Hate crimes

The Verdict Against Ahmaud Arbery's Killers Highlights the Problems With Federal Hate Crime Statutes

Such laws, which allow redundant prosecutions based on defendants' bigoted beliefs, supposedly are authorized by the amendment that banned slavery.


The three white men who killed Ahmaud Arbery, a 25-year-old black jogger, after chasing him in pickup trucks through a suburban neighborhood near Brunswick, Georgia, were convicted today of federal "hate crimes." The jury concluded that Gregory McMichael, who initiated the chase; his son, Travis McMichael, who killed Arbery with a shotgun; and William Bryan, who joined the chase in his own pickup truck, had pursued and assaulted Arbery "because of" his "race and color."

That violation of 18 USC 245 is punishable by life in prison. But since all three defendants are already serving life sentences in state prison for murdering Arbery, the federal convictions won't have any practical effect on their punishment. Gregory and Travis McMichael are not eligible for parole, and Bryan won't be eligible until his early 80s, assuming he is still alive. The point of this second trial was to "send the message that the Justice Department won't tolerate this type of racist hatred," as a former federal prosecutor put it in an interview with The Washington Post.

The prosecution presented evidence that the defendants had repeatedly expressed racist sentiments in the months and years before they killed Arbery. Without contradicting that evidence, the defense argued that the three men were motivated not by racism but by their suspicion that Arbery, who had repeatedly visited a house under construction in the neighborhood, was engaged in criminal activity.

The jury evidently surmised that Travis McMichael et al. would not have viewed Arbery as a criminal suspect if he had been white. Assuming that's true, they responded to him the way they did "because of" his race. But since the opinions they had expressed were crucial to the prosecution's case, it is equally true that the defendants were convicted "because of" their benighted beliefs. Condemning them as bigots was the whole point of this exercise, since they had already been condemned (and punished) as murderers.

According to the Supreme Court, this second, symbolic prosecution did not amount to double jeopardy, because the state and federal crimes, defined by two different "sovereigns," are not "the same offense." The Court also has held that hate crime prosecutions, although they frequently impose additional punishment based on constitutionally protected speech, are consistent with the First Amendment.

Even if you buy both of those arguments, you may wonder where Congress gets the authority to federalize state crimes such as assault and murder. The main constitutional rationale for 18 USC 245, which focuses on interference with the use of public facilities (such as the street on which Arbery was jogging), is that the 13th Amendment empowered Congress to address "the relics, badges and incidents of slavery." The 13th Amendment also supposedly authorizes 18 USC 249, a more recent statute that covers bodily injury inflicted "because of" the victim's "actual or perceived race, color, religion, or national origin."

While the racism expressed by Arbery's killers is historically related to the racism underlying slavery, neither statute requires a white perpetrator or a black victim. Lemrick Nelson, a black man who fatally stabbed Yankel Rosenbaum, a Hasidic Jew, during the 1991 Crown Heights riot, was convicted under 18 USC 245. Tiffany Harris, a black woman who was arrested in 2020 for slapping three Jewish women in the same Brooklyn neighborhood where Nelson killed Rosenbaum, was charged with violating 18 USC 249. In cases like these, the connection to "the relics, badges and incidents of slavery" is hard to perceive even if you squint.

Nelson challenged his federal conviction, arguing (among other things) that Congress had exceeded its authority under the 13th Amendment. In a 2002 decision rejecting Nelson's appeal, the U.S. Court of Appeals for the 2nd Circuit noted that the amendment's prohibition of slavery and involuntary servitude is race-neutral. It added that "'race' as used in Thirteenth Amendment jurisprudence is a term of art, whose meaning is not limited by today's usage." When the 13th Amendment was ratified, the 2nd Circuit noted, Jews were commonly viewed as a distinct race.

As Case Western Reserve law professor William Carter noted in a 2007 law review article, there are several problems with this analysis. "As the court acknowledged, Jews, in contemporary society, are not thought to be a separate race," Carter wrote. "Accordingly, even if the Thirteenth Amendment protects all racial groups, the court had to determine whether the Thirteenth Amendment protects non-racial classes."

Carter also noted that "race-based violence is not literal slavery or involuntary servitude." Since "there was no allegation that Rosenbaum's assailants intended to subject him to literal enslavement or involuntary servitude, the court had to analyze whether religiously motivated violence against a Jewish person amounted to a badge or incident of slavery," he wrote. "The fact that the Amendment's prohibition of actual enslavement is race-neutral does not necessarily mean that its prohibition of the lingering effects of slavery is also race-neutral."

The notion that an amendment banning slavery authorizes the federal prosecution of black people who assault Jews seems more than a little far-fetched. Also counterintuitive: the idea that repeatedly prosecuting people for the same conduct is consistent with the Fifth Amendment's ban on double jeopardy. Reasonable people likewise might question the assumption that the Justice Department should use the criminal justice system to make a moral statement about people's beliefs, as opposed to punishing them for their criminal conduct—especially when state courts have already accomplished the latter objective. Today's verdict reminds us of all these riddles, but it certainly does not solve them.

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  1. Has any non-white person been convicted of a federal hate crime?

    1. Can you manage to read as far as the article's 7th paragraph?

      1. You're new here aren't you?

      2. Why would you bother?

    2. Has any non-white person been charged of a federal hate crime?

    3. Yes. But they had to find a Jewish victim. A simple "black" person killing a "white" person doesn't count. There has to be a religion involved, apparently...

  2. The lesson is if you are going to take the law into your own hands:

    1) don't call the police
    2) don't videotape it
    3) don't talk about it after the fact

    Body disposal is another topic.

    1. More people should have watched ‘Dexter’.

    2. Alternatively, be sure to wear an animal-themed exotic costume. Batman never had to worry about these sorts of prosecutions.

    3. The other lesson is that our vestigial racists are being painted into increasingly small corners of America by their betters as our society continues to improve against the preferences and efforts of old-timey bigots.

      In the case of these particular, despicable, worthless, murderous bigots, that corner may be about 6 x 8.

      1. I think the lesson here is that expressing your prejudice exposes you to future double prosecution when they decide to indict you for whatever the hell they feel like when you fall out of favor

        But the Rev is too obtuse to conceal his bigotry

        1. Obtuse, ignorant, stupid, bigoted, elitist, classist, it has a lot going on.

      2. Sadly, racist like you keep coming out of your corner.

  3. Coming soon: Dissent is a hate crime

    1. Being that ugly is also a crime.

    2. Canada.

  4. Fair as an advocacy piece (hypothesis: Current 'hate crime' law is inconsistent with its only constitutional enablement—the 13th Amendment), but provides no real insight beyond that of its last sentence.

  5. The 13th amendment doesn't ban slavery. It's still legal as a punishment for crimes so technically these guys could be enslaved for their hate crime.

    1. I would choose to be a slave over being in jail for life. The slave route could go horribly wrong but I'd take my chances.

      1. You’re a democrat, so you are a slave. You’re just too delusional to understand that.

  6. A crime is a crime is a crime. Why do we only look at motivation of some crimes and not others? That in itself is unfair.
    Also, Reason argued earlier that additional trials and sentences is a deterrent. Explain how two life sentences without parole is more of a deterrent than one life sentence without parole? If one life sentence without parole does not deter someone, I really doubt two life sentences without parole will make a difference.

    1. Hey, this is the only (current) mechanism to punish Americans for racism. Injuring or killing someone is a crime. For progressive purists, disliking races or cultures* also should be a crime. Prosecuting a "hate murder" is just anticipating future laws against feeling hate.

      *Of course, hating rural white people is OK, and highly commendable.

    2. We look for motivation in only some crimes because Cole’s are different from one another.

      For example, unintentional killing is serious enough to warrant s special law against it.

      Unintentional theft, on the other hand, just isn’t much of s problem.

      And unintentional spreading of falsehoods is something we legally protect.

  7. >>The point of this second trial was to "send the message that the Justice Department won't tolerate this type of racist hatred,"

    other types certainly welcome by DoJ

  8. These federal hate crime laws were created when racist white juries would acquit people who commit racial crimes because the juries were ok with lynchings and such. This conviction today allows prevents them from being freed if they get a pardon. The US criminal justice system really sucks and there are many many horrible things it does. In the grand scheme of things I am ok with having another way to lock up violent racists.

    1. Better some guilty get punished than an innocent man goes free, and all that.

      1. Most important for Molly is that these laws are used by the feds to crack down on wrongthink.

        1. They rang him down in a pickup truck and shot him. Bit more then wrongthink.

          1. They were ALREADY convicted of murder.

            I fail to see the point of "AND THEY WERE SUPER MEAN ABOUT IT!" being added to the list of charges.

            1. The point is to secure a federal conviction in case the state conviction falls apart.

              1. You literally just defined double jeopardy, which the Constitution specifically prohibits and the 5th amendment reaffirms.

                Article 3, Section 2: ...The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed;

                Amendment 5: ...nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb

                A crime may be a federal offense, but the criminal is to be tried in the jurisdiction of the state in which it was committed. It is judicial overreach to infer that their are 2 jurisdictions where the Constitution dictates a single valid jurisdiction and makes no reference to a second.

              2. And the state conviction might fall apart how exactly?

                1. As was pointed out, the statute was first passed based on a history of malfeasance primarily by the Southern law enforcement and judicial systems (as happened in the early stages of this case, unsuccessful only because video evidence was made public), and jury nullification by all-white juries of crimes committed against Blacks.

                  Did that jog your memory?

                  1. People did things badly, so fuck the constitution

                  2. And what evidence do you have that those conditions exist in this case?

                    1. The murder conviction kind of kills the argument.

                  3. "Bad thing happened once before so we're going to pass dubious Constitutionally-speaking measures now" seems like an insanely bad idea.

                  4. Your defense is, there used to be the chance for a biased outcome, so we continue to do this action that is a clear violation of natural rights, and in fact runs opposite our own legal system? You are a bit immature, one senses.

              3. Typical leftist thinking. The rules don’t count if you don’t get things your way. Every one of you believes in that. That’s why your kind are the enemy and have to be dealt with.

              4. 1) This should run afoul of double jeopardy.

                2) It did not fall apart and they STILL prosecuted them.


        2. These white losers hunted, cornered, and killed a man based on bigotry and stupidity. Calling that "wrongthink" is the mark of the type of worthless, obsolete clinger whose destiny in modern America is to be defeated in the culture war and eventually replaced by better Americans.

          1. And they have been sentenced to die in prison for the act that their beliefs perhaps led them to.

            I'm not exactly sure what enhanced punishment you are seeking.

            1. It's clearly about the wrongthink. And that's what makes the twisted justification so amusing

            2. He doesn’t know. He’s just a worthless drone. He obeys the will of the collective. It’s unlikely he has a single original thought in his empty head.

    2. Punishing people for their attitudes and beliefs.

    3. Yep, keep accusing people of things and trying them until you get the desired verdict. Cunt.

    4. So, you're saying the need has mostly passed, and therefore this gross infringement of the 5A has outlived it's questionable use? Okay so we can do away with it now, glad you agree.

    5. Yet, they are particularly unlikely to get a pardon, dim bulb. Your argument has no bearing, or weight. The Federal charges and conviction are purely sociopolitical vindictiveness on a grand scale. And, if you are okay with racists being locked up, then you and the majority of the left-leaning/progressive commenters should volunteer to be imprisoned for your racist views.

  9. The main point here is that the courts recognize the theory that the prosecution can read minds, and determine what someone was thinking at a specific point in time before the prosecutor knew that person existed. Madame Ruby would be amazed.
    So a given drug addict decides it is time for a fix. Lacking the funds, he decides to rob the next person he meets. The addict is also white, and has in the past expressed a dislike for "a favored group".
    He makes the calculation that the penalty for robbery in that area (say no penalty at all in some cities) is worth it for the fix.
    The difference between "robbery" and "a hate crime" is now in the hands of fate; it depends solely on next person he meets, and robs, not being in "a favored group".
    Tell me again about equal justice for all.

    1. You sound like a disaffected, worthless loser.

      I will celebrate your replacement.

      1. You will be replaced. You are an infestation. Both disaffected and about to be disinfected.

  10. It's utterly impossible for these trials to be fair. Normally evidence of people being racist fuckheads would be considered more prejudicial than probative, likely to make the jury angry when it has no bearing on the case. In a case like THIS, it's the entirety of the prosecution's case-make the jury hate these people so they'll ignore any countervailing evidence.

    The fact that they had previously seen Arbery, had watched video of Arbery trespassing in a house, and had told police they were going to keep looking for Arbery, all of that is relevant to their state of mind. They were also aware of white people who had also been trespassing or committing some burglary in the neighborhood and watching for them as well.

    Now they shouldn't have done what they did, and Arbery didn't deserve to die, but to say that they're convinced the motivation was purely racist beyond a reasonable doubt is bullshit. There's loads of reasonable doubt to be had here. Just because these guys as despicable assholes doesn't make this justice.

    1. Yeah, I don't see how you could possibly prove the charge beyond a reasonable doubt unless you have him testifying that he killed him because he was black.
      And even if you can prove from other statements that these guys are racist fuckheads, that still doesn't prove that in that moment the motivations to shoot Arbery weren't something else.

      1. Are you guys (1) Regent or Liberty law graduates, (2) trying to remember something you read in discount homeschooling outline, or (3) regurgitating something you think you heard from Hannity, Ingraham, Judge Jeanine or Carson?

        Your insights on legal issues are hilarious.

        No wonder the culture war has been such a rout.

        1. It isn’t. Younger people think the leftist millennials are loser douchebags and rebelling. You should ultimately plan on exile, or permanent residence on a landfill if you’re too obtuse to leave.

  11. Have the FEDS gone after that out of control SUV?

    1. Never happened, local news, wrong races in key roles.

  12. the 13th Amendment empowered Congress to address "the relics, badges and incidents of slavery." The 13th Amendment also supposedly authorizes 18 USC 249, a more recent statute that covers bodily injury inflicted "because of" the victim's "actual or perceived race, color, religion, or national origin."

    Evil twisted logic. Dark skin = badge of slavery. Proggies gotta prog.

    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.

      I don't see anything in there about addressing anything. There is no justification for these laws.

      1. Damn it! This Reason comments; stop injecting facts.

    2. Prog goes gotta stop or prog goes gonna be cleansed.

  13. In spite of the illogical comment that 'ignorance of the law is no defense', "mens rea" is already supposed to be part of any criminal prosecution, so this is indeed double jeopardy.

    The alternative is that "hate crimes" is punishing thought. Only dictatorships do that.

  14. You can say the same thing about hate crime as you did about neoliberalism. YOU STILL DONT KNOW WHAT IT MEANS.

    When a word is used to mean different things used in the same context IT IS MEANINGLESS.

    Blacks are celebrated for calling themselves niggers while whites are persecuted for it.

  15. "Hate Crimes"

    The following is an excerpt from the novel, Retribution Fever:

    Prior to the Furies, authorities could prosecute an accused firstly in a State-based court for the act itself then secondly in federal court predominantly for inferred intent; specifically, the emotion of hatred coupled with thinking “incorrect” thoughts about the alleged victim of that act. Acquitted in the lower court, the accused still could have been convicted in federal court under the so-called Civil Rights Act of 1964 — essentially convicted for cognition and emotion given the acquittal for the act itself. [Note: Neither The Declaration of Independence nor The Constitution of the United States of America contains the term, “civil rights”.]
    Had such “double jeopardy” reflected the nation envisioned by the Founding Fathers? Were they just? Were they fair?
    The answer is ambiguous. In a federation of states or provinces, federal matters, by definition, should be separate and distinct from provincial matters. If federal and provincial laws differ in concept, content, and application, some form of “double jeopardy” might be just.
    The legal actions in question, however, had been unjust. They reflected federal law politically based and politically driven to promote idiosyncratic, unjust ideologies.
    They had been unfair. They were administered as not equality under the law but as inequality benefitting favored minorities.

    [Optional Note: Jurisprudence long has created confusion through faux specificity in the form of overly complex and sometimes self-contradictory detail. Current criminal jurisprudence politically based and politically driven, for example, increasingly demands divining the mental state of an accused at the time of the act with regard to intent — intent being a subjective phenomenon. In the Latin lawyers so frequently use to add an aura of gravitas while confusing laymen, the concept is called “mens rea” (the guilty mind). It evolved over hundreds of years from English common law.
    “Mens rea” stipulates two kinds of intent — general and specific — and a third where mens rea itself does not apply —“liability without fault”. The act, nevertheless, remains the act or, to borrow a Latin phrase from the common law of torts, “res ipsa loquitur” — the thing speaks for itself — and should dominate the criminal proceedings. To modify those proceedings based upon objective evidence characterizing “state of mind” beyond a reasonable doubt may be warranted. To pursue prosecution predominantly upon subjective inference as often is the case, for example, with “hate crimes” is not.]

  16. "When the 13th Amendment was ratified, the 2nd Circuit noted, Jews were commonly viewed as a distinct race....As Case Western Reserve law professor William Carter noted in a 2007 law review article, there are several problems with this analysis. "As the court acknowledged, Jews, in contemporary society, are not thought to be a separate race," Carter wrote."

    Then wtf was the Whoopi Goldberg thing all about? Didn't we all just teach her the opposite of what Carter said?

    It's almost like America is confused on race.

    1. Uh, Judaism is a religion, period.

      Jews are no more a race than Christians are.

      Goldberg was all about cancel culture and punishment for speaking truth to power.

  17. Buried underneath all of this is that the whole narrative that took place is a lie. Nobody is talking about the "Arbery family attorney", Ben Crump, who has a history of spinning false narratives about truly awful people.

    He wasn't jogging. Those high school glamor shots are to paint a false picture. Ben Crump fabricated a story that was false just like he did for Trayvon Martin.

  18. My only question is this entire case is the use of "justice" vs. "revenge" when referring to the victim. Pretty sure he's unaware of the proceedings, so his family insisting on a second (and third upcoming) trial smacks more of the latter.

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