Charleston shooting

The Feds Shouldn't Prosecute Dylann Roof

Redundant charges against the Charleston shooter highlight the unconstitutional absurdity of the federal hate crime statute.

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Dylann Roof, the man charged with murdering nine people at the Emanuel AME Church in Charleston, South Carolina, in June, faces execution or life imprisonment if he is convicted in state court. A federal indictment announced in July threatens him with the same penalties, although you can't kill a man more than once or lock him up for more than a lifetime.

What looks like a redundant prosecution is actually something worse. It is an unconstitutional attempt to federalize a crime that South Carolina's courts are perfectly capable of handling, for the sake of sending a message that the criminal law should not be used to send.

The New York Times reports that "Justice Department and F.B.I. officials have said the Charleston shooting was so horrific and racially motivated that the federal government must address it." Noting that "South Carolina does not have a hate crime law," the Times says the feds worry that "a murder case alone would leave the racial component of the crime unaddressed."

In other words, by charging Roof with murdering people "because of their actual and perceived race and color," the Justice Department condemns his benighted beliefs as well as his appalling actions. The Times notes that the evidence against Roof includes his "racist Internet manifesto" as well as his anti-black comments as he shot parishioners at the church.

Since Roof already faces the maximum penalty under state law, he can hardly receive extra punishment for his bigotry. But defendants in less serious cases can and do: An assault that might be punished by a year or two in prison under state law can trigger a sentence up to 10 years under the federal hate crime statute if the defendant has a history of writing or saying racist stuff.

In fact, the offender in such a case can be punished twice for the same crime, once under state law and again under federal law. And if he happens to be acquitted in state court, he can be tried again in federal court.

This sort of serial prosecution looks a lot like double jeopardy, which is prohibited by the Fifth Amendment. But according to the Supreme Court, it is merely "dual sovereignty": The same action is two crimes, one for each government that has jurisdiction.

You may wonder where Congress got the authority to federalize a crime based on the nasty opinions expressed by the person who committed it. The provision under which Roof was charged, which applies to cases where the victim was chosen because of his "actual or perceived race, color, religion, or national origin," is supposedly authorized by the 13th Amendment.

If you do not understand how the constitutional ban on slavery applies to someone who punches an African American or a Latino while shouting a racial epithet, or to someone who specializes in mugging Jews because he figures they have a lot of money, you are not alone. As the Cato Institute and Reason Foundation (which publishes this magazine) noted in a 2013 Supreme Court brief, the provision cited in Roof's federal indictment "does not prohibit slavery or involuntary servitude"; "nor is it a prophylactic measure intended to assist in preventing the return of slavery or involuntary servitude."

The constitutional rationale for another provision of the federal hate crime law, covering crimes in which the victims were selected because of their "gender, sexual orientation, gender identity, or disability," is even less plausible. All it takes to make a federal case out of such a crime is a weapon "that has traveled in interstate or foreign commerce."

The farcical justifications for the federal hate crime statute are especially troubling because there is no reason to think the offenders it covers would otherwise go unpunished. If the Charleston massacre is exactly the sort of crime the law was meant to address, that just shows how gratuitous the law is.

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6 responses to “The Feds Shouldn't Prosecute Dylann Roof

  1. Hate crimes statutes should be violations of the First Amendment: you’re imprisoning people for minority-held political views that are viewed by the majority as “hateful”.

    1. bas,

      Some lawyer should change his/her/its name to Adams and defend Roof in the spirit in which Adams defended the Brit troops who shot protesters/rioters in the celebrated re-revolutionary “Boston Massacre (http://www.ushistory.org/us/9e.asp).” Just as those troops were despised, so is Roof, and just as they merit equal justice under our laws, so does Roof. And just as I can be devout Catholic, and be thought of as hateful (as they so express) by various pro-abortion folks, Roof is supposed to have the right to hold beliefs in his brain that are hateful to one and all. His feelings, thoughts, and the printed and spoken words of hate should be protected expression. But we are teaching gobbledegook now in school, not rhetoric aimed at logically valid debate. More Charters! More homeschooling! Quickly!

  2. An assault that might be punished by a year or two in prison under state law can trigger a sentence up to 10 years under the federal hate crime statute if the defendant has a history of writing or saying racist stuff.

    Further evidence of the illogic of “putting them in prison” as punishment or “rehabilitation”. An aggressor owes the victim or victim’s representative, no other human.

    Ergo, if you assault, you should be beaten under the orders of the victim (after a guilty verdict). If you steal, you should repay. Then, if the victim decides to be merciful, no-one has any right to complain.

    Anything else almost certainly violates NAP. NAP is only fulfilled if “an eye for an eye” is practiced by the victim. No third party has any right to tell a confirmed victim that he may not extract precise repayment of the “debt” the aggressor has taken up.

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  4. Don’t the lawyers get paid by the charge? They would not want to give up those charges if they are going to lose money!……………(;-P

    It seems that they want to charge Roof with another hate crime, when the entire thing was a matter of hate (racism), and a crime! How in the world could a reasonable person not see that it is just charging him for the same crime (racist hate)? I guess the legal eagles have figured out how to make it not look like double jeopardy! I am sure the lawyers writing out laws know just how to do that!

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