Philadelphia Inquirer Op-Ed on Hate Crimes Gail Heriot

I'm in the Philadelphia Inquirer today with an op-ed on the federal hate crimes bill.  Here's the version as I originally wrote it.  The printed version was pared down slightly:

    If some day I become the victim of a barbaric crime, please don’t name a statute for me.  Send flowers instead.  The problem is that legislators are understandably hesitant to speak out against proposals named for victims--like Megan’s Law or Jennifer’s Law.  They fear voters will view their opposition as callousness toward the victim and the victim’s family.  The result is often ill-considered legislation.

    So it is with the proposed Matthew Shepard Hate Crimes Prevention Act, which Senate leaders have now attached to the annual defense authorization bill, making it almost certain to become law.   Like its House counterpart, which has already passed, it is an exercise in political grandstanding.

    To begin with, it is a fix in search of a problem.  It criminalizes only conduct that is already illegal under state law.  Indeed, all but a tiny number of states have additional hate crimes statutes, so most such conduct is already doubly prohibited.  No one claims that states are not enforcing the law.  To the contrary, Wyoming prosecutors have been praised for swiftly obtaining life sentences for Matthew Shepard’s killers.

    The most important difference the proposal would make is to allow federal authorities to re-prosecute defendants who have already been acquitted in state courts.  But this is hardly cause to support the bill–and indeed the U.S. Commission on Civil Rights opposes it for exactly that reason.

    Most Americans learn as schoolchildren that the Constitution’s Double Jeopardy Clause forbids the government from prosecuting them twice for the same offense.  What they don’t learn about is the dual sovereignty exception, which holds that double jeopardy protections do not apply when separate sovereign governments prosecute.  An acquittal in state court therefore does not preclude a federal prosecution, and vice versa.

    While there may be good reasons for the dual sovereignty exception, it has always been troubling.  Up until fairly recently, however, the opportunities for mischief have been limited, since there were so few federal offenses on the books.  But with the explosive growth of the federal criminal code in the last few decades, this is no longer true.  Instead, we are facing the real possibility that a second bite at the apple will be routinely available whenever federal prosecutors don’t like the outcome of a state case or sense the opportunity to make headlines.

    There is no better place to draw the line than with this politically-charged proposal.  Despite its title, it does not require that the defendant be inspired by hatred in order to convict.  It is thus not a hate crimes law at all. It is sufficient if the defendant acted “because of” someone’s actual or perceived race, religion, national origin, gender, sexual orientation, gender identity or disability.  But consider:

*Rapists are seldom indifferent to the gender of their victims.  They are always chosen “because of” their gender. 

*A thief might well steal only from women or the disabled because, in general, they are less able to defend themselves.  Literally, they’re chosen “because of” their gender or disability.

    This is not just sloppy draftsmanship.  Justice Department officials wanted something susceptible to broad construction and have strenuously resisted efforts to tighten the language.  They apparently like the proposal’s broad sweep, because it gives them discretion.

    Bill supporters cite the “brilliance and integrity” of Attorney General Eric Holder as reassurance that the broad discretion conferred by the statute will not be abused.  But the statute will be around long after Holder is gone.  Moreover, all prosecutors are subject to political pressure.  Two years ago, thousands of protesters, led by the Rev. Al Sharpton, descended on the Justice Department to demand more vigorous prosecution of hate crimes.  Some have even called for federal prosecution of the Duke University lacrosse team members–despite strong evidence of their innocence.  Can anyone seriously contend that prosecutors will never succumb to such pressure?

    A century ago, Americans were in the throes of a panic over “white slavery”-- then a common term for forced prostitution.  They weren’t entirely wrong either.  Forced prostitution did exist, though it was not nearly so common as they were led to believe.  Similarly, advocates of this proposal are not entirely wrong about hate crimes.  After some melodramatic posturing, Congress passed the Mann Act in 1910, a broad criminal prohibition on transporting women across state lines for “immoral purposes.” Eventually, it became a tool for abuse.  Among those charged were Charlie Chaplin, Frank Lloyd Wright, boxing champion Jack Johnson, poet George Barker, and University of Chicago sociologist William I. Thomas, none of whom was engaged in forcing women into prostitution.  Johnson’s “crime”, for example, was to have a white girl friend.

    Our criminal justice system is designed to err on the side of failure to convict the guilty.  In doing so, it helps ensure that the innocent will remain free.  The wholesale federalization of crime, of which the vague and misleading hate crimes proposal is a prime example, is a threat to that system, because it effectively removes double jeopardy protections.