May 5, 2009

[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:


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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