Today a federal appeals court overturned the hate-crime convictions of 16 people who were charged in connection with a series of hair-cutting and beard-shaving attacks on Amish men and women in Ohio. Counterintuitively, the perpetrators were also Amish. But federal prosecutors argued that Bishop Samuel Mullet Sr. and his followers were motivated by doctrinal disagreements with their targets and therefore inflicted bodily injury "because of" their victims' religion, a felony under the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009. In today's ruling, the U.S. Court of Appeals for the 6th Circuit does not question that violence arising from an intrareligious dispute can qualify as a hate crime, but it concludes that the jury instructions in this case defined the motive element of the offense too loosely:
The district court instructed the jury that the motive element could be satisfied by showing that "a person's actual or perceived religion was a significant motivating factor for a [d]efendant's action" "even if he or she had other reasons for doing what he or she did as well." In taking issue with this instruction, the defendants argue that the phrase "because of" requires but-for causation—a showing that they would not have acted but for the victim's actual or perceived religious beliefs. The defendants have the better of the argument.
In reaching that conclusion, the 6th Circuit relies on common usage, its own decisions, and Supreme Court precedents, including a 2014 case involving a heroin dealer's culpability for a customer's death. It adds that a looser definition would be constitutionally problematic (citations omitted):
Any standard that requires less than but-for causality…treads uncomfortably close to the line separating constitutional regulation of conduct and unconstitutional regulation of beliefs. The government may punish "bias-inspired conduct" without offending the First Amendment because bigoted conduct "inflict[s] greater individual and societal harm." But punishment of a defendant's "abstract beliefs," no matter how "morally reprehensible" they may be, violates the First Amendment. Requiring a causal connection between a defendant's biased attitudes and his impermissible actions ensures that the criminal law targets conduct, not bigoted beliefs that have little connection to the crime.
To my mind, even the relatively narrow reading of the statute endorsed by the 6th Circuit "treads uncomfortably close to the line separating constitutional regulation of conduct and unconstitutional regulation of beliefs." The bottom line is that Mullet and his followers would not have been charged with these crimes but for their religious beliefs. They could have been (and in fact were) prosecuted in state court for assault, but the hate crime charges hinge on the doctrinal differences that supposedly motivated them. If they are retried, they can win acquittal by arguing that they were mainly motivated by family disputes or interpersonal friction, as opposed to religious beliefs. But they cannot win acquittal by arguing that their religious beliefs should not matter.
The appeals court mentions another constitutional issue it does not address (since the defective jury instructions were enough to invalidate the convictions): "whether the federal hate-crime statute exceeds Congress's Commerce Clause powers as applied to the facts of this case." That is a reference to U.S. Attorney Steven M. Dettelbach's argument for making a federal case out of these seemingly local crimes. Among other things, that argument hinged on the provenance of the electric hair trimmers, horse shears, and disposable camera used by the defendants. Since these instruments of crime originated outside of Ohio, Dettelbach reasoned, the offenses implicated interstate commerce. In case that was not enough, he also mentioned the defendants' use of a highway and the U.S. Postal Service.
If arguments as frivolous as these can establish an "interstate nexus," the Justice Department has the power to transform any act of violence into a federal hate crime by arguing that the perpetrator is a bigot or even, as in this case, that he disagreed with his victim about religious matters. With that power comes the ability to punish people more severely than state law allows, to impose extra punishment on people already convicted and sentenced under state law, and even to retry people who are acquitted in state court. And that power is to be exercised by federal prosecutors with a strong interest in making statements and advancing their political careers, so you know it will be used with the utmost caution.
[Thanks to John K. Ross for the tip.]