Hate crimes

DOJ Intervention Dramatically, Irrationally, and Unconstitutionally Increases the Penalty Faced by a Woman Accused of Slapping Jews

How can prosecuting a black woman for slapping Jews in 2020 be authorized by the constitutional amendment that abolished slavery in 1865?

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Over the course of eight minutes early in the morning on December 27, according to a federal affidavit unsealed yesterday, a 30-year-old woman named Tiffany Harris slapped three Jewish women—two across the face and one on the back of the head—as they were walking in the Crown Heights section of Brooklyn. "Fuck you, Jews," she reportedly said during the second incident.

What Harris allegedly did is obviously a crime, but why is it a federal crime? There is no satisfying practical, moral, or constitutional answer to that question. Making a federal case out of those three slaps nevertheless dramatically increases the maximum sentence Harris faces if she is convicted.

Harris, who was arrested by New York City police officers shortly after the attacks, was initially charged with assault, attempted assault, harassment, and menacing under state law. The most serious of those charges, assault in the third degree, is a Class A misdemeanor, which is punishable by up to a year in jail. If it were charged as a hate crime (based on the allegation that Harris slapped the women "in substantial part because" she perceived them as Jews), it would become a Class E felony, punishable by up to four years in prison.

On top of those state charges, Harris now faces three federal counts under 18 USC 249, which applies to an offender who "willfully causes bodily injury" to someone "because of" that person's "actual or perceived race, color, religion, or national origin." That crime is a felony punishable by up to 10 years in prison.

If Harris is convicted under both state and federal law, she theoretically could face combined prison sentences as long as 14 years, more than three times the maximum penalty under state law—and 14 times the maximum penalty Harris would face if the assaults were prosecuted in state court without New York's hate crime enhancement. That seems like a disproportionate response to three slaps, whatever the motivation for them.

Since New York already was prosecuting Harris, what purpose is served by a federal prosecution? "The use of violence, or the threats of violence, against anyone based on the victim's religion will not be tolerated, and those who engage in such conduct will learn that under federal law there are serious consequences for hate crimes," says Richard Donoghue, the U.S. attorney for the Eastern District of New York. But it's not as if New York was tolerating such violence. State law not only punishes assault but also punishes it more severely when it is motivated by anti-Semitism.

"Any offensive physical assault is a crime of violence, and it should be obvious that perpetrators need to be held accountable," says William Sweeney, the assistant director in charge at the FBI's New York office. "When one's actions are motivated by their hatred of another group and supported by anti-Semitic sentiments, however, it opens up the possibility of federal criminal charges, which are hard to walk away from. Tiffany Harris now faces up to 10 years in prison for her alleged actions. The lesson to others thinking of behaving as we allege Ms. Harris did—knock it off now or we are going to lock you up. The anti-Semitic attacks in this city and elsewhere have been outrageous, and the FBI will use the full extent of the laws at our disposal to protect the community."

Even if you accept the questionable premise that crimes should be punished more severely when they are motivated by bigotry, New York has a hate crime law that already quadrupled the potential punishment for these assaults. It is not obvious why a tenfold increase is more appropriate, let alone why people should be punished twice for the same crime, once under state law and again under federal law. Whether or not you buy the Supreme Court's counterintuitive conclusion that such serial prosecutions do not constitute double jeopardy under the Fifth Amendment, they certainly do not look like justice.

Sweeney's reference to "the anti-Semitic attacks in this city and elsewhere" implies that Harris is being punished not just for her own actions but for the crimes of others as well. If New York City had not recently seen a much-publicized increase in reports of anti-Semitic crimes, the Justice Department probably would not have gotten involved in such a minor case. But how can it be fair to impose extra punishment on a defendant merely because the sort of crime she committed happens to be on the rise? Punishment should be based on the nature of the defendant's crime, regardless of what other people are doing.

Federal hate crime laws invite this sort of capricious, politically motivated intervention, which is especially troubling given their weak constitutional basis. The constitutional rationale for 18 USC 249, for example, is that it serves to eliminate "the badges, incidents, and relics of slavery," a congressional power inferred from the 13th Amendment. If you don't see how prosecuting a black woman for slapping Jews in 2020 is authorized by the amendment that abolished slavery in 1865, you are paying more attention than the Justice Department thinks you should.

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  1. Kidnapping is even more of a badge or incident of slavery. So is rape. Slaves tend to become slaves due to kidnapping. And rape of slaves is winked at.

    In fact, just about every crime is a badge or incident of slavery, since slaves are treated criminally by getting assaulted, kidnapped, restrained of their liberty, etc., etc.

    Therefore the 13th amendment allows the punishment of all crimes of violence.

    QED.

  2. //If you don’t see how prosecuting a black woman for slapping Jews in 2020 is authorized by the amendment that abolished slavery in 1865, you are paying more attention than the Justice Department thinks you should.//

    That’s right, because the post-Civil war amendments and their statutory progeny only apply to black people and its completely unjust that — irony of ironies — a black woman is now hoist on her own petard!

    This is so fucking stupid its infuriating.

    Disagreeing with the concept of meting out stiffer penalties for holding unpopular opinions during the commission of a crime is one thing. Arguing that civil rights laws really only apply to select races is something else entirely.

    1. If the woman tried to enslave anyone, the feds would have to stop her under the 13th Amendment regardless of her race.

      But that’s not what she did. She committed a crime which is a traditional state responsibility to prevent and punish.

      1. The problem is that Section 2 of the Thirteenth Amendment is very squishy and it is difficult to argue that a law criminalizing race-based violence is not “appropriate legislation” to ensure that slavery should not exist in the United States.

        Is racially motivated violence only against blacks prohibited because blacks were the people emerging from the shadow of slavery at the time?

        1. I can’t speak for the original post, but my point is that the famous “badges and incidents” should have to be more closely connected to slavery to come under Amendment 13(2). And this is independent of the race or races of the parties.

          In fact, if the “badges and incidents” doctrine takes you so far away from slavery and into racist assaults on the street, then maybe the badges and incidents doctrine is wrong.

          It’s like the effects test on interstate commerce. To paraphrase Thomas Jefferson, you can relate anything to anything else if you try hard enough, like in the nursery rhyme about the house that Jack built.

          1. Ultimately, the question is: “Does Congress have the power to rationally determine what appropriate legislation is?” I think yes and if there is a problem here it is the Thirteenth Amendment itself in its rather careless use of the term “appropriate legislation.”

            Under Jones v. Mayer, Section 249 is plainly constitutional.

            And, to be honest, it is kind of difficult to dispute the logic of Jones since there is nothing in the text of the amendment to indicate that hate-crime laws are not “appropriate legislation.”

            My point however is that it seems too cute by half for Reason to argue that Jews — of all people — being protected by a federal hate crime statute is proof positive that the statute is unconstitutional.

            1. Let me put it this way – is there anything which Congress *couldn’t* justify on the grounds that it was enforcing the 13th Amendment?

              1. I’m not disagreeing with the notion that the powers ostensibly granted by the Thirteenth Amendment are very broad. Laws prohibiting acts encompassing outward racial animus are arguably “appropriate.”

                Slavery was based, in large part, on notions of racial superiority. Acts that, in the aggregate, threaten to normalize such acts (racist attacks, etc.) are, arguably, precursors to the type of collective prejudice that could lead to the imposition of slavery. Do I agree with that logic? No. Is it blatantly irrational? I don’t think so. Are such laws not appropriate? Hard to say.

                The problem is that we have a poorly drafted and ambiguous amendment. We can change it, if we want. But the vagueness of an amendment does not mean that laws enacted pursuant to it are unconstitutional.

                1. “Slavery was based, in large part, on notions of racial superiority.”

                  *American* slavery was. But not slavery all through history. And all forms of slavery are banned by the amendment.

                  As I mentioned above, each and every violent crime you can imagine was a badge or incident of slavery, whether racial slavery as in the US or slavery on some other basis in some other country.

                  It would have been a bit of a bait and switch for Congress to submit the 13th Amendment to purge the country of actual slavery, and then to pivot and declare – surprise! – that this was actually an enabling act letting Congress do what it pleased so long as it inserted some antislavery language.

                  While Congress did pass a Civil Rights Act in 1866 banning certain forms of race discrimination as badges/incidents of slavery, it was never certain if they’d gone too far or not until Congress also forced through the 14th Amendment – after the ratification of the 14th, Congress duly re-enacted the Civil Rights Act of 1866 to put it on a sounder constitutional basis. Which I think was the right call.

                  It wasn’t until the sixties – nineteen sixties, not eighteen sixties – that the Supreme Court used the Civil Rights Act of 1866, broadly construed and backed up by a shall we say robust interpretation of the 13th Amendment – to fill in the gaps in the civil-rights laws. The Court decided, of course, which gaps needed filling, ironically enough cutting Congress out of the loop, since Congress had just enacted a regulatory regime for civil rights in the 1964 and 1965 Acts.

                  Who was going to criticize the Court for Going Too Far? Seriously, who was going to carp about the details of how the government chose to Fight Racism? It wasn’t about sincerely seeking out the meaning of the Constitution.

                  1. If only there was a meta-Constitution against which to measure the constitutionality of the Constitution itself.

                    But, there isn’t. The Thirteenth Amendment is what it is.

                    Fortunately, the Constitution can be amended.

                    1. I’m afraid you’re begging the question.

                      The question is not whether the thirtheenth amendment can be amended but what it *means.*

                    2. The reason there is *any* question as to what it means, it because it is poorly drafted and very vague.

                      Vagueness leaves the door open for multiple, competing interpretations. Your argument appears to devolve into something along the lines of “Well, the amendment is vague, but it definitely means what I say it does, therefore hate-crime laws are clearly unconstitutional.”

                      Now, I understand why you would prefer your own reading to any other, but the preference alone does not make it correct.

                    3. I was suggesting that it would be implausible that an amendment understood by the people as purging the land of slavery would give Congress the power to enact a criminal code.

                      And I actually made other arguments too.

                      All you can hear is a vague buzzing in the background.

                    4. //I was suggesting that it would be implausible that an amendment understood by the people as purging the land of slavery would give Congress the power to enact a criminal code.//

                      The argument you should be making is that a federal criminal code is not “appropriate legislation” under Section 2 of the Thirteenth Amendment. If you want to make that argument, you can make it — but you should support it with some reasoning other than simply saying that the criminal code is “implausible.”

                      Section 2 does not read, “Congress shall have power to enforce this article by appropriate legislation [provided that such legislation is plausibly related to the precise and limited goal of eradicating slavery],” or something of that nature.

                      Again, what is “appropriate legislation”?

                    5. “The argument you should be making is that a federal criminal code is not “appropriate legislation” under Section 2 of the Thirteenth Amendment.”

                      I did say that – I gave the matter as much attention as warranted in belated comments on a blog comment section.

                      I even tied it in to the Commerce Clause debate – the “this is the house that Jack built” school of interpretation could make the Commerce clause and the Necessary and Proper clause mean anything you want – and that’s what’s actually happened.

                      Any hippie could give a lecture about how everything’s connected, man.

                      If the 13th Amendment was understood, *at the time of ratification,* to authorize Congress to pass a criminal code punishing various hate crimes, private discriminatory acts, etc., then why wasn’t that flagged at the time? If it was, bring forth your evidence, or did it take until the Warren Court to stumble across this great discovery?

                    6. //If the 13th Amendment was understood, *at the time of ratification,* to authorize Congress to pass a criminal code punishing various hate crimes, private discriminatory acts, etc., then why wasn’t that flagged at the time?//

                      What do you mean by “why wasn’t that flagged at the time”? If you are suggesting that every possible application of Congress’ authority needs to be laid out in a Constitutional amendment, or some other accompanying documents, in order for any subsequent legislation to be considered constitutional, that is simply not the case.

                      There is nothing about the term “appropriate legislation,” as far as I know, that categorically precludes the enactment of a federal criminal code. If this is the argument you are making, you have to support it.

                    7. “If you are suggesting that every possible application of Congress’ authority needs to be laid out in a Constitutional amendment, or some other accompanying documents, in order for any subsequent legislation to be considered constitutional”

                      What on earth does that straw man even mean? I’m talking about the public understanding of the amendment at the time it was adopted. To ratify it under a limited understanding and then 100 years later to say that I’m modifying the agreement, pray I don’t modify it any further…what foolishness.

                      If your rules of constitutional interpretation are so loosey-goosey, why just use the 13th Amendment? Why not use the bill of attainder clause (“a racist assault can be fitted within the definition of a bill of attainder because it stigmatizes a whole group, and how can you know it *doesn’t* mean this?”)? Why not ban assaults in the name of enforcing the 24th (Poll Tax) amendment because victims of crime are financially burdened in their ability to vote?

                      For that matter, why not say that marijuana grown and used solely within the bounds of a single state can be legally banned by the feds because “interstate commerce” and “necessary and proper”?

                    8. //If the 13th Amendment was understood, *at the time of ratification,* to authorize Congress to pass a criminal code punishing various hate crimes, private discriminatory acts, etc., then why wasn’t that flagged at the time?//

                      I asked you a simple question about what you meant in your use of the term “flagged” in the above statement. You deflected, did not answer the question, and then pivoted to accusing me of constructing a straw man without bothering to explain what you meant.

                      They’re your words. If you don’t want to explain, that’s fine. This back and forth is no longer constructive if you’re just going to get upset that I am not agreeing with your unsupported assertions.

                    9. Funny you should claim I’m avoiding questions, because here’s a question I asked which *you* carefully avoided:

                      “Let me put it this way – is there anything which Congress *couldn’t* justify on the grounds that it was enforcing the 13th Amendment?”

        2. Did you really write this entire article and not address why the federal charges occurred? The hate crime charge is a transparent effort to thwart the will of New York’s legislature regarding bail reform. Basically, this lady would previously have been held with a high bail and under the new law she was released and went out and slapped someone else the very next day. Oh, and the day after that, too, but at least she was in custody when she did that. The feds also charged a low-level bank robber that they would normally leave to locals when he robbed another bank after being released on the new bail law.

          That bail law comports with Reason’s philosophy and is under immediate threat from the same people who supported it in the face of some of these kinds of serial offenders. Ignoring it is not going to make the issue go away. If Reason wants to help achieve the laudable goal of not locking up unconvicted poor people prior to their trials it is going to have to address the occasionally bad outcomes of bail reform.

  3. Now have a white person slap 3 black people and see how that experiment plays out.

    1. Reason would be leading the parade calling for their summary execution by mobs of rampaging race rioters, like they did here

  4. Don’t these guys coordinate at all on the stories they want to write?

  5. This is where you wind up when you pretend you can determine the motivation of any specific criminal act.
    If a ‘racist’ white person who decides to rob the next person along, and that person happens to be black, it is a hate crime.
    Under equal protection, then someone verbalizing anti-semitic thoughts while attacking Jews is committing a hate crime.
    So maybe the best approach is to read the tenth amendment and forget Federal hate crimes.

  6. This is something that deserves a couple of weeks in jail, not a year or four. Anything more than 30 days is ridiculous.

    1. Yep. Hate crimes are still unconstitutional and the feds shouldn’t be involved. On top of that, the feds weighing in on this reeks of double jeopardy. If we must focus on race here, it is interesting to see a black woman get charged for it. On the individual level I hope she gets a light sentence because she didn’t do anything that bad. Broadly, I want them to throw the book at her so people lose the appetite for hate crime laws

      1. On the individual level I hope she gets a light sentence because she didn’t do anything that bad.

        Exactly! She just slapped the jew bitch. Damned jews always whining about something. Pigs should be happy no one’s setting up camps, amirite?

        You always wonder how the holocaust could have happened. And why they keep saying ‘never forget’.

        And then you see people taking up for someone assaulting jews, just for being jews in the middle of a series of assaults and murders of jews. And you blink, and look, just to be sure, but there it is.

        This is what hate crime laws are for. People who are aasaulting people for existing.

        They’re not for graffiti. They’re not for someone who says nigger too much.

        They’re for people who take that next step and actually get physical with another person.

        It’s easy to forget that in a world where the idea has been cheapened to the point of ridiculousness

        And getting people to forget is the WHOLE point.

        1. Libertarians seem, as a general rule, to believe that just because something is bad policy from a libertarian perspective it must necessarily be unconstitutional. That is not the case.

          There is an argument to be made that federal hate-crime laws are bad policy. But the constitutional argument against them is not readily apparent. Nor is it entirely compelling. Nor is it any more compelling with reliance upon the argument that Jews — of all people — being protected by federal hate-crime statutes is proof positive that the statute is ipso facto unconstitutional.

        2. I have Jewish heritage…
          No, I just don’t think slapping someone justifies years, months, or likely even days in jail. A financial penalty seems more in order from civil court. Further, if she got knocked the fuck out in return then I’d say no harm no foul

  7. Coming to Coney Island this summer….. Whack-A-Jew!!!!

  8. but why is it a federal crime? There is no satisfying practical, moral, or constitutional answer to that question.

    Ok let’s look

    Harris now faces three federal counts under 18 USC 249, which applies to an offender who “willfully causes bodily injury” to someone “because of” that person’s “actual or perceived race, color, religion, or national origin.”

    It appears you answered your own very stupid question.

    1. And as an aside, don’t think we didn’t notice you suddenly giving a shit because the offender was black and the victims jews.

      1. That’s the issue.

        Arguing a law is unconstitutional because it is being applied in a way one would not necessarily expect reeks of prejudice.

  9. Where’s Ta-Nehisi Coates demanding that those Jews apologize to Harris? (based on initial CNN reports that the women used the back of their heads to hit Harris’ hand)

  10. HaHa! Comes around full circle at last.

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  12. You entirely missed the context. NY ROR’d her, she slapped someone else, right wing media cried because it was also a misdemeanor so she’d be ROR’d again, the mayor intervened to get her held on a psych eval but that was too short, so the NYPD got the feds to charge her with something so they could set bail they knew she couldn’t pay.

    This is about bail reform.

    1. “Why should we take any measures to make sure that criminals show up for their trials?” – ”””””bail reform”””””

      “Why should anyone who is a minority have to serve time in jail for committing crimes?” – ”””””sentencing reform”””””

      1970s crime rates here we come! Remember to thank a ”””””libertarian”””””

  13. This would’ve been a cool backstory on Orange is the New Black.

    “What are you in for? Murder? Drugs?”

    “Naw…Slapped some Jewwy bitches.”

  14. I am not sure a good argument against this law is that the person being prosecuted is the wrong race.

  15. Hate crime laws are so stupid if someone comes to blows with anyone or kills them rest assured they hate them in that moment just as much if not more as any racist that hates the group of people they hate the most.

    1. You are using two different definitions of the word hate as though they mean the same thing. “Hate” is the context of hate-crime laws is not synonymous with a generalized antipathy toward a person, but a specific type of antipathy based on characteristics such as race or religion. I think everyone understands there is major difference here.

      1. You are using two different definitions of the word hate as though they mean the same thing.

        No he’s not. He’s using two different shades of pink as though the represent the color pink, which they do. This isn’t a new idea, the word ‘hate’ predates the term ‘hate crime’ by centuries. If there is confusion about the ‘hate’ in ‘hate crime’ it’s whomever coined the term ‘hate crimes”s fault. Considering that people both opposed and sympathetic said it was vague, irrelevant, and unworkable, doubly so.

        1. There is obvious conflation occurring because the federal “hate” crimes statute in question have concrete elements that must be met in order for the conduct in question to be considered criminal.

          https://www.law.cornell.edu/uscode/text/18/249

          Killing someone because you “hate” them, in a general sense, is not a “hate” crime, under federal law, because it would not meet the required elements.

          So, yes … he absolutely is conflating “hate” in a general sense — as antipathy toward a person — with “hate” as it used in a specific statutory context. There is only confusion if you conflate the meanings. If you don’t conflate the meanings, and actually pay attention to the elements, there is no confusion whatsoever.

          1. The ridiculousness is that you are trying to draw distinctions where they don’t exist, as if a lynching were somehow worse than a gang hit.

            1. A gang hit does not require any hate. I assume you have heard the term “cold blooded murder” before. If you have, I assume you understand quite clearly the difference between murdering someone out of a desire to eradicate the racial and/or ethnic group to which they belong and murdering someone because you were paid money to do so.

              The notion that all crimes that involve violence necessarily involved “hate” is fallacious. That, quite frankly, is the ridiculous assertion in this entire discussion. My point is completely valid. You should at leat try to understand it.

              1. No matter your assumptions, I do not understand the difference between murdering someone out of a desire to eradicate the racial and/or ethnic group and murdering someone because you were paid money to do so.

                Are the murdered people not equally dead?

                Why should anyone, much less the courts, care about the murderer’s feelings?

  16. ROFL!! Just remember boys and girls – Diversity Is Our Strength!

  17. AHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA

    Reason finally manages to find a protected class it opposes. Good to see you embracing the radical anti-Semitism of the Marxist left along with their economic and social policy.

  18. Hate Crime laws are all blatantly unconstitutional, as are all Civil Rights laws.

    Hoping that one day soon, SCOTUS overturns all of them.

    1. “If you believe in equal rights, then what do “women’s rights,” “gay rights,” etc., mean? Either they are redundant or they are violations of the principle of equal rights for all.” – Thomas Sowell

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