Today, President Obama signed into law a bill that will dramatically expand the federal hate crimes law, enabling prosecutors to bring federal charges against many more people who were previously found innocent of hate crimes in state court. The hate-crimes provisions were added to a defense appropriations bill, which the President signed in a White House signing ceremony this afternoon.
The new law dramatically expands the reach of the existing federal hate-crimes law that was already on the books, by getting rid of the requirement that a hate crime affect federally-protected activities to be prosecuted in federal court. It also adds sexual orientation, gender, disability, and transgender characteristics to a law that was originally designed to protect racial minorities.
The hate-crimes bill was opposed by the U.S. Commission on Civil Rights for allowing the reprosecution in federal court of people found innocent in state court. The Commission called the new law a "menace to civil liberties" because it is an end-run around constitutional double-jeopardy protections.
As explained earlier, the bill’s sponsors seek to use it to reprosecute people in federal court who have already been found innocent of hate crimes in state court, taking advantage of the “dual sovereignty” loophole in constitutional protections against double jeopardy. Civil libertarians like Nat Hentoff and Wendy Kaminer thus object to the bill on double-jeopardy grounds. Backers of the bill, like the Leadership Conference on Civil Rights and Commissioner Michael Yaki, supported the bill partly as a way of prosecuting all over again people who were either found not guilty, or who were convicted only of ordinary crimes, while being acquitted of hate-crimes (like the teenagers acquitted of hate crimes in the Shenandoah incident, and the California case of Joseph Silva and George Silva).
Such re-prosecutions can be an enormous waste of money, and grossly unfair to the people who are reprosecuted, driving them into bankruptcy to pay lawyers to represent them all over again when they have already been found innocent in state court after an expensive trial. When the government re-prosecutes someone, it gains an enormous tactical advantage over the defendant from using the prior prosecution as a test-run, even if the defendant is innocent — making a guilty verdict possible even if the defendant is in fact innocent.
The bill also raises serious constitutional federalism issues under the Supreme Court’s Morrison decision.
Passage of the bill was aided by lousy reporting, in which some journalists, like Reuters, depicted the bill as simply a harmless measure to add sexual orientation to the list of protected characteristics covered by the federal hate-crimes law, ignoring its many other, far more important (and dangerous) changes to federal hate-crimes law.
Many supporters of the hate crimes bill want to allow those found innocent 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.”
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, a federal jury acquitted the accused, finding them not guilty.
As law professor Gail Heriot notes, “Some have even called for federal prosecution of the Duke University lacrosse team members–despite strong evidence of their innocence.” Advocates of a broader 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 DNA evidence showed), 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.
The Obama administration has long supported the hate-crimes bill, which it used as a wedge issue in the 2008 election.
As law professors like Jonathan Turley and Eugene Volokh have noted, the Obama administration recently urged restrictions on hate speech at the United Nations, joining in calls to treat such speech, protected by the First Amendment under Supreme Court rulings, as a human-rights violation in violation of international human-rights treaties. In the U.S., college hate-speech codes have been used to discipline students for criticizing affirmative action, discussing the racial implications of the death penalty, and calling homosexuality immoral. In Canada and Britain, hate speech laws have been used to punish religious criticism of Scientology and homosexuality.
Comments
What ever happened to bias free reporting? Your comment on the bias of other articles fails to mention your own bias. You have obviously chosen a side and are defending it. This is not reporting in my opinion. Laws are passed to protect those who were left unprotected and to provide a guideline as to what is acceptable in our country and what is not. Acting on Hate is NOT acceptable! That is the message of this bill. How people (Lawyers) use the law is up to them and is their responsibility. Obama can see the bigger picture and I salute him for it!
Sequoia Elisabeth
What an unnecessary law. Violent crime is already against the law in every state.
Contrary to Sequoia's claim, laws are not supposed to be passed to send a "message" about what acceptable, but rather to actually achieve something important.
This new law is the worst sort of pandering and demagoguery. It is red meat fed by politicians to ignorant people who think in soundbites rather than logic.
The bill also poses a threat to free speech.
The bill was changed at the last minute to allow even otherwise protected speech (speech not involved in planning or deliberately inciting a hate crime) to be punished for supposedly inspiring hate crimes or violence, as long as the government claims a "compelling" interest in banning the speech.
The ACLU cited the last minute changes in quietly dropping its support for the bill, which it had earlier loudly supported.
Wow, Sequoia Elisabeth Carpenter, isn't that a pretentious name.
As for the actual meat of my complaint, this is basically a guaranteed guilty law, it is a form of harassment and government control: if the state returns a verdict of not-guilty, hey, keep the accused in court some more on the federal level until they get a guilty charge. That's not justice, that's LYNCHING. The fact you can't see this is a testament thow childish you are. At least we can say your "nation", which used to be free, when ruled by Men, is finally taking its final nosedive and we'll be rid of your rapidly degenerating mess. Imagine the rape, murder and HATE CRIMES you'll have to suffer then. Ahem, you might finally get cut down, sequoia. Heh
Someone tell me again why we need more government in our lives. I just love these people that claim to want equality and color blindness and then force people to take note of a persons race. So if I have this right. If an attacker hauls off and punches a black guy in the face its all good. But if he calls the guy a lazy SOB before he punches his face he is using an old black stereotype and can be prosecuted in federal court a second time if he is found guilty in a state court. So much for equal protection. Dont get me wrong. Im all for not punching people in the face. I just don't agree that some people have a higher value than others.
I always put these things to a simple test. What if we said punching a white male would be a federal crime with more severe penalties than anyone else? Yeah that would be wrong too.
I "hate" Barack Hushpuppy OhBummer. He is a pampered and pretentious pseudo-intellectual fop. He is a glorified, smooth-lyin' dandy. He is a bloodsucking, predatory humanitarian, and a mean-spirited dictator on the make. I'm not saying that he ought to be horse-whipped, but there's no telling WHAT I might say if we actually had freedom of speech in America today. He has been blowing smoke up our tailpipes to get his Healthcare Hijacking fastened on the backs of the American people ---- and I have a message for OhBummer if he succeeds. He can take his Christmas present to the American people and stuff it where the sun don't shine.
The funny thing about hate crimes bill. It is completely needed...in liberal hotspots. Places like San Francisco have a 10% conviction rate. They couldn't convict OJ if he was on camera. They could figure out away to get someone off...who pleads guilty. They suck. So liberals automatically think the rest of the world must need help in convicting criminals. It's totally understandable for incompetence to lean on the belief that everyone is just as incompetent as they are.
Unfortunately, for the incompetent crazies, Texas has no problem nor will they ever have a problem with convicting people. Nor will any conservative state ever need hate crimes bills because they aren't crazy. They logically don't sympathize with murders and convict and kill them. They would kill them faster, but liberals from SF try their best to make their system just as incompetent as theirs.
I completely understand why the crazies want hate crimes. They need 2 or 30 times to actually convict someo
IT'S JUST ANOTHER BRICK IN THE ROAD TO CHRISTIAN PROSECUTION AND EXECUTION. THE POLITICALLY CORRECT ADGENDA MARCHES ON.
What a nightmare. Free speech is all but gone.
Hate crime. And that's as opposed to an "I really really like you" crime?
A curious law with radical implications. We watch as individual liberty and states' rights continue to be chipped away by this administration, hell bent on classifying so-called disenfranchised groups and milking them for more power. It's all about power.
"Sexual Orientation"?
So now, if a man finds someone having sex with his four year old child and beats him up, that's a hate crime, right?
It's nice to have some classes of people more equal than others.
This will also make the Male Abortion ruling safe (i.e. disownership of a fetus by the father, like women can do). The ruling in Dubay v. Wells stated that the government has no responsibility to treat different classes of people the same way. The Equal Protection Clause only applies to women, thank goodness. What if men could just do whatever they wanted?! That would be the worst kind of anarchy!
OMG!! A bill so patently oppressive, unjust, and easily abused that even the ACLU couldn't bring itself to support the bill in final form? Hell hath frozen over.
I understand the arguments against hate crimes legislation and, as a lifeling flaming liberal, I'm on the fence about it.
A "regular" crime (assault, battery, etc.)seems to be one thing, while a crime committed just for the purpose of expressing one's hatred for the victim's race, sex, lifestyle, or whatever seems to be more distasteful.
It's one thing for me to beat you up because you did something that made me angry, but another to beat you up because of some irrelevant personal characteristic.
I don't know if I'm making myself clear, but it seems that blatant hate crimes should be punished more harshly.
Speech is never a crime.
Threats and actions can be.
I neither agree nor disagree with Pat O'Malley about the general merits of hate-crimes legislation in general (like state hate crimes laws -- most states have them).
What I object to is the FEDERAL hate-crimes law, especially in its radically-expanded form as result of the new law.
Even if a state has a hate-crimes law and vigorously prosecutes people under it, a person who is found innocent in state court can be prosecuted all over again in federal court, under the federal hate-crimes law. That, I totally object to.
The only local hate-crimes laws I criticize are ones that apply to speech, like the arrest of a teenage girl in Chicago for "hate crimes" for passing out anti-gay handbills.
As I explained in my law journal article in the Cato Supreme Court Review (which is perhaps the most frequently cited law review article on the Morse v. Frederick decision), I think even teenagers have free speech rights.
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