One of the main features of the running debate over the Local Law Enforcement Hate Crimes Prevention Act -- which, should it pass, would become the nation's first real federal bias-crimes law -- has been conservatives' insistence on digging up new rationales to oppose it, and then clinging to them intransigently, regardless of how thoroughly their arguments get knocked down.
Thus we get spectacles like Sean Hannity with Steve King, flatly dissembling to a national audience about what the legislation does, how it works legally speaking, and repeating the usual Zombie Lies: "this bill creates thought crimes," "it creates special rights," "it protects sexual perverts," and "all crimes are hate crimes." Or Virginia Foxx informing Congress that Matt Shepard's murder was a "hoax."
That's the brazenly dishonest component of the right-wing opposition. Then there's the only somewhat less dishonest approach of the right's more intellectual corners, which does not stoop to naked falsehoods in the fashion of Hannity et. al., but instead relies on a more legalistic, largely libertarian construct that is opposed to the law on the basis of their general opposition to expanding the reach of federal law -- but clings just as mightily to disproven claims and its own preconceived mythology about bias crimes.
Their reasoning runs roughly thus: The law raises the danger of double jeopardy, while the depth of the hate-crimes problem is wildly overstated by liberal civil-rights groups. There is no problem with enforcement or investigation of these crimes. There is no problem, like we had in the South during the Civil Rights era, with juries refusing, largely on the basis of race, to convict people for bias crimes.
Apparently, these people don't bother to read the news. Because fresh in the national headlines this week is the case of the Shenandoah, Pa., jury that apparently indulged in some very current nullification in the case of the hate-crime beating death of a Latino man named Luis Ramirez.
Indeed, it seems the Justice Department is currently reviewing the case to see if federal charges might be warranted:
Two Pennsylvania teens acquitted of the most serious state charges in the beating death of a Mexican immigrant could still face federal charges.
Justice Department spokesman Alejandro Miyar says the civil rights division is reviewing evidence surrounding last summer's fatal fight between high school football players in Schuylkill County and 25-year-old Luis Ramirez.
This is a tricky issue with the law as currently written, because federal prosecutors would have to find that the killers committed a federal violation in order to act on this case. That would not be nearly the issue if LLEHCPA were already law.
One of the major components of the LLEHCPA, as we recently explored in some detail, is the ability of federal prosecutors to step in and file federal charges in cases like these where the state or local prosecutions fail for whatever reasons.
Now, this is where the conservative intellectuals weigh in, claiming the law raises the specter of double jeopardy. You'll call that this was David Freddoso's objection over at NRO -- to which we responded by citing Frederick Lawrence, dean of the GWU Law School, who explains that this falls easily under the rubric of the doctrine of dual jurisdictions:
[T]here 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 wrote to Freddoso and gave him a heads-up about the refutation. He responded thus:
... Substantively, I'd just inform you that the argument over dual sovereignty is not a "right wing meme" or a "zombie lie," etc, but a substantive and serious point that civil libertarians on both the left and right debate regularly. I am also told that in order to support this bill, the ACLU had to make an exception to its usual policy of opposing double prosecutions under dual sovereignty. The ACLU is not usually considered a right-wing organization.
Moreover, I seriously doubt you will be able to find any case in real life today where state and local juries are nullifying hate crime prosecutions by unjustly returning "not guilty" verdicts. Nor will you find hate-crime defendants who have been under-sentenced for lack of hate crimes laws.
This bill is a jumped-to conclusion in search of a rationale. Thanks again.
As for your doubts that I “will be able to find any case in real life today where state and local juries are nullifying hate-crime prosecutions by unjustly returning ‘not guilty’ verdicts: You are seemingly quite unaware of the Luis Ramirez case.
In fact, “jury nullification” was exactly how Avery Friedman described this case on CNN.
Indeed, regarding the ACLU's involvement, this is specifically what Caroline Frederickson, Director of the ACLU's Legislative Office, said on a conference call about this legislation last week:
I am here really to address the claims by some opponents of the bill that this bill would chill free speech and chill free association. Well, we strongly disagree with that. This bill has a provision, that has been in it since 2005, that has enabled the ACLU to support this legislation, because it does protect both civil rights and free speech and association. The bill specifically blocks evidence of speech and association that are not directly related to the crime.
That means that anyone saying we have unleashed the thought police, or thought crimes, is wrong.
... This bill will have the strongest protection against the misuse of a person’s free speech that Congress has enacted in the entire federal criminal code.
Yesterday on a conference call about the Luis Ramirez case, Henry Solano of the Mexican American Legal Defense Fund (MALDEF) said:
This is exactly the kind of situation where, if the interest are not met in terms of law enforcement and prosecution at one level of government, there's another level of government that has the right and responsibility to review and determine whether or not subsequent charges should be brought.
Added John Amaya, a D.C. attorney for MALDEF:
What we've seen here in Shenandoah has really given this bill some legs, because now it's something tangible that people can see and people can feel, and talk about the need, the dire need, to push forward this kind of legislation.
Freddoso is also profoundly wrong when he claims that "Nor will you find hate-crime defendants who have been under-sentenced for lack of hate crimes laws." Quite the opposite is true -- not just in the seven states that have no bias-crime laws, but in much of rural America, where bias crimes routinely go unreported, uninvestigated, and unprosecuted:
[W]hat closer examination -- particularly the Department of Justice study [titled "Improving the Quality and Accuracy of Hate Crime Reporting, conducted by the Justice Research and Statistics Association released and coauthored by Northeastern University's Center for Criminal Justice Policy Research] -- revealed was a reporting system that was deeply flawed, with statistics distorted by widespread failures to report the crimes and moreover, confusion about the differences between the absence of a report and the active reporting of zero hate crimes. The DOJ study, which surveyed 2,657 law-enforcement agencies, reported a "major information gap" in the data: It estimated that some 37 percent of the agencies that did not submit reports nevertheless had at least one hate crime. Worse yet, roughly 31 percent of the agencies that reported zero hate crimes did, in fact, have at least one; about 6,000 law-enforcement agencies (or one-third of the total of participants) likely dealt with at least one unreported bias crime. All told, the Southern Poverty Law Center estimates that the total number of hate crimes committed annually in America is closer to 50,000 than the 8,000 found in statistics.
... [T]he underreportage problem becomes acute with people who have reasons not to go to police, including gay men. This occurs on a massive scale in Latino and other immigrant communities, where even legal immigrants are reluctant to contact police out of fear of being deported.
Of all the factors that cause law-enforcement officers to fail to identify and investigate bias crimes, the most significant, the DOJ study's authors found, was the gap between the victims and the police. The less trust that exists between minorities and their local law enforcement, the greater the likelihood that hate crimes will go unresolved.
... Other studies have likewise observed that the most common cause of this cascade of crime is the failure of police to proactively bridge the gap between themselves and the victims. The JRSA's Joan Weiss, in earlier research, found that the reluctance of victims to report crimes was significantly higher for hate crimes than for other crimes. The DOJ study reiterates this point: "For a multitude of reasons, hate crime victims are a population that is leery of reporting crimes -- bias or otherwise -- to law enforcement agencies."
Most hate-crime victims are minorities in the communities where the crimes occur. In many cases, they have poor English skills and have difficulty asking for assistance; in others, they may simply be unaware that what has happened to them is a serious crime. This is particularly true for immigrants, who may be reluctant to even contact police because of their experience with law enforcement in their homelands, where corruption and indifference to such crimes are not uncommon. Likewise, hate-crime victims may be confused about or unaware of the bias motivation involved, interpreting a threat or assault as a random act when other evidence suggests it was not. At other times, they may be reluctant to tell police about the bias aspects of the acts against them, fearing the police won't believe them or that they simply won't do anything about it anyway. And in the case of gays and lesbians, many are reluctant to report the crimes out of fear they will be forced to reveal their own identities as homosexuals; many more fear (sometimes with good reason) that they will wind up being humiliated and victimized further by police.
Likewise, many minorities in certain communities -- blacks in the South or Hispanics in the Southwest, for example -- have long histories of built-up distrust of law enforcement in their communities, and may simply refuse to participate in an investigation without proactive efforts on the part of police to bridge that gap. Indeed, this level of involvement was almost unanimously the chief factor reported by advocacy groups when queried by the authors of the DOJ study about what most affected hate-crime victims' decision to call or cooperate with police.
Hate-crimes laws are "a jumped-to conclusion in search of a rationale"? Perhaps David Freddoso and his colleagues should take a gander in that looking glass.