On April 23, the House Judiciary Committee voted 15-to-12 to approve a dramatic expansion of the federal hate-crimes law. The bill, H.R. 1913, would add gender, sexual orientation, and transgender characteristics to a law originally designed to protect racial minorities. It also greatly expands the law’s reach over local offenses typically handled by state prosecutors, by eliminating many jurisdictional limits.
The bill would allow people who have been found innocent of a hate crime in state court to be reprosecuted in federal court. Many supporters of the federal hate crimes bill want to allow people who have been found innocent of a hate crime in state court to be reprosecuted in federal court. As one supporter put it, “the federal hate crimes bill serves as a vital safety valve in case a state hate-crimes prosecution fails.” The claim that the justice system has “failed” when a jury returns a not-guilty verdict is truly scary and contrary to the constitutional presumption of innocence and the right to trial by jury.
But it is a view widely shared among supporters of the hate-crimes bill. Syndicated columnist Jacob Sullum pointed out in 1998 that Janet Reno, Clinton’s Attorney General, backed the bill as a way of providing a federal “forum” for prosecution if prosecutors fail to obtain a conviction “in the state court.” Similarly, MALDEF and the Leadership Conference on Civil Rights want to reprosecute teenagers who were found innocent of a hate crime against an illegal alien in a Pennsylvania state court.
As Sullum noted, the federal hate crimes bill exploits a loophole in constitutional protections against double jeopardy, known as the “dual sovereignty” doctrine. The Supreme Court created this loophole in its 5-to-4 Bartkus decision.
Supporters of the hate crimes bill also see it as a way to prosecute people even in cases where the evidence is so weak that state prosecutors have decided not to prosecute. Attorney General Eric Holder has pushed for the hate crimes bill as a way to prosecute people whom state prosecutors refuse to prosecute because of a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each case, a federal jury acquitted the accused, finding them not guilty.
Advocates of a broad federal hate-crimes law have pointed to the Duke Lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players — even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina’s attorney general conceded, and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations.
Civil libertarians like Wendy Kaminer have criticized the federal hate-crimes bill for taking advantage of a loophole in constitutional double-jeopardy protections. Law professor Gail Heriot, a member of the U.S. Civil Rights Commission, has also criticized the bill for circumventing protections against double-jeopardy.
I wrote earlier about how the federal hate-crimes bill backed by Obama and Congressional leaders would violate constitutional federalism safeguards, such as the Supreme Court’s decision in United States v. Morrison (2000), and how it would allow people found innocent in state court to be retried in federal court.
Supporters of the hate-crimes bill have all sorts of lame rationalizations for disregarding not-guilty verdicts. Hate-crimes activist Brian Levin, who testified before Congress, claims reprosecutions are needed because local jury pools are biased. NOW Legal Defense Fund told Congress that reprosecutions are appropriate if local prosecutors had “inadequate resources” or were of “questionable effectiveness.” (These rationalizations make no sense and have no principled limits: there is no evidence that state juries are more biased than the federal juries that would hear federal hate-crimes cases, or that they are typically biased; and even well-funded prosecutors have complained of having inadequate resources).
Given the politically-charged nature of many hate-crimes trials, Kimberly Potter of New York University was probably right when she told Congress back in 1998 that if the federal hate crimes bill is enacted, “the acquittal of [hate-crimes] defendants in state court will frequently trigger demands for federal prosecution.”
The bill’s sponsors seldom talk about that controversial aspect of the bill, however, when addressing the general public. Instead, they trumpet the fact that the hate-crimes bill would include gays, lesbians, and transgendered people among the classes of people it covers.
The bill’s supporters, such as the National Center for Lesbian Rights and the ACLU, claim the law is needed because of the case of Angie Zapata. Zapata is a transgender woman whose lover killed her when he found out she was biologically a man. But this argument makes little sense, given that Zapata’s killer was swiftly convicted and sentenced to life in prison without the possibility of parole by a Colorado state court, which found the killer guilty of both murder and hate crimes. (The federal hate crimes bill does not provide for the death penalty, and its maximum penalty is the same one that Zapata’s killer got: life without parole).
The bill’s Senate sponsors named the 2008 version of the bill after Matthew Shepard, a young gay man who was killed in Wyoming. That was a cynically clever strategy. Hate-crimes laws are fairly popular: 45 states have hate crimes laws, and most of them ban hate-crimes based on sexual orientation.
But precisely for that reason, a federal hate-crimes law is duplicative and unnecessary. Moreover, even the few states that don’t have hate-crimes laws, like Wyoming, still punish hate criminals under their laws against murder and assault. The killers of Matthew Shepard were given life sentences, which is the maximum penalty available under the federal hate-crimes bill. (Ironically, the Wyoming prosecutor wanted them to get the death penalty, while liberal groups like Lambda Legal, which supports the federal hate-crimes bill, oppose the death penalty in all cases). There is no evidence that any state gives people who commit hate crimes lesser sentences on average than people who commit similarly violent crimes not motivated by bias.
There are plenty of reasons to oppose the federal hate crimes bill, which is known as the Local Law Enforcement Hate Crimes Prevention Act of 2009. But since it was used as a political wedge issue in the 2008 election by both the Democratic Party and President Obama, who support it, there is little doubt that it will pass Congress and be signed into law by the President.
The ACLU long opposed the loophole in Constitutional double-jeopardy protections that the bill is designed to exploit. But it switched its longstanding position in order to back the federal hate crimes bill, apparently believing that civil-liberties must be sacrificed in order to fight hate.
The ACLU’s support for the federal hate-crimes bill is hypocritical for another reason: the bill would circumvent double-jeopardy protections recognized by a treaty called the International Covenant on Civil and Political Rights (ICCPR), which the U.S. ratified in 1992. The ACLU has also long argued that the United States should not only comply with that treaty but give it a very expansive interpretation.
Article 14 of the treaty specifically prohibits double jeopardy, without any exception for the loophole relied on by supporters of the federal hate crimes bill, mandating that “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted.”
But the ACLU conveniently ignores the treaty when it comes to the federal hate-crimes bill, even though the ACLU has sought to stretch the treaty’s language to achieve a host of liberal political goals, such as mandating “affirmative action” in the U.S. The ACLU also has argued for an expansive interpretation of the treaty to require benefits for illegal aliens. For example, the ACLU criticizes the U.S. Supreme Court’s decision in the Hoffman Plastics case, which refused to award illegal aliens backpay against employers who fired them. The ACLU’s bizarre interpretations of the treaty conflict not only with its language, but also with the longstanding practices of most ICCPR signatory countries, which neither practice affirmative action nor give benefits to illegal aliens.
Comments
Right, the whole local jury of peers is biased, there's no evidence, the prosecution failed, so just let leviathan do it where they can make up whatever they want and don't you DARE try to oppose big brother...
This is why we have 2nd amendment rights.
The nation is now INSANE at the jackboot government level and the utter and absolute attempts to make every excuse up to never, ever follow the constitution again.
The lies are insidious and multiple, the excuses blatantly untenable, and the focus of power and tyranny unmistakeable.
Whatever they want, total tyranny, total control, over everything and everyone, and now thoughts are an additional crime, if they fall under some special protected category.
Ok, I want the hate crime against whites, and specifically white males, and add Christian to that, since now they are supposedly the problem that started all this and made this nation, and should be most hated for their old boy power structure. The most hated in society today - and therefore, in need of these very protections, more so than anyone else.
How about that ?
Yes, we know the answer - NEVER ! Most are laughing and calling it ridiculous...
This whole thing disgusts me, i can't even read all the article it's so irritating.
When OJ was acquitted, they decided civil law was a whole other ballgame, and they just went right ahead there.
When the fed or tyranny powers don't get their conviction - they dimiss jurors, hide exculpatory evidence,deny evidence, play to the press, make announcements, leak lies, and take second, third and fourth shots in shopped or different venues - and if they declare their own trial illegal because of lying police, prosecutors, witnesses sleeping with the DA, or whatever crime the judge pulled, they claim they get a DO OVER - yes they have an endless number of do-overs already.
It is amazing really - it is absolutely amazing.
Now people are convicted of double murders with no bodies, no murder weapons, no eye witnesses, and fabricated evidence and lies in the press and by the authorities.
I bet what doesn't get aired is even worse.
Now we have the ban on emotion and thoughts - the perfect Orwellian law - a hate crime - whereby they decide based upon your attitude or mindset how to really put the coals to you, in public, with immense HATRED spewed up in the courtroom - and endless HATE FILLED OUTRAGE - where EVERYONE must denounce the suspect as not even human, or be ostracized.
Like I said, it's INSANE, not to mention absolute HYPOCRISY of the highest order.
Hate the hater so much, with so much vile putridity, that there must be a special public high profile punishment and smearing to the corners of the earth... PURE HYPOCRISY IN LAW.
ABSOLUTELY THE HIGHEST FORM OF IRONY IMAGINABLE. COULDN'T BE WORSE.
More evidence that federalism is dead in America. Soon it won't matter where you live - Anchorage, Honolulu, Miami, or Boston. Your life will be micromanaged by your masters in Washington, and your state government will merely be an appendage of the national government (since calling it the "federal government" is now an anachronism).
My concern in the above article is about criminal proceedings -- people should not be CRIMINALLY reprosecuted in federal court after being acquitted in state court.
CIVIL proceedings are a different matter, because the burden of proof in civil cases is lower. In criminal cases, the state loses unless it can show the defendant is guilty beyond any reasonable doubt. In civil cases, the defendant is liable if he is merely more likely than not to have committed the deed alleged. That's a much lower standard of proof, because the defendant's liberty is not at stake.
I have no problem with people being civilly sued for hate crimes in either state court or (if diversity jurisdiction exists) federal court even after they were acquitted.
But the federal hate-crimes bill goes way, way, way beyond that. It allows people to be criminally reprosecuted over again based on weak evidence, which in the real world means not just a terrifying ordeal, but also bankruptcy for all but wealthy people (how many people could afford to pay a lawyer to represent them in two successive criminal trials -- which could easily cost them over $100,000 in each?)
I find you okaying civil proceedings in the manner you have ridiculous. Tell me, what happens if you defy a civil court ? What happens if you don't show up - or they charge you with some rule break in the proceedings ?
The trial itself is a denial of your liberties, not to mention the constant terror on your finances in any judgement, let alone paying for a defense.
Do you think your liberties are in tact when any part of leviathan summons you in under force of law ?
This is the problem, people keep letting one after the other go, until there's nearly nothing left put second prosecutions - and since all the prior tricks have their various excuses, the next trick is eventually adopted and made law.
How are you free or your liberty protected when LESS proof is needed against you, and they garnish or demand whatever they decide that follows a person the rest of their lives ?
How is that freedom after acquittal ?
You assume the Constitution only says what it does because "twice means you'll be imprisoned"...but - or - it's OK to go on and on with it, because gee, civil means you aren't going to be tossed in the klinker - ya know, and anything but that is ok... time, money, judgements, YEARS of dealing with the system hauling you and your lawyers into their courts to go over it endlessly and they need even less "proof".
What a shame. What a foul, unfair, ridiculous shame. See, now they have another one, and finally, you have a problem, because it's not just a sick partial breach, but a total one.
We cannot keep claiming everything we have is fair anymore - too much information, too much knowledge, and too many instances already incribed in law, and things like the above used in a matter of course way - with no restaints - far too often. Now it's a political prosecution for a political reason.
I'm disgusted with so many supporting a double jeapordy with the civil end as well. It's everything as bad EXCEPT incarceration - although they can just drain your ability to live and your lifestyle forever - always over your head - even after an acquittal... and that's freedom ? That's fair ? That's justice ? WHAT A JOKE, what a bad joke indeed.
Four members of the U.S. Civil Rights Commission urged Congress not to pass the federal hate crimes bill (H.R. 1913). In an April 29 letter to Congressional leaders, they point out that it would circumvent Constitutional protections against double jeopardy, giving the federal government the power to reprosecute people in federal court even after they have been found innocent of rape and other “hate crimes” in state court:
“We believe that LLEHCPA will do little good and a great deal of harm. Its most important effect will be to allow federal authorities to re-prosecute a broad category of defendants who have already been acquitted by state juries–as in the Rodney King and Crown Heights cases more than a decade ago.”
“We regard the broad federalization of crime as a menace to civil liberties. There is no better place to draw the line on that process than with a bill that purports to protect civil rights.”
“While the title of LLEHCPA suggests that it will apply only to “hate crimes,” the actual criminal prohibitions contained in it do not require that the defendant be inspired by hatred or ill will in order to convict. It is sufficient if he acts “because of” someone’s actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity or disability. Consider:
*Rapists are seldom indifferent to the gender of their victims. They are virtually always chosen “because of” their gender.
*A robber might well steal only from women or the disabled because, in general, they are less able to defend themselves. Literally, they are chosen “because of” their gender or disability.”
“If all rape and many other crimes that do not rise to the level of a “hate crime” in the minds of ordinary Americans are covered by LLEHCPA, then prosecutors will have “two bites at the apple” for a very large number of crimes.”
The Civil Rights Commissioners signing the letter were law professor Gail L. Heriot; former Office for Civil Rights head Gerald A. Reynolds; former Justice Department lawyer Todd Gaziano; and National Labor Relations Board member Peter N. Kirsanow. The letter was addressed to House Speaker Nancy Pelosi, and Congressmen John Boehner, Eric Cantor, James Clyburn, and Steny Hoyer.
The letter is available at www.marylandthursdaymeeting.com/
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