Feds and South Carolina Both Want to Execute Dylann Roof

Do they plan to kill the Charleston shooter twice?



Yesterday the Justice Department further illustrated the unconstitutional absurdity of the federal hate crime statute by announcing that it will seek the death penalty for Dylann Roof, the man charged with murdering nine people at a church in Charleston, South Carolina, last June. Roof already faces the death penalty if he is convicted in his state murder trial, which is scheduled to begin in January. Do the feds think he should be executed twice?

The federal prosecution is worse than pointless. In the unlikely event that Roof is acquitted by a South Carolina jury, he can be tried again in federal court. That looks an awful lot like double jeopardy, except that the Supreme Court has arbitrarily decreed that serial prosecutions for the same conduct in state and federal courts do not violate the Fifth Amendment.

Roof's bigoted beliefs figured into the rationale for prosecuting him under federal law and the decision to seek the death penalty. He is charged with selecting his victims "because of" their race, and his racist statements before and during the mass shooting count as evidence of that motivation. Explaining their decision to ask for the death penalty rather than life imprisonment, prosecutors cited nine aggravating factors, including the fact that Roof "expressed hatred and contempt towards African-Americans, as well as other groups, and his animosity towards African-Americans played a role in the murders charged in the indictment."

The upshot is that Roof, because of the opinions he has expressed, is more likely to be convicted (since prosecutors can try him again if he's acquitted the first time) and more likely to be executed for his crimes (since if state jurors reject the death penalty federal jurors might still approve it). The Supreme Court says enhancing criminal penalties based on the defendant's bigoted motivation does not amount to punishing him for his beliefs. The Supreme Court is wong.

In addition to the double jeopardy and First Amendment issues, federal prosecutions like this one usurp the powers reserved to the states by the 10th Amendment. Murder is and always has been a state crime, and South Carolina is perfectly capable of prosecuting Roof for it. There is no need or valid constitutional rationale for federal involvement, the justification for which hinges on a reading of the 13th Amendment that could generously be described as implausible.

The federal prosecution of Dylann Roof is not about justice, which South Carolina is already pursuing. Last summer The New York Times reported 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." In other words, the DOJ is trampling on federalism, freedom of speech, and a basic principle of criminal justice in order to make a political statement.