The Volokh Conspiracy

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Volokh Conspiracy

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 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).