Charleston shooting

What's the Point of Charging Dylann Roof With Hate Crimes?

A federal prosecution would condemn his racism as well as his violence-one reason it's a bad idea.

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Citing unnamed "federal law enforcement officials," The New York Times reports that the Justice Department probably will file federal hate crime charges against Dylann Roof in connection with last week's massacre at the Emanuel AME Church in Charleston. Since Roof already faces nine murder charges in state court, where he will be subject to the death penalty if convicted, an additional federal prosecution seems gratuitous. It does not even offer the prospect of a more severe punishment. To the contrary, the maximum penalty Roof would face under federal law is life in prison, while there is a distinct possibility that South Carolina will execute him.

The Times concedes that a conviction in state court "would make federal action largely symbolic." Still, federal prosecutors are eager to pursue the case, because what's the point of having a federal hate crime law if you don't use it to prosecute someone like Dylann Roof? "This directly fits the hate crime statute," one of those unidentified law enforcement officials tells the Times. "This is exactly what it was created for."

Was the hate crime statute really created to allow redundant, "largely symbolic" prosecutions of people who have already been sentenced to life in prison or death? Not quite. It has more practical functions as well. For instance, it allows the Justice Department to prosecute someone after he is acquitted in state court. Under the Supreme Court's "dual sovereignty" doctrine, that does not count as double jeopardy. The hate crime law also allows the Justice Department to prosecute someone who has been convicted in state court, meaning he can be punished twice for the same crime. And even if there are no state charges because the feds swoop in and take over the case, the defendant is apt to face a heavier penalty than he would under state law—with the notable exception of murder cases, because you can't lock someone up longer than the rest of his life or kill him more than once.

In short, the hate crime statute is a handy tool for grandstanding prosecutors, letting them federalize any violent crime they claim was motivated by bigotry—even when the bigotry pits members of the same religious sect against each other. Officially the law does not punish people for their beliefs, which obviously would be a grave violation of the First Amendment. Rather it punishes people for choosing their victims "because of" their actual or perceived race, religion, sexual orientation, etc. But in practice, the law punishes people for their beliefs (by authorizing heavier penalties and serial prosecutions), because the opinions defendants have expressed about certain groups count as evidence that they deliberately selected members of those groups as victims. In this case, the Times reports, "analysts at the Federal Bureau of Investigation have concluded 'with a high degree of certainty' that Mr. Roof posted a racist manifesto online, which could be crucial to a hate crime prosecution."

Now imagine that instead of murdering nine people, Roof had merely assaulted them, so that prosecuting him under federal law instead of (or in addition to!) state law would lengthen his prison sentence. Let us also imagine that he made no racist comments while committing his crimes (although those comments in themselves also are protected by the First Amendment). In those circumstances, if Roof had never posted that "crucial" racist manifesto, he might never have been charged with a hate crime, let alone convicted, which means his punishment would be lighter. That looks an awful lot like punishing someone for the opinions he expresses, although the Supreme Court does not see it that way.

Returning to the actual facts of the case, what is the "symbolic" value of a federal prosecution on top of a state prosecution? "South Carolina does not have a hate crimes law," says the Times, "and federal investigators believe that a murder case alone would leave the racial component of the crime unaddressed." It's not enough, in other words, for the government to say Dylann Roof was wrong to murder nine innocent people—so wrong that his own life may be forfeit. The government also must say he was wrong to believe the things he did about black people. So if you think ideological policing is a proper role for government, you should welcome a federal prosecution of Roof. But if you think the criminal law should deal with defendants' right-violating actions rather than their reprehensible beliefs, you should be satisfied with the justice Roof gets in South Carolina's courts.