Taking Stock of the Matthew Shepard & James Byrd, Jr. Hate Crimes Prevention Act and Other Aspects of the Federal Approach to Hate Crimes

The U.S. Commission on Civil Rights will conduct a hearing on Friday.

|The Volokh Conspiracy |

The U.S. Commission on Civil Rights is holding a hearing on hate crimes on Friday. (And yes, of course, your input is desired. More info here.)

I opposed the passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act back in 2009. I wrote about some of the reasons in a short essay entitled Lights! Camera! Legislation!: Congress Set to Adopt Hate Crimes Bill That May Put Double Jeopardy Protections in Jeopardy before it passed. Here's part of the abstract to that article:

School children are taught that the Double Jeopardy Clause of the Constitution guarantees that no person shall "be subject for the same offense to be twice put in jeopardy of life of limb." They are seldom taught, however, about the dual sovereignty rule, which holds that the Double Jeopardy Clause does not apply when separate sovereign governments prosecute the same defendant. A state cannot oust the federal government from jurisdiction by prosecuting first; similarly the federal government cannot oust the state. This is true even in the event of an acquittal.

Such a rule may (or may not) be tolerable when the number of federal crimes and hence of potential federal prosecutions is small. But when large numbers of crimes are potentially federal crimes, it quickly becomes a "two bites at the apple" rule.

What does this mean for pending hate crimes legislation? The legislation currently pending in Congress this year (2009) defines hate crimes extremely broadly. It is enough that a crime occur "because of" the race, sex, disability, etc. of the victim (or of some other person). But consider: Rapists are seldom indifferent to the sex of their victims. Literally, they are almost always chosen "because of" their sex. A thief might well steal only from the disabled because, in general, the disabled are less able to defend themselves. Again, literally they are selected "because of" their disability. Is it a good idea to have a statute that makes so many traditional state crimes federal crimes also? Are the efforts in the bill to prevent the double jeopardy problem from exploding good enough? Note that "hate crimes" are frequently the most politically sensitive crimes—i.e. crimes where double jeopardy protections are most important.

Well, I lost. The legislation passed anyway. So here's what I hope to learn more about on Friday: Just how has the statute been implemented? I understand there have been prosecutions that I would find troubling—where it is a real stretch to suggest that the defendant was motivated by hatred of a group. When a person shouts group-based epithets at someone who has made him angry for independent reasons that obviously shouldn't be enough for a hate crime prosecution (even given the Act's broad language).

As for double prosecutions, there was a lot of pressure to prosecute George Zimmerman in the Trayvon Martin case after he was acquitted. But fortunately, it was resisted, since the evidence that Zimmerman acted in self defense was pretty strong. Has there been pressure to bring other post-acquittal prosecutions? Have there been actual post-acquittal prosecutions? Under the new statute, I know there have been parallel prosecutions in both state and federal courts. This technique tends to put more pressure on defendants to plea bargain, since it's harder to get two acquittals. How does the federal government justify these parallel prosecutions?

The hearing is expected to take all day.

I hope to blog later about a Constitutional challenge to part of the Act that I'm working on in my capacity as a law professor. The hearing on Friday will mostly be on non-Constitutional aspects of the issue (including how the federal government generates hate crimes statistics).

NEXT: The Market in Dead People

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  1. If there were still widespread lynchings, or widespread hate crimes of any sort, I could MAYBE understand the purpose of hate crimes. But hate crimes are the rarest of all crimes. Violent bias crimes are basically as rare as previously deported illegal immigrants murdering somebody. Illogical fears pushed by politicians who need narratives to run on.

    This notion that there is systemic violence based on any category, be it gender, race, religion, or sexuality, in this country is simply nonsense. The fear and hysteria is far more dangerous for peoples’ mental health than the actual threat hate crimes pose.

    1. There hasn’t been an actual lynching in, what, 40 years? Yet every time a black man hangs himself in the South there’s some story on CNN about it being a possible lynching. Never mind the fact that tens of thousands of men kill themselves every year. It’s the lynching you should be scared of.

      1. Violence against gays is extremely rare. I have friends who live in constant fear of being attacked for being gay (not to mention the Pence electrocution camp fears, which I am still amazed are actual fears) but it’s statistically irrational. There is no widespread violence against gays in this country. But pointing this out makes me a traitor, and they say “but Matthew Sheppard!” and maybe some other story. At the end of the day, there are 330,000,000 people in this country, and America is more tolerant than basically anywhere else on Earth that isn’t 98% white and culturally homogeneous, where tolerance isn’t even needed.

        1. But pointing this out makes me a traitor, and they say “but Matthew Sheppard!” and maybe some other story.

          That’s when you respond with “What does a drug deal gone bad have to do with this?”

      2. There hasn’t been an actual lynching in, what, 40 years?

        What do you think the murder of James Byrd was?

        1. Murder by dragging him by his ankles behind a pickup truck for three miles until he hit a culvert and his head and arm were severed. Brutal, but not what I’d call a lynching.

          1. Some folks might consider this view a case of placing form over substance.

    2. This notion that there is systemic violence based on any category, be it gender, race, religion, or sexuality

      Crime statistics tell us otherwise. But since you are throwing anecdotal evidence around – my gay asian friends suffer more verbal abuse on any given day than I have personally experienced in my lifetime (I’m gay but white). Racism and bigotry exist in this country and many times it leads to violence.

      But I will concede one point – its never been safer to live in this country. But that doesn’t mean many people don’t live with justifiable fear of violence. It just won’t come from undocumented immigrants but other Americans.

      1. How do people know they are gay? Sorry this sounds like a bunch of BS.

      2. Statistics don’t actually tell us otherwise. Correlation, causation, etc.

        1. Well, they might, depending on what they are.

          It’s far too simplistic to say correlation is not causation.

        2. That cuts as easily to the OP’s ‘This notion that there is systemic violence based on any category, be it gender, race, religion, or sexuality, in this country is simply nonsense.’

    3. For any sort of lynching, why doesn’t standard murder cover the crime? What more can be done than life in prison or the death penalty?

      1. Am I the only one who thinks there is a right to Freedom of Conscience somewhere in those auras and penumbras of the Ninth Amendment, if not of the First?

        It’s one thing to punish the Bad Act, but piling on extra punishment because of the perpetrator’s motives seems like punishing his having the ‘wrong’ opinions. Is that constitutional?

        1. “Freedom of conscience” in effect has been recognized as protected but “motives” is a basic thing in law, isn’t it? Certain crimes turn on motive.

          1. Motive is used to show intent, which is just one element of a crime, at least at Common Law. “Mens rea”. Intent is the difference between “murder” on the one hand, and “reckless” or “negligent” homicide on the other, but intent is just the state of mind that the accused intended the result, the Bad Act. In hate crimes, the accused person’s opinions are punished above and beyond his intention to commit the Bad Act.

      2. Standard murder is a state crime.

        This would be a federal crime, with a jurisdictional nexus via the Commerce clause.

        1. It’s just absurd that anyone can seriously argue that the commerce clause provides a legitimate federal jurisdictional nexus for hate crimes.

          The commerce clause has become utterly meaningless because it has been stretched to the point it can cover anything imaginable.

          1. Found a page on USDOJ website entitled “The Matthew Shepard And James Byrd, Jr., Hate Crimes Prevention Act Of 2009” and the Commerce Clause nexus arise when there is a specific commercial nexus. It doesn’t apply in respect to any hate crime. It rests partially on the 13th Amendment. See as well US v. Hatch, 722 F. 3d 1193 – Court of Appeals, 10th Circuit 2013 (opinion by Judge TYMKOVICH).

            1. Ah, yes, the infamous “badges and incidents of slavery”, whereby the 13th amendment is held to authorize not just outlawing slavery, but anything that kinda sorta looks like slavery if you squint right.

              1. “Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

                Section 2. Congress shall have power to enforce this article by appropriate legislation.”

                Yes, the second section gives Congress broad power to define the first section, including in ways that “kinda sorta looks” [translation: “I don’t really think so”] — at least in your more conservative view — as if it is a badge of slavery. The breadth of this power, going beyond merely banning slavery, is one reason why it was opposed by some at the time.

                Violence was a basic means to advance badges of slavery historically, a means to threaten certain groups for violating their assumed place.

  2. It seems your main issue (at least in this post) is not hate crimes but federalizing what should be state crimes. The two are not the same. (The Supreme Court upheld a hate crimes law in Wisconsin v Mitchell. As its name suggests, that was a criminal case brought under Wisconsin state law.)

  3. Two of the Byrd murderers got the death penalty, one got life.

    A federal [or Texas] “hate crime” law would accomplish what again?

    The statute is mere virtue signaling.

    1. Are there any federal laws you don’t think are virtue signaling?

      1. Plenty. This law, like all “hate crime” laws, are useless at best.

      2. “Are there any federal laws you don’t think are virtue signaling?”

        Most of the ones that the states don’t already execute you for violating?

        1. You know that the Feds don’t usually come in unless they feel the State has screwed it up. Which you and I know is a thing that happens.

          1. Sure, like when a state “screws up” by bringing a federal officer up on state charges, so they move the case to federal court and then move to have it dismissed.

            I believe there was a line in the Declaration of Independence about King James doing exactly that.

            The problem with this “screwed it up” argument, is that it assumes that if you don’t get a conviction, it was a screw up. Rather than a bad case.

    2. In some other case, it is not a given the same thing would occur.

      Virtue signaling is something many laws do. Wikipedia (with links) summarizes as well:

      The bill also:

      Removes, in the case of hate crimes related to the race, color, religion, or national origin of the victim, the prerequisite that the victim be engaging in a federally protected activity, like voting or going to school;
      Gives federal authorities greater ability to engage in hate crimes investigations that local authorities choose not to pursue;
      Provides $5 million per year in funding for fiscal years 2010 through 2012 to help state and local agencies pay for investigating and prosecuting hate crimes;
      Requires the Federal Bureau of Investigation (FBI) to track statistics on hate crimes based on gender and gender identity (statistics for the other groups were already tracked).

      1. “In some other case, it is not a given the same thing would occur.”

        Then they probably should have named the law after one of those other cases.

        1. Why?

          First, the law doesn’t merely deal with that one thing. I listed the various aspects of the law.

          Second, the law might deal with a similar crime where the state/local government for whatever reason wrongly (arguably) did not prosecute. A “Matthew Shepard” type crime.

          1. Because its stupid to use cases where the states did the right thing to justify a federal law predicated on a state not doing the right thing.

  4. We have had “hate crime” classifications–i.e., enhanced penalties based on the identity of the victim–for a long time.
    Children, cops, teachers, senior citizens, and, I believe, Presidents (to a degree), are examples of groups assault on whom carries stiffer penalties.
    The question is whether to expand this category to include race, sexual orientation/identity, etc.

    1. Which ship sailed in the 1960s, didn’t it?

      1. What the 1960s showed (if it wasn’t clear before) is that all sorts of precedents can be overturned.

    2. “enhanced penalties based on the identity of the victim”

      That is not what a hate crime is. Hate crime is a crime motivated by certain characteristics, such as race, religion, etc. Anyone can be the victim of a hate crime. The Supreme Court case that upheld the Constitutionality of hate crimes, Wisconsin v. Mitchell, involved a white victim assault by an African-American mob.

      1. So a hate crime is the only crime in the history of Anglo American jurisprudence which has motive as an element?
        Sounds like a steep hill for a prosecutor.

  5. “… there was a lot of pressure to prosecute George Zimmerman in the Trayvon Martin case after he was acquitted.”

    I have read the 284 page prosecutor’s document dump from the discovery phase of the Zimmerman trial.

    There are several FBI 302 interviews related to the DoJ hate crimes investigation of Zimmerman. Before the self-defense trial, there was a lot of pressure to prosecute George Zimmerman for federal hate crime before he was tried and acquitted by the state.

    They failed to find any proof he had expressed personal animus toward any minority group. The 302 of the ex-girlfriend who had a restraining order against him shows he had never said a bad word against blacks, whites, or hispanics, and he played basketball and worked with different ethnic groups.

    FD-302 is interview related to information that may become testimony at trial, and they are notoriously biased in favor of the prosecution theory of a DoJ case. They were investigating before the state trial.

  6. The real issue here, is that, prior to the abandonment of enumerated powers doctrine, the dual sovereign issue just couldn’t come up for most crimes, because the federal government hadn’t been granted general police authority. If an act was subject to federal jurisdiction, there wouldn’t be any state jurisdiction, and visa versa.

    There really isn’t any constitutional basis for federal hate crime laws, outside of the District of Columbia and some military bases, where the federal government rules as though it were a state. But this is a point that has been losing ground in the legal community for decades. Its reached the point where there’s practically no topic that Congress isn’t assumed to have the authority to legislate on, in the absence of an affirmative prohibition on legislation.

    And even such prohibitions are typically interpreted as just requiring Congress to have a good reason for exercising the prohibited power.

    1. Do you think dual sovereignty comes up for most crimes? Because it’s still quite rare.

      I’m skeptical of the practicality of hate crime laws, but there is certainly jurisdiction as they are conceived – at the very least any action with the purpose of striking fear into a racial subgroup is pretty center-mass what the 14th was supposed to address.

      1. Maybe for mass terrorism against racial sub-groups, I’m skeptical that the 14th amendment is a solid basis for federal jurisdiction for hate crimes against individuals no matter what the supposed motivation.

      2. The 14th was aimed at state action. “No State shall” and “nor shall any State deprive”.

        To think it was an open ended attack on all forms of racism is simply wrong.

        1. And a state trial being screwed up is a pretty good failure to uphold, no?

      3. I would say that Congress can act against state action or state *inaction,* that is, ignoring crimes vs. particular groups.

        But with dual prosecution, we usually don’t see state inaction – we see both states and feds anxiously striving to get in their whacks against the suspect.

      4. Some have tried to use the 13th amendment — which is not limited to state action — as a hook for federal hate crime laws. The original argument was that anti-black racial violence was a badge and incident of slavery. That’s dubious enough to me, but expanding it beyond blacks to other groups (including gays) takes ludicrous contortion.

        1. IIRC the second circuit upheld this theory wrt Jewish people when they upheld the conviction of the murders of Yankel Rosenbaum.

          1. Really? When were Jewish people ever enslaved?

            /sarcasm

          2. Yes.

            The Supreme Court in Shaare Tefila Congregation v. Cobb and a companion case involving Arabs also cited 19th Century understandings of “race” to show that the laws involved (per congressional power via the 13th and 14th Amendments) covered Arabs and Jews, seen as “races” at the time.

            A 13th Amendment argument applied to sexual orientation would be trickier but there are various open-ended arguments, some of a libertarian cast, as to its breadth.

      5. “Do you think dual sovereignty comes up for most crimes? Because it’s still quite rare.”

        It is not at all rare for drug crimes and financial crimes. Those can pretty much almost always be prosecuted either way.

  7. ScotusBlog notes that a case concerning the separate sovereigns exception to the Double Jeopardy Clause was on for conference today: http://www.scotusblog.com/case…..ed-states/

    We shall see.

    The notion of ‘hate’ crimes and ‘hate’ speech is, well, chilling.

    Keep the readership posted, please.

  8. Rapists are seldom indifferent to the sex of their victims. Literally, they are almost always chosen “because of” their sex. A thief might well steal only from the disabled because, in general, the disabled are less able to defend themselves. Again, literally they are selected “because of” their disability.

    This looks like a bad argument to me. There is a difference between some group simply being attractive victims and the crime being motivated by hatred of the group. Heriot herself obviously understands this. Later in the OP she writes:

    I understand there have been prosecutions that I would find troubling?where it is a real stretch to suggest that the defendant was motivated by hatred of a group.

    (My emphasis)

    1. And how will such arguments be received in the aftermath of a horrible rape when politicians and U. S. attorneys (like there’s a difference) are competing to see who is the most outraged by the awful crime?

      1. Just let the cops find a rapist’s diary where he boasts how he rapes women to take revenge for the way women treated him, and see how much the politicians will be able to resist the urge to make a federal case of it.

        1. Isn’t a crime agains a woman that is motivated by a hatred of all women the same as a crime against a black person motivated by hatred of black people?

          I don’t understand why your point is an argument against the whole notion of hate crimes.

          1. Given how politicians (including prosecutors) operate, if there’s a public demand for showing off how much they’re against a given crime, the feds will find a hate crime angle.

            If the courts give it a narrowing construction later, that’s nice, but until then the incentive is to pile on in any given case where the public is baying for blood. Even if the state prosecutors are quite willing to seek a harsh sentence for the rapist. No matter, the feds will want to stick their noses in it.

            1. Again, the role of the feds should be to step in *if* the states are unwilling or unable to protect certain classes of people from crime. Like a local sheriff speculating that maybe those civil rights workers of Jehovah’s Witnesses just committed suicide or moved to California or smething.

              Then would be the time for the feds to come in and make up for the state’s failure to ensure equal protection.

              But now the incentive is for the feds to step in whenever the crime provokes public anger – even if the public anger is shared by state authorities.

              And sex discrimination won’t be tough for a federal prosecutor to find if he’s looking.

              “See, your honor, he called his victim the b word, showing he was motivated by misogyny when he raped her.”

              1. So what you are saying is that prosecutors are often “over-zealous,” to use the polite term for abuse of their authority, so we should be careful about giving them excuses.

                That’s not unreasonable, though of course the problem is not limited to this arena. I’d say we need much better controls on prosecutors, at all levels of government.

                But in order for the feds to “step in,” as you put it, when appropriate they need some kind of basis for doing so. What do you propose?

                1. “But in order for the feds to “step in,” as you put it, when appropriate they need some kind of basis for doing so. What do you propose?”

                  I think I already covered that particular point, when I said

                  “Again, the role of the feds should be to step in *if* the states are unwilling or unable to protect certain classes of people from crime. Like a local sheriff speculating that maybe those civil rights workers or Jehovah’s Witnesses just committed suicide or moved to California or something.

                  “Then would be the time for the feds to come in and make up for the state’s failure to ensure equal protection.”

                  1. In sum, when the local authorities are deliberately ignoring or downplaying crimes against people from groups they don’t like.

                    1. Yes. I understand what you said, but I am asking what legal basis you think they should have for stepping in. Hate crimes laws? The 14th Amendment? Civil rights law?

  9. I understand there have been prosecutions that I would find troubling?where it is a real stretch to suggest that the defendant was motivated by hatred of a group. When a person shouts group-based epithets at someone who has made him angry for independent reasons that obviously shouldn’t be enough for a hate crime prosecution . . .

    Obviously? How do you know someone shouting “group-based” epithets became angry for “independent” reasons? Just because there was some other apparently-related reason in sight? How do you know the independent anger wasn’t exacerbated by the group hatred the epithet not only implies, but actually utters? Seems like disentangling questions like that is what juries are for.

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