Mass Shootings

The DOJ Should Not Prosecute Robert Bowers

The federal case against the Pittsburgh shooter is redundant and constitutionally questionable.


If anyone deserves execution, the man who murdered 11 mostly elderly people at a Pittsburgh synagogue on Saturday certainly seems like a strong contender. But regardless of how you feel about the death penalty, the Justice Department's decision to pursue it in this case should trouble you if you worry about an overweening federal government, value the principle underlying the constitutional ban on double jeopardy, or think the government ought to punish people for their actions rather than their beliefs.

The federal criminal complaint against accused Pittsburgh shooter Robert Bowers charges him with 29 felonies, including 11 violations of 18 USC 247, which authorizes the death penalty for fatally obstructing any person's "free exercise of religious beliefs." Such a crime can be prosecuted in federal court as long as it "is in or affects interstate or foreign commerce."

To give you a sense of how loose that requirement is, the complaint asserts that it's met because the guns Bowers used "were not manufactured in the Commonwealth of Pennsylvania" and therefore must have "traveled in interstate commerce." Federal courts also have held that a church's involvement in interstate commerce, such as hosting visitors or ordering Sunday school materials from other states, is enough to justify invoking this statute when someone vandalizes the church.

Such a broad understanding of the congressional power to regulate interstate commerce obliterates the distinction between state and federal authority recognized in the 10th Amendment. If Congress has the power to regulate anything related to interstate commerce, no matter how trivially or tangentially, what crime can't be federalized?

This assertion of federal power is redundant as well as unconstitutional. In addition to the federal complaint, Bowers faces 36 state charges, 11 of which could expose him to the death penalty. Mass murder, it turns out, is illegal in Pennsylvania.

This overlap allows serial prosecutions for the same crime. In 2003, for example, a federal jury convicted Lemrick Nelson, who had been acquitted in state court of murdering Yankel Rosenbaum during a 1991 riot in Crown Heights, Brooklyn, of violating Rosenbaum's civil rights by stabbing him because he was Jewish.

According to the Supreme Court's "dual sovereignty" doctrine, prosecuting a defendant again after he is acquitted does not count as double jeopardy when one case is state and the other is federal. But such legal sophistry does not change the nature of what is happening: Prosecutors can try again when they don't like the first outcome, or even punish a defendant twice for the same conduct.

And not just for conduct. Both the state and federal complaints against Bowers accuse him of "hate crimes" that hinge on his hostility toward Jews. The federal complaint notes, as evidence that Bowers violated 18 USC 247, that he "made statements evincing an animus towards people of the Jewish faith," such as, "They're committing genocide to my people. I just want to kill Jews."

It also would be legally relevant to cite Bower's anti-Semitic comments on social media platforms, just as it was legally relevant to cite Dylann Roof's racist manifesto when he was prosecuted for committing federal hate crimes by killing nine people at a Charleston, South Carolina, church in 2015. When Bowers averred that "Jews are the children of Satan" and warned that "there is no #MAGA as long as there is a kike infestation," he surely was displaying "an animus towards people of the Jewish faith."

Like Roof, who received nine life sentences in state court and 18 death sentences in federal court, Bowers cannot be executed more than once or imprisoned for more than one lifetime. But federal or state hate crime charges can substantially increase the penalties faced by people accused of less serious crimes.

The upshot is that hate crime laws punish people for the opinions they express as well as the evil that they do. A government that truly respected freedom of thought would stick to the latter.

© Copyright 2018 by Creators Syndicate Inc.

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  1. “Mass murder, it turns out, is illegal in Pennsylvania.”

    I drove through Philly once and I’m fairly certain that’s not true.

    1. Philly lives in Hackensack now. 😉 He says, “Hi.”

    2. Filthadelphia should be a federal crime.

  2. WTF, I agree with Sullum…
    The state is the one to prosecute him and give him the death sentence. Fed jumping in is redundant and unnecessary.

    1. Not to those federal prosecutors who hope to ascend to higher elected office it isn’t.

    2. “Fed jumping in is redundant and unnecessary.”

      I have to disagree with you there (sorta). It’s way beyond redundant and unnecessary. I believe that it is overwhelmingly obvious that it’s unconstitutional. I understand that the legal powers-that-be disagree with me. But, it’s also worth noting that they disagree with me when I say that throwing innocent people into prison camps because they are of Japanese descent is also unconstitutional.

      The precedent of allowing this form of double jeopardy is ludicrous and is only tolerated because an overwhelming majority of people in this country don’t give a damn. They’re just competing with each other to advocate for the harshest penalties against people that they think are bad.

  3. Finally, a well reasoned and cogent tweeted article with which i agree 100%.
    In addition, i would argue that hate crime laws create some people or groups that have greater value than others. It is not within government’s (our public servants) authority to police our thoughts.

  4. Unfortunately, the DOJ not prosecuting this leaves open the possibility (or absolute certainty) that Democrats will accuse the Trump Administration of not taking such violence seriously, because it happened to a minority. That will probably (certainly) expand into assertions that by failing to call for Federal prosecution, Trump is encouraging more violence against minorities.

    1. Pretty much. And at the same time, the Feds having such authority will eventually lead to MAGA hats being passed out with school lunches or somesuch.

      There is no winning on this issue without a clear philosophy of what should be federal powers, and arguing for that instead.

    2. Unfortunately, the DOJ not prosecuting this leaves open the possibility (or absolute certainty) that Democrats will accuse the Trump Administration of not taking such violence seriously, because it happened to a minority.

      Also, the whole ‘a federal government that truly respected freedom should stick to judging people by their actions’ ship has sailed several times over. It’s a conservative line of thinking that was decisively struck down in Lawrence v. Texas and I don’t think Sullum (or others) recognize that it would nix a lot of the Progressive/Civil Libertarian agenda. Trans or not, you’re a man in a restroom clearly demarcated for women.

      1. Since we now stoop to bringing in precedent, with shame I must point out that the shoe in United States v. Shipp, 203 U.S. 563 is now on another foot entirely. The CPUSA, Dems, Greens and now LP evidently want people like this berserker and Robert Dear supported by capitation taxes taken from non-murderers. Non murderers would like to find SOMEONE to vote for that is on their side, and as of just now it ain’t the LP anymore. For the second time in history, the LP platform is sullied to the point at which it looks bad compared to the actions of the pussy-grabbing, tax-and-spend, prohibitionist Trump r?gime! I’d be OK with letting the Mossad have custody and extraditing the louse to trial in Israel. I’ll offer 7 to 2 nobody over there wants the courts to coddle little Bobby any more than they did Eichmann.

  5. So I take it this guy has completely erased all memory of the attempted bomber that didn’t manage to explode a single device? I guess theoretical violence still takes a backseat to real violence.

    Crazy that there were two nut jobs in the same week.

  6. Some people deserve to burn; specifically people who violate the natural rights of others, by denying them life or liberty.

    However, there is no person on this planet or in recorded history who has the clarity of judgement and moral thought to pass down the sentence. No just government can be in the business of killing people. Those dangerous individuals must be locked away (denied their liberty) and remain so until they are exonerated by their peers or they die a natural death.

    1. Meh. If you have a just court system, which we really don’t but could in theory, there’s nothing wrong with the death penalty. Honestly, why the heck would somebody want to rot away in prison for 30, 40, 50 years versus just get it over with anyway? I guess maybe some people would… But if somebody committed mass murder, or was a serial child rapist or whatever, and it was proven beyond a shadow of a doubt… If they want to live in prison for 50 years, that’s every reason to not give it to them!

  7. Jacob raises interesting points. Unfortunately the Libertarian Party has allowed its platform committee to again be taken over by cranks illiterate in law and hostile toward libertarian values–values which do not reward nationalsocialist eugenic genocide and haven’t since 1941. But if fattening amok berserkers at taxpayer expense is now spray-painted into our platform, who else is there BUT the federal government to stick up for rights? The only legitimate service any government has to offer is the forcible restraint of creatures dangerous to individual rights. If even the LP wants to instead turn government into a hostelry service for killers, funded by a capitation tax expressly barred, because socialist spoiler votes ushered in the communist manifesto tax Amendment, what alternatives are there?

  8. Of course! Shooting people in 1 state is bad advertising for the business in the other state the gun was made in, so it affects…I got nuthin’.

  9. Doesnt matter We have Federal hate crime laws which are more severe than simple murder convictions. The crimes committed by Bowers deserve the harshest punishment possible and although true he can only be executed once that is not the point. The point is he will be executed not for killing 11 people but killing 11 people who were Jewish practicing their faith. It would be the same if he killed them for being Christians or Muslim.

  10. “If Congress has the power to regulate anything related to interstate commerce, no matter how trivially or tangentially, what crime can’t be federalized?”

    The SC did strike down the federal law against possessing guns in “school zones,” which had been originally justified on the Commerce Clause grounds that guns “travel in interstate commerce.” So there is precedent for the Court repudiating that particular argument supporting the federalization of state crimes.

  11. The reasons why we have federal laws like this is because there were numerous instances during the Jim Crow era where Southern states just weren’t terribly interested in protecting the lives and liberty of black residents. Since local police shot and arrested the suspect in this case, we can be confident that state and local authorities will see to it that Robert Bowers receives due process. But considering that there are other cops like Joe Arpaio out there who gleefully ignore state laws, these federal laws are still needed. Still, as long as state and local authorities are investigating these violent crimes in good faith, there is no reason for the federal government to get involved.

  12. Arguably, the failure of states to enforce criminal laws when victims were members of a class of people discriminated against by the state could have been handled by striking down Jim Crow laws as violating equal protection and the guarantee of a republican form of government. Selective enforcement of the law after that point would again be a guarantee clause violation. Commerce need never have come into it. But IANAL, just someone who studied constitutional history at the undergraduate level. It takes a JD to subject the Constitution to the sort of torture that gave us some of the worst Warren-Court-era rulings.

  13. The point is not he he can only be executed once. The point is that he should be executed.
    If that requires the Feds, so be it.

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