything that attracts its attention.

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

© Copyright 2009 by Creators Syndicate Inc. 

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  1. Awesome! Another thought crime to abuse!

  2. Justice isn’t blind. Sometimes she peeks.

  3. what if he hit you with a bat for being dyslexic?

    1. That is completely acceptable. Next?

    2. Trying again . . .

      I think you have that backwards.

  4. So when the cops refused to help me after I had been beaten up by a man shouting “fucking faggot,” it was only my imagination that led me to believe America has a problem with hate crime being excused by homophobic officials.

    1. I think it only counts if it is true. Rich white heterosexual males need no more protection than their status of gentry.

    2. If that happened, the problem is with the officials, not the existing law, and that problems would be better addressed under existing constitutional and civil rights law since the law needs to be upheld regardless of your status. The general libertarian stance is that government officials, being invested with the power of the state, need to be held to a higher standard than individuals out there in the community. If an official refuses to enforce the law because of his/her personal beliefs, that is a grave matter.

      Adding punishment to your assailant for being a homophobe wouldn’t do much to the cops who refused to help and wouldn’t address the problem. If you haven’t noticed, nothing in this bill would address your situation other than that it might (or might not) get the Feds involved against your assailant, but wouldn’t do anything about the local officials who ignored it in the first place.

    3. I don’t know your situation at all other than what you’ve posted here. To base anything on your anecdote we’d need to know more, like what the police exactly did, why they did it, etc. Maybe they made the determination that they couldn’t build a case, couldn’t find the culprit, or any other number of things that lead the police to refuse to act on a daily basis. Did they refuse to do anything because of your perceived sexual orientation, or was that a secondary issue? How do you know their motivation?

      In any event, what this law would do is try to divine the mind of your attacker and criminalize the motive. The speech you describe itself could be indicative of any number of things, including a jilted lover wanting to cause hurt. It would be entirely possible for a gay man to say that same thing while beating someone, in which case it would be a crime for the straight man to say it but not for the gay man to say it. Or what about the closeted gay man who carries out an attack because he both loves and hates gays? Would he get charged with half a crime?

      No matter which way you approach you, you still get beat up, the same words get said, and the physical result to you is the same.

      1. Indeed, how can we be sure that the assailant actually knew that he was attacking a gay man? Men in the heat of a fight blurt out all sorts of things, none of which are logical. I’ve heard men fighting other straight men refer to their opponents as “faggot”, “queer”, etc. even though they knew said opponent and knew he was straight.

    4. So, anybody who shouts a slur during a fight is guilty of a hate crime and should do Federal time? Consider, the following scenarios all consistent with your description. In all cases the attacker shouts a homophobic slur during the fight. Which are hate crimes?

      (1) A straight attacker attacks another person he believes to be straight. (2) A straight attacker attacks another person he believes to be gay. (3) A gay attacker attacks another person he believes to be straight. (4) A gay attacker attacks a another person he believes to be gay.

      Which is the hate crime and how can the real-world justice system make a determination with sufficient accuracy to justify sending an individual away for a decade? How many innocent people will do hard time because of some prejudice or political hysteria?

      I have actually witnessed (4) in which an abusive boyfriend laid into his partner while screaming anti-gay slurs. Should we presume that he wasn’t engaged in a hate crime just because he was gay himself or should his domestic battery have landed him 10 years in the federal pen solely because of the identity of victim and what he said?

      ? There is a big, big gulf between the concept of a hate crime laws and actually enforcing such laws justly in the real world. You need to stop and think about the practical issues involved. Are you personally so sure you’ve never said anything bigoted in the heat of the moment? Would you like a moments anger to land you or someone you care about in prison for ten years?

      1. Or how about two black men fighting, and one of them says the N-word in the course of the brawl. Is that a hate crime? Or will it be declined to be prosecuted because the person committing the thoughtcrime has sufficiently melanated skin to be excused from charges of racism?

    5. And you think the same homophobes that didn’t arrest, charge, gather evidence, and prosecute other homophobes would jump to do it if there was a thought crime law?

      Are you sure you’re gay?

      Most homosexuals I know aren’t morons.

  5. Obama wants me to say that anyone opposed to thought crime…err, I mean hate crime, legislation is a racists.

    Among other things.

    1. If Federal laws are to fight ‘racism’, and the libs have made it clear they consider disagreement to be ‘racism’, is it really paranoia to think they might put both of those together and use this law to go after political dissent?

  6. Will this hold up in the courts?

    Legal opinion please

  7. Hate Crimes Prevention Act

    An act of Congress will prevent crime?
    Do they think we are retards?

  8. Do they think we are retards?

    That’s hate speech. Off to the camps with you.

    1. Does this mean I can’t buy the Rams?

    2. yes

  9. An interesting facet of this bad law is that it reveals the contradictory and often hypocritical nature of the left in regards to crime and punishment.

    When it comes to deterring the ordinary crimes that savage the poor and the rest of us, leftists tell us that punishment in general, and more severe punishment specifically, does nothing to prevent crime or address the “root causes” of crime. Yet, when it comes to the thought crimes they see as serious, they immediately claim that the only response is to dispense with double-jeopordy and pile on the prison time.

    Clearly, leftists do believe that more severe punishments and the greater likelihood of punishment will deter criminal acts. This raises the question of why they oppose such methods for more prosaic crimes.

    1. Logic and consistency are teh Hate Crimes!

  10. the Federal interest in eradicating bias-motivated violence

    LOL. This is the same silly utopianism demonstrated by Bush’s crusade to eradicate terrorism.

  11. No doubt the prosecutor also would deem it relevant that my attacker owned a dog-eared copy of Mein Kampf and belonged to a neo-Nazi group.

  12. Off topic, but: Pingback? Reason, your redesign of Hit’n’Run continues to suck.

    1. Ya, I hate “pingbacks” too. Make ’em go ‘way.

      1. Seriously. No Pingbacks. Comment threads are for having a conversation about the article, not for getting randomly excerpted crap about what other articles are similar.

  13. Will this hold up in the courts?

    Legal opinion please

    IIRC, some hate-crime laws already have survived constitutional challenge. I don’t have time to check Volokh right now, but I know he’s discussed the issue on his blog.

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  15. At least they did not call it “Matt’s Law.”

    1. Only pre-teen girls get their own laws.

      1. That was both racist and homophobic. You’re in big trouble.

  16. IF there are going to be hate crimes, there also has to be love crimes. If you kill your wife because you love her so much you can’t bear to lose her, you should get a more lenient sentence. Or maybe you should get off scott free and reserve the more lenient sentence for those who had not particular feeling for those they killed.

  17. Remind me never to buy a pair of Ugg Boots.

  18. “If someone hits me in California with a baseball bat made in Kentucky, that is not a federal crime. But if he does exactly the same thing while calling me a “dirty kike,” it is. No doubt the prosecutor also would deem it relevant that my attacker owned a dog-eared copy of Mein Kampf and belonged to a neo-Nazi group”

    Those are the “easy” cases. What happens when the prosecutor wants to produce “evidence” that your attacker once posted a comment condemning Israel for not stopping settlements in the occupied territories, claiming that this constitutes “proof” of anti-semitism? Or in the case of an assault against women, “evidence” that the attacker recently purchased a Playboy Magazine is introduced as “proof” of hatred of women? And is criticism of Obama “evidence” of racial animus; seems I have heard that argument recently. You know darn well that once this door is opened, we will head straight for cases such as those I’ve suggested — yet further reason why laws like this are frightening.

  19. So basically if you are becoming irrational because you are in a fight and call the guy a dirty slur, it will be a hate crime, and your main sentence will be for being biased, not violent… Fuck the world.

  20. So when the cops refused to help me after I had been beaten up by a man shouting “fucking faggot,” it was only my imagination that led me to believe America has a problem with hate crime being excused by homophobic officials.

    And how exactly would penalty enhancements for hate crimes have made the cops less homophobic and more likely to help you?

    1. Actually, a constant complaint from a wide variety of crime victims, asaults, burglaries etc, is about the perceived indifference of the police.

      In their favor, it has to be said most cases the amount of evidence available to pursue any sort of resolution is usually scant.

      On the other hand it is also most certainly true that the rewards, in terms of promotions and political recognition, of solving such crimes is simply not worth the effort. people can be incentivized by base motives othe than homophobia, racism or other vice.

  21. Actually, a constant complaint from a wide variety of crime victims, asaults, burglaries etc, is about the perceived indifference of the police.

    The primary usefulness of the police with respect to crimes against property is to file an “official” report you can then turn in to your insurance company. They’re only slightly more helpful for crimes against persons.

    1. Exactly.

  22. It’s also an inappropriately named law.

    In the cases of both Matthew Shepard and James Byrd, the local authorities immediately and aggressively began an investigation and prosecutors vigorously pressed for the maximum penalty*.

    And it needs to be added that much of this zeal was motivated by the apparent motives of the perpetrators and a desire to send a message about those motives. There is already a standing practice of taking into account motives when setting sentences.

    *Indeed Matthew Shepard’s killers were only spared death due to pleas from the victims parents.

  23. In the cases of both Matthew Shepard and James Byrd, the local authorities immediately and aggressively began an investigation and prosecutors vigorously pressed for the maximum penalty*.

    I also fail to see what good this law would have done with respect to the James Byrd case. Two of the defendants were sentenced to death, with the remaining defendant given life without parole because he cooperated with the authorities. How do you enhance the death penalty? Give the schmuck two lethal injections instead of one?

  24. How do you enhance the death penalty?

    Make him watch The ED Show?

  25. I’m stating it here for the record: any future crime I might commit will be done out of love.

    1. And Miniluv (the Ministry of Love) will take appropriate notice of your intent in Room 101.

    2. And how about if you kill someone with kindness, where does that fit in?

  26. Black guy walks into a KKK meeting with an AK-47 and hoses the crowd,
    screaming, “Die, niggers!”

    Hate crime?

  27. Well, I guess if I’m going to commit a crime, I better make sure it is against somebody who is just like me.

    I though all crime was hate crime. You don’t attack someone because you like them or even if you are indifferent to them.

  28. even if you are indifferent to them.

    Actually, most career criminals are completely indifferent to their victims in that they don’t perceive them as human. They don’t hate their victims any more than they hate a shoe. The victims are merely means to an end.

  29. “Or in the case of an assault against women, “evidence” that the attacker recently purchased a Playboy Magazine is introduced as “proof” of hatred of women?”
    I thought that was evidence that I loved women….or at least loved to look at them.

  30. I’m of Irish ancestry and was raised Roman Catholic. Does that qualify as belonging to historically oppressed group.

    How is historically oppressed defined?
    How long mush a group be oppressed before they qualify?
    Is there a time limit?
    If your group hasn’t been oppressed in the last 60 days you no longer qualify?

  31. I thought that was evidence that I loved women….or at least loved to look at them.

    You silly, silly man. I refer you to the entire work of Andrea Dworkin and Catherine MacKinnon. Your objectification of women is proof that you are a rapist, in spirit if not deed.

  32. Presumably then, if I murder a man because I want to take his wallet or steal his shoes, it’s not as bad as if I murdered him because I hate his ethinicity, beliefs, or sexual orientation and I can expext a lighter sentence if I’m caught? Then if I really do want to kill him because I think he’s a dirty (insert whatever slur you like), then I’d better make sure to rob him as well just in case they catch me…

  33. It was a very nice idea! Just wanna say thank you for the information you have shared. Just continue writing this kind of post. I will be your loyal reader. Thanks again.

  34. “the ideals of our founding fathers,”

    This is why Her Royal Highness deserves more servants to help her with the trivial stuff. What she meant to say was ‘the living breathing ideals’ of her make-believe nation’s imaginary founding fathers.

    The ‘living breathing’ part lets the listener know the “ideals” in question were pulled directly from Her Majesty’s ass.

  35. Wow, thanks for the insightful post. I look forward to reading more from you.

  36. My only point is that if you take the Bible straight, as I’m sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane.

  37. Presumably then, if I murder a man because I want to take his wallet or steal his shoes, it’s not as bad as if I murdered him because I hate his ethinicity, beliefs, or sexual orientation and I can expext a lighter sentence if I’m caught? Then if I really do want to kill him because I think he’s a dirty (insert whatever slur you like), then I’d better make sure to rob him as well just in case they catch me…
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