One Nation Under Double Jeopardy
The Senate is about to vote on Defense Department funding with an expanded federal “hate crimes” bill. This well-intentioned piece of legislation threatens to make violations of the fundamental right against Double Jeopardy a routine practice, as federal courts will now have the power to re-prosecute defendants for what are traditionally state crimes.
The House removed language that the Senate put in place to ensure that the “hate crimes” provisions did not stretch to encompass free speech, threatening to attach criminal liability to core rights of free expression.
This expansion of federal jurisdiction guarantees that high profile cases will be retried until a guilty verdict is obtained to satisfy political factions. This politicization of justice will only harm our courts and our freedoms. The Senate should vote down this threat to the fundamental rights of all Americans.
Now for some quick background reading:
- “Welcome to the new age of Double Jeopardy.”
- Why hate-crime legislation won’t work.
- Podcast: How hate-crime legislation undermines federalism.
Hate Crimes Bill Becomes an Amendment
Unsure about prospects on passing the Local Law Enforcement Hate Crimes Prevention Act as a stand-alone bill, proponents intend to attach it as an amendment to the Department of Defense Authorization bill. As I have said previously, this bill is an affront to federalism and counterproductive hater-aid.
Federal Criminal Law Power Grab
This legislation awards grants to jurisdictions for the purpose of combating hate crimes. It also creates a substantive federal crime of violent acts motivated by the “actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person.”
This is a federalization of a huge number of intrastate crimes. It is hard to imagine a rape case where the sex of the victim is not an issue. The same goes for robbery – why grab a wallet from someone who can fight back on equal terms when you can pick a victim who is smaller and weaker than you are?
This would be different if this were a tweak to sentencing factors.
If this were a sentence enhancement on crimes motivated by racial animus – a practice sanctioned by the Supreme Court in Wisconsin v. Mitchell – then it would be less objectionable if there were independent federal jurisdiction.
Thing is, the federal government has already done this, with the exception of gender identity, with the Federal Sentencing Guidelines (scroll to page 334 at the link):
If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person, increase by 3 levels.
The contrast between a sentence enhancement and a substantive crime gives us an honest assessment of what Congress is doing – federalizing intrastate acts of violence.
If Congress were to pass a law prohibiting the use of a firearm or any object that has passed in interstate commerce to commit a violent crime, it would clearly be an unconstitutional abuse of the Commerce Clause.
Minus the hate crime window dressing, that is exactly what this law purports to do.
New at Cato: Nat Hentoff on Hate Crimes
With the support of President Obama, so-called “hate crime” legislation is on the move in Congress. According to Cato senior fellow Nat Hentoff, laws that punish one time for the crime and another time for the hate violate the First Amendment, the 14th Amendment and protections against Double Jeopardy.
In April, Hentoff spoke at the Cato Policy Perspectives seminar in New York City about the current expansion of hate crime legislation.
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