Does hate-crime bill create double jeopardy? Latest right-wing meme as hollow as the rest
By David Neiwert Tuesday May 05, 2009 11:00am
[H/t Heather]
Most of the debate from Republicans regarding the hate-crimes bill that just passed the House -- titled the Local Law Enforcement Hate Crimes Prevention Act of 2009 -- has been of the immensely silly variety that's easily exposed as the thinly built strawmen they are.
Jon Stewart had some fun last night with some of the nonsense we heard in the House as the bill progressed through that chamber. My favorite is Rep. Steve King's claim that the only reason gays get assaulted is that they flaunt their sexuality, and if they'd stop doing that, this would just go away. Reality: Gay-bashing bias crimes are often inflicted on straight people mistaken for being gay. These in fact are nonetheless bias crimes intended to terrorize a target community of gays generally, and should be (and often are) prosecuted as such.
However, David Freddoso at National Review has raised something of a fresh objection, to wit, that the new federal law’s provisions raise the specter of double jeopardy:
People usually think of hate-crimes bills as sentence-enhancers – and indeed, many state hate-crime laws take that format. The Shepard bill does not. In addition to providing financial help for local prosecutors for hate crimes, it creates a new federal charge, with a ten-year prison sentence, that can be used against those who commit “crimes of violence” with firearms or explosives, or which cause serious bodily harm, motivated by hatred toward certain groups.
Among other things, the bill permits the U.S. Attorney General to initiate federal hate-crime prosecution in cases where “the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence.”
If someone is acquitted of an alleged hate crime at the state level, this bill allows federal prosecutors to haul him into federal court for the same alleged act, based only on evidence that “hate” motivated the crime that the jury says the defendant didn't commit. This makes use of a loophole in the constitutional protection from double jeopardy.
This struck me immediately as specious -– my understanding of these things, such as it is, is that the federal charges would have to undergo a strict review from the Justice Department regarding double jeopardy, states rights, and free-speech issues before proceeding. That's contained within the language of the bill:
‘(b) Certification Requirement- No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, the Deputy Attorney General, the Associate Attorney General, or any Assistant Attorney General specially designated by the Attorney General that--
‘(1) such certifying individual has reasonable cause to believe that the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of any person was a motivating factor underlying the alleged conduct of the defendant; and
‘(2) such certifying individual has consulted with State or local law enforcement officials regarding the prosecution and determined that--
‘(A) the State does not have jurisdiction or does not intend to exercise jurisdiction;
‘(B) the State has requested that the Federal Government assume jurisdiction;
‘(C) the State does not object to the Federal Government assuming jurisdiction; or
‘(D) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence.
The problem of dual prosecutions that Fredosso raises, in fact, has been around since the days when Al Capone was able to buy off local judges in Chicago, and in my understand was dealt with long ago. So immediately I suspected there was a problem with his analysis.
However, not being an actual lawyer, I thought I would ask one. So I went straight to the top, to the most authoritative voice on this issue I know: Frederick Lawrence, Dean of the George Washington University Law School and one of the nation's foremost authorities on bias-crime laws.
Here's his response:
David:
Good to hear from you. Two things --
First, the procedural protections you outline along with internal DOJ policy on dual prosecutions provides much protection against abuse here.
Second, there is no constitutional problem here. There is something called the "dual sovereignty doctrine" which permits state and federal prosecutions for the same crime without any issue of double jeopardy as a constitutional matter. This is true generally -- narcotics cases, organized crime cases, official corruption cases, etc. It is precisely to avoid the potential abuse of this constitutional permission that DOJ has its own strict guidelines, limiting their actual use of this authority. Simply put, this is an issue, but not a new issue, and not a hate crimes or a civil rights issue. It is a general criminal law issue under our federal system of government and it is one that has been satisfactorily addressed for decades in practice and policy.
I hope that this useful. Let me know if I can help further.
Best regards,
Fred Lawrence
Hopefully, the "double jeopardy" objection has now being laid to rest, too.
On the other hand, considering the extended half-life enjoyed by the rest of the right-wing Zombie Lies about hate crimes, I'm not holding my breath.
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Isn't being charged as a terrorist the same concept as being charged with a hate crime?
There is a structural similarity, yes: Terrorism is similarly a two-tier crime, in which the underlying crime is already an ordinary crime, but the intent and motive of the perpetrator are seen as causing extraordinary harm beyond that inflicted on the immediate victims, and so worthy of harsher sentencing.
I registered specifically to mention this, because I really think it hasn't been given nearly enough talk time anywhere.
Dave: you're exactly right. If punishing the motive for crime is such a terrible thing, well, terrorists should be charged with "damage to property" or "attempted murder" (although "attempted" implies intent to murder, so...); we certainly wouldn't want a chilling effect, now would we.
The only difference here is the targets of terror. Gay-bashing, for instance, intends to terrorize homosexuals in a community, but, hey, maybe they bring it on themselves. If people would just stop being public about who they love (no chilling effect there, by the way) then nobody would need to beat them up.
Try to turn that argument into a macro-view and imply the USA "brings terrorism upon itself" then you see just how awful the consequences are. I'm not saying the argument is this simple, but it really gets me riled up when the right starts screeching about hate crimes as "thought control."
Gay-bashing is just a lower-visibility, more geographically limited form of terrorism. Church burning, lynching, clinic bombing, they're all terrorist acts, intended to strike fear in the hearts of the targeted. We as a nation need to stop acting like some people deserve to be afraid based on who they are.
They want to terrorize their target for the same reason - hate.
..but the "group" the target belongs to. Whether ethnic or sexual, doesn't matter, the hate extended to the target extends to the community at large and therefore a Hate Crime.
I do hope I got that right.
I love a chilling effect on crime and corruption. I can't get enough of it. Especially with a long hot summer coming.
Let the cool breeze sweep over the whole government and sterilize it. BuschCO left us sitting in a deep freeze, and they have not gone anywhere! Let the chilling effect commence! Now!
War, guns, assaulting people who have the audacity to be different.
Is that it goes both ways. Hate crimes laws aren't just there to protect gays or minorities.
It would be a hate crime if a group of gay men went out and randomly decided to find some "breeder" to assault.
If would be a hate crime if a group of illegal immigrant Mexicans were tired of the abuse and went out to find some middle ages white male, and beat the guy to death.
If would be a hate crime for a group of young punk Muslim kids to hunt down an old Jewish lady and kill her ... or, a group of young punk Jewish kids to hunt down an old Muslim lady and kill her.
Right wingnuts always seem to see themselves as the victims of these laws, they never seem to realize they can be the victim of the crime.
it would prevent any of us here from going out and beating the living crap out of each and every right wing gooper crybaby.
Not that we would of course....:)
Political Orientation is NOT a Protected Category
You'd just be charged with assault ..
;)
So, in a bar fight, you're definitely better off announcing you're beating the crap out of someone because they're Republican. If the phrase "dumb, inbred hillbilly" escapes your lips, some enterprising federal prosecutor might just think of a way to make a case.
I have less of a problem with this law b/c there's a provision that bars evidence of past acts or words that could show the defendant is hate-prone. I spend most days trying to make sure that prosecutors don't argue that my client (mostly black or hispanic, rarely a choirboy but occasionally quite innocent of the accusations) is guilty of a crime because he's a bad person. Liberal or conservative, we've got to be careful of tossing aside the Constitution because we want people we don't like locked up. Nevertheless, the past acts provision makes the bill safer and, I believe, that's what earned it the blessing of the ACLU.
The Supreme Court has consistently ratified the idea of Dual Sovereignty since the 1820s, but not without criticism. Hugo Black wrote one of the better known dissents. The idea is that we owe our allegiance both to our sovereign state and to the US, and we can be prosecuted twice if one acts offends both sovereigns (say, in bank robbery). I'm not sure that holds true to the spirit of the double jeopardy clause, but it's the law. The DOJ has a firm rule against prosecuting if someone was prosecuted in state court, unless there's evidence of corruption or manifest unfairness. A good rule, but something less than a constitutional guarantee.
The law seems ok to me as long as it's only used in cases of state court corruption or jury nullification, not simply because a state hasn't passed a hate crime enhancer to our liking. I can't help thinking though that legislators, conservative or liberal, find nothing easier than passing new laws every year to ensure people their constituents don't like go to prison for longer and longer sentences. Tell me if there's another way to explain the federal sentencing guidelines for drug offenses.
I know that right wingnuts could possibly drive me to violence. BUT -- would that be a "hate" crime? Yeah. Unfortunately, right wingnuts don't always look crazy. And they don't have brown skin and they don't hold hands w/persons of the same sex (except GWB who holds hands with the Saudis). However, when they open their mouths they give themselves away every damn time. But that doesn't give anyone license to commit crimes against them --more's the pity. The GOP has become the party of "victims." That's how they've looked at themselves for years (even before GWB).
It's the same group of people that defend torture....if they could get away with it, they'd be killing gays, blacks, jews, arabs ad infinitum in the streets before eventually turning on themselves.
If one holds no animosity toward any particular group of people, why would they be against this bill. Maybe I'm just missing something but it sounds to me like King wants to reserve the right to punch someone.
Then he couldn't take out all that self-hatred he feels every time he sees any man he's attracted to.
I wonder if he has moments when he is doubtful of his own sexuality and hates himself when that happens. I'm not sure if it's a hate crime if you beat yourself up.
If you see what I'm saying, this type of person takes out violence on those that exhibit the qualities that said person hates and fears about himself. It's not a pleasant place to be, the closet. I was there, I understand that ignorant ass better than he does himself.
Is your first name Thom by any chance?
why?
I have a gay friend by that name who lives in Texas. He too was in the closet for a long time. When he finally came out and met his partner (who has been with him many years) he was so wonderfully happy. I guess I hoped I was talking to him. I have known him since high school. I was so painfully shy back then and he was kind enough to take me to my first dance. I love him!
They're always either married or gay. All the good ones here (slim pickings) are taken. The others are closeted, married to women, republican, crazy, or just want sex. Or any combination of the above. I've been out since the 80s myself, and still unattached. Too late for me now, even if I lived in a marriage equality state. I, too, took a girl to the prom.
This wasn't a prom, it was the very first dance I had ever been to in my life. I was just too shy to go anywhere where guys might be. He showed me I could do just fine at a dance or anywhere else.
He was married for several years and has a daughter. He still has a great relationship with his ex wife and his daughter.
Hey, it's never too late to find love! Some times when you stop looking, you find it right in front of you. Hang in there, it'll be all good some day. I'll bet you a cocktail that I'm right.
I stopped looking quite some time ago. :)
I'm just not one of the lucky ones that find it. That's just how it goes. Plus I don't drink...so you can have a double...:)
a nice single guy. His partner just broke up with him. He's a good Democrat and he's employed.
Okay, I'll make them alcohol-free cocktails and the bet is still on. :)
I'd love to find a new man for my dearest friend. He is one of the two gay guys that introduced me to my husband (been married for 20+ years), hence my need to empower and protect my GLBT friends.
Actually, I know quite a few single gay men, now that I think about it. PoP, maybe we could have a mixer and Mr. Licious could scope out the situation and see if anything caught his fancy?
..a tad homophobic, doncha' think?
.... "homophobic Republican" is a tautology?
It is no wonder the repugs are on a not too slow march into oblivion. How in the world are you opposed to hate crime legislation anyway?
And since it is Cinco de Mayo I was doing some looking around at Cesar Chavez quotes earlier. I decided to do a little post about one I totally agree with. Check it out:
http://yellingatthemoon.com/2009/05/05/thepol...
The Republicna party is based on hate and fear. Take hate away and all they have is fear.
That's all we got for the last eight years 24/7...you'd think they'd run out.
Imagine the offspring they would have had if King and Bachman had married.
Wouldn't these theoretical offspring be (in the Irish phrase) too stupid to talk?
... have the ability to prosecute for civil rights violation after a state trial misfunctioned?
Just as a military member who does something illegal off-base can be prosecuted by the local authorities, then can be prosecuted for (at a minimum)unsuitable conduct by the military (Federal) authorities. Usually, that happens when the local trial resulted in a conviction, but I've seen people get acquitted "downtown" and still get hammered when they got back to base.
It's just a matter of remembering the thumbnail definition of Double Jeopardy: You can't be tried twice for the same crime BY THE SAME SOVEREIGN.
What a neat, little special place the Republican party finds itself in; defending a bogus war, justifying torture (excuse me, "enhanced interrogation") and protesting against a tough-on-crime law (I thought they never saw a stiff prison sentence they didn't like, except Scooter Libby's).
Their moms must be SOOOOO proud. The party of "NO!!!!" on helping autoworkers and homeowners, and "YES!!!" on torture & bias crimes.
Ya, the unruly formed a party and pretended it was for real, but they hate government too.
I thought double jeopardy meant you couldn't be charged for the same crime twice. What they're talking about is breaking several laws with one act, and then writing it off as double jeopardy, isn't it?
Or do I have this backwards?
I think you're right.
Back to the point: I did not double check, but I believe that bringing prosecutions under federal law following state court prosecutions does not constitute double jeopardy. When the federal government finally started bringing civil rights actions in the 60's a number of federal criminal civil rights actions were prosecuted against individuals who had been acquitted in state court. Problem was one still had to draw from the same jury pool, but convictions were obtained.
The majority of comments so far are disappointing. Remind me of the difference between democrats and those republicans who absolutely love Sarah Palin? Oh that's right one side spends their whole day hating the other side. And the other side spends the whole day hating one side.
I think the focus on double jeopardy is positive. We shouldn't be condescending when a substantive issue is forwarded for debate. I have these very same serious questions. I'm comfortable mocking the right for saying gay people shouldn't act gay, etc. A double jeopardy question, however, should be addressed differently. It is exactly why I have so strongly supported the democratic party. I have the hope that we can address these issues, finally, in the thorough and deliberative manner they should be addresses in. In my mind, we serve ourselves well when we do so.
To me, the dual sovereignty argument made by the author does not cut it. For example, if the charge is murder in state court, the charge can't be murder in federal court. While the feds would say we aren't charging the defendant with murder but with a civil rights violation, it does begin to cut pretty close to the line.
Consider the judicial concepts of res judicata and collateral estoppel. In my mind they should be considered even if they are not as relevant in criminal cases as in civil cases. They are still sound principles. These concepts, if applicable, would preclude most federal hate crime prosecutions because they are brought after what is viewed as an unsatisfactory state verdict. There was an opportunity to litigate and it did not occur. In those instances, a party is usually precluded from pursuing a matter where it may have been able to do sooner. Those principles of law are bedrock and we should try and understand their importance and not be swayed solely by our outrage over a crime. As an example, suppose a state court jury finds a defendant not guilty of murder because his alibi of not being at the scene of the crime is believed. A federal hate crime case is brought and the jury decides he was there. That is a difficult scenario for me to accept. Two different set of facts decided a person's guilt. Juries decide facts not law. We don't have two laws for any one act, we shouldn't accept two fact patterns for any one act. Or what if the defense was able to introduce evidence as to his alibi at the state level. But the federal court denies the admissability of this evidence. Whoa! That is a real problem and that's why we have these concepts governing how issues which have been previously litigated are addressed.
This issue is complicated because we are talking about the interplay between federal and state government, and it is that very interplay which causes the friction with double jeopardy. Surely the state, after bringing a prosecution and losing, could not then bring another charge arising from the same facts and circumstances with no additional evidence. It had a chance to pursue all charges and it chose not to do so. Why should the feds then have the right to bring this new charge? Good government should be the controlling principle. While the legislation is well intended and probably needed, we have the strictest requirement to make sure our government is enforcing laws properly and with the utmost respect for process.
Also, if the federal government is going to pour resources into hate crime prosecutions, shouldn't they also make sure defendants, who now face multiple trials, can defend themselves? Finally, if DA offices have the opportunity to access resources through hate crime prosecutions, is there an institutional incentive to bring hate crime cases and maybe to seek these cases too aggressively?
The solution seems to me to be that if the federal government believes a hate crime has been committed, it may impose a stay or delay on any state criminal case. Once it investigates, it may remove the case, the whole case to federal court. Both the defendant and prosecutor have access to additional funding. The policy reason justifying this approach would be that hate crimes are so virulent and have such damaging effect that it is necessary to bring substantial prosecutions against those accused. Because the prosecution is now so heavily armed, the defendant would also be protected with additional resources.
I was crossing the street at Robertson and Santa Monica (obviously in West Hollywood) and a car drove by and yelled ( Your gonna die you fuckin fag)
I'm not gay. I looked behind me then realized, oh shit, they are talking to me!
Who the hell votes for these people? These are the adults?!?
I swear, if you are against hate-crime laws, guess what: you're FOR hate crime! Plain and simple!
WEAK PEOPLE always need some one for a wiping boy, the US Government and the people that support them with action and money, like parasites, they like to have a villain / Boogie man ( Ben Ladin for Example)this gives people a feeling of supperioraty, a common enemy to gang up on. Giving one, some artificial status to make them feel better then others as they can not grasp the feeling of self inferiority and have the ability to accepting every one for JUST who they are ...RIGHT NOW !!! They have trouble grasping them selves and knowing them selves.
This Hate Crime bill is nothing more then some more crape to divide the American people even more then we are divided now, US Government steers up race differences and brings them forward. Rubbing them in every ones faces, throw out the controled media, making us feel the division again, programing you as they want you to think. GET A MIND OF YOUR OWN !!! They will do any thing to dived us Americans. We have a good country as for race, go to other countries, you will see they don't always like different people, they can even be nasty to there own kind right in public, try India)
Wile you people snicker about other men different from you (your to week to accept differences) You should try becoming Liberal minded and open minded, It does a spirit good. Love, acceptance, hard work, helping others instead of bitching.
The corrupt NWO forces behind the US Government are making there plains, and YOU are not included nor am I !!
You don't see the wall being built around your life and freedoms, slowly fencing you in, you will be so regulated and control and wont even know it is happening to you ! More prisons will be built and more courts, more police, more regulation, less freedoms, you will submit under the many new Draconian Laws that you will be created for you, in the NEW WORLD !!
Will you be able to isolate your self foe 2 weeks if the deadly FLU passes throw your town this fall, are you prepared for that reality ?
This Hate crimes is just a distraction, to whats really coming this hard ass winter....economically, costs, energy, gasoline, food, freedoms and sickness.
Are you ready ?
Are you ready for that BRAVE NEW WORLD ????
The NEW WORLD ORDER !!!
A Police State !!
Was that your dream ??
Stop dreaming about what you want.
That's selfish thought !!
The New World Order !!
It's in your life RIGHT NOW !!!
DON'T YOU SEE IT ???
LOOK AROUND YOU !!
WAKE UP AMERICA !!
.
You told me you'd stay off of sites where I'm hanging out.
Behave yourself, Andy!
I notest Andy seamed rather JUVENILE !!
Is he just a little boy that got lost here on the web site ??
CalgaryLady.....
What can you tell us about the Hate Bill that got passed in CANADA a wile back ?? How has it effected ALL Canadians the up and down and the left and right, as well as center, the religious and not. Oh and the yellow, white , brown, olive and red man as well. (Plz... not just your personal feelings..ok ) !
Speaka di English, Mom. How many times did I tell ya to lose the accent?
and that's one of the reasons I like him.
As for the Hate Bill of which you speak, I'm not familiar with it and thus I'm unable to comment on it. Sorry!
I tell her and tell her to take her lead umbrella when there are contrails above East Chowchowville. Ya know what they say: Wherever there's a contrail, there are microwaves.
Mom's experiencing early stage onset of mind control: Loss of control of the language. Mom used to write like Melville. Now...Ya can't trust a thing she says.
She's your mom, she's allowed to drive ya nuts. That's her job!
:)
I really don't see how beating up a gay person is any different than beating up a straight person (and I say this AS a gay person), or how beating a person from one race is any different than beating a person of a different race..
They are ALL 'hate crimes'
Tom: Is a swastika painted on a synagogue the same thing as grafitti on an overpass? The underlying crime is the same, but the motive and the harm inflicted are not.
Is beating up an Asian American who wandered into a small rural town late at night because the perp wanted to chase "gooks" out of his town the same thing as getting into a bar fight?
Is chaining up an African American man to the back end of a pickup so the perps could start a "race war" the same thing as if they had just run him over while drunk?
Fact is, we stiffen sentences for criminal acts because of the motives involved and the harm inflicted at every corner of our legal code. (That's the difference between manslaughter and first-degree murder.) This is no different.
Well, ok, but will the law only be used in the cases you cite? I've had too much experience with prosecutors using every tool they have to increase charging, in for no other reason than to bolster their bargaining position. There are good reasons to be hesitant about this law.
Are we in such desperate need of this law that it justifies the risk that it will be overused? I remember the guys dragging the black guy off the back of the pickup, best case I've every seen for capital punishment. But I honestly don't know, where are they now? Did they get a sentence like, as you say, "they had just run him over while drunk"? Or are they on death row? Would an extra 10 years on a federal charge have mattered? I don't want to get into whether the black kids in Jena (along with the white kids) could have been charged with a federal hate crime but, at this point in our history, do you really think putting a bunch of high school kids in federal prison is a better way of addressing that mess than what actually happened: the largest civil rights march in ages? Maybe at a time when hate crime laws are possible, they're also less urgently needed.
I think the limitations put into the federal law make it acceptable, but I'm still not overjoyed. I'm no happier with liberals, frustrated by the law's limitations, screaming to lock up people they don't like than when conservatives do it. Talk to a tense suburban mother sometime about the boundless harm done to society and her children by drug abusers.
... these wingnuts always claim that so and so got the death penalty, or that Henderson and McKinney are in prison for life for killing Matthew Shepard, how much worse can they get.
Hate crimes enhancements are not just for murder.
These wingnuts forget this.
The Constitution, which IS the law of the land, protects everyone EQUALLY under the law. This faux bill says "one class of citizen is more important than another". Let's look at it a bit differently. This law will elevate gay rights above blacks, or hispanics, or asians (won't even mention whites). So this law will say hate crimes against blacks are less important than gays, less important than hate crimes against single moms, less important than hate crimes against SHY INTROVERT HIGH SCHOOL BOYS. Think about it. All other situations are just crimes, and actually LESS of a crime. Is that what everyone here believes?
If a gang of blacks attack a 'honkie' and you have evidence to prove that it was hate-race related, you can get a hate-crime conviction.
This law is a two-edged sword. It works with whites on asians as well as asians on whites or gays on straights as well as straights on gays.
The contrails and microwaves have gotten to you. 'Chinese'.
Ahh, forget about it. They've co-opted you.
your mom's such a racist. Must be hard on her with you being half black and all...And it's from her side!
She looks just like Hillary Clinton!:D
you wouldn't be related to Navin R Johnson, would ya?
GOVERNOR
Well, boys, what can I do for you?
STAN
Okay, go ahead and start.
KYLE
I don't start, you start.
STAN
Oh, uhyeah. Hello, Mr. Governor, and
thank you for taking the time to hear
our presentation on hate-crime laws,
entitled, "Hate Crime Laws: A Savage
Hypocracy." Yes, over the past few
years our great country has been developing
new hate crime laws.
TOKEN
If somebody kills somebody, it's a
crime. But if someone kills somebody
of a different color, it's a hate crime.
KYLE
And we think that that is a savage
hypocracy, because all crimes are hate
crimes. If a man beats another man because
that man was sleeping with his wife,
is that not a hate crime?
STAN
If a person vandalizes a government
building, is it not because of his hate
for the government?
TOKEN
And motivation for a crime shouldn't
affect the sentencing.
STAN
Mayor, it is time to stop splitting
people into groups. All hate crimes
do is support the idea that blacks are
different from whites, that homosexuals
need to be treated differently from
non-homos, that we aren't the same.
KYLE
But instead, we should all be treated
the same, with the same laws and the
same punishments for the same crimes
. For in that way Cartman can be freed
from prison, and we will have a chance
to win the sledding race on Thursday.
STAN
That is our presentation. An idea that
we call...
TOKEN
"Hate Crime Laws: A Savage Hypocracy."
GOVERNOR
Hm. That made the most sense of any
presentation I've heard in the last
three years.
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