Marty Lederman has this new post up at Balkinization on why he thinks the new hate crimes legislation is constitutional. (Okay, so technically it’s an OLC opinion signed by Marty Lederman that Jack Balkin posted over at Balkinization, rather than just a blog post. Same idea, anyway.)
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Hans Bader says:
I think portions of the bill do violate the Supreme Court’s Commerce-Clause jurisprudence.
Federalism objections turn on cases like United States v. Morrison, 529 U.S. 598 (2000), which invalidated a civil-remedy for gender-based hate crimes contained in the Violence Against Women Act, and cases like Jones v. United States, which suggested that crimes can’t be reached just by including in the statute a jurisdictional element that requires a remote connection to interstate commerce.
Morrison rejected arguments that gender-based hate crimes could be federalized just because they have a substantial, although indirect, effect on interstate commerce and the national economy. The crimes themselves had to be economic in nature, not merely their aggregate impact on the economy.
The jurisdictional element in the new hate-crimes law, even as to the types of cases to which it applies, is essentially cosmetic, requiring only a remote relation to interstate commerce less than that required in Jones, supra.
Moreover, the Supreme Court’s Morrison decision said Congress can’t ban private hate crimes under its power under Section 5 of the 14th Amendment.
Putting aside constitutional problems, the bill is grossly unfair, since many of its backers seek to use it to reprosecute people who have already been found innocent in state court. (I will explain that in a further comment below).
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October 29, 2009, 5:29 pmjalrin says:
This statute is different from that struck down in Morrison because it specifically requires one of a defined set of connections between the misconduct at issue and interstate commerce, something the VAWA did not do. As such, it is in consistent with a host of laws that have been upheld repeatedly over the last one hundred and thrity years (ranging from the various civil rights laws discussed in the OLC memo to subsequent laws against interstate commerce based organized crime). This is not controversial should be upheld under current law.
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October 29, 2009, 5:52 pmHans Bader says:
The U.S. Commission on Civil Rights aptly called the new hate-crimes law a “menace to civil liberties,” because it will enable prosecutors to reprosecute in federal court many more people who have previously found innocent of hate crimes in state court.
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. (That is separate from the fact that it 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.
Many of the bill’s backers 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, viewing it as insurance in case a state hate-crimes prosecution fails to obtain a guilty verdict. The notion 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” — 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.
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October 29, 2009, 5:57 pmzuch says:
Hans Bader cuts’n’pastes:
All hate-crimes legislation (particularly post-R.A.V.) require an underlying crime. That some are found “innocent” of the hate portion of the criminal act hardly makes them some kind of victim here.
If it’s unfair to make these people defend themselves, it’s unfair to make any person charged with a criminal act defend themselves, including serial murderers.
I do note with some slight amusement that one of the links, Mr. Bader gives is to Catholic.org, which characterises this law as the “Pedophile Protection Act”. Under other circumstances, I’d call that “chutzpah”.
Cheers,
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October 29, 2009, 6:15 pmzuch says:
Hans Bader’s comments seem to have been edited since what I replied to above was posted.
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October 29, 2009, 6:18 pmHans Bader says:
The new hate-crimes law was called a “menace to civil liberties” by the U.S. Commission on Civil Rights, which voted 6-to-2 to oppose the bill. It criticized the bill for allowing the reprosecution in federal court of even more people found innocent in state court, by radically expanding federal hate-crimes law to cover hate-crimes even if they have no connection to any federally-protected activity. The Commission said that the new law will undermine what is left of constitutional double-jeopardy protections.
Many of the bill’s leading backers 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. In response, Civil libertarians like Nat Hentoff and Wendy Kaminer have objected to the bill on double-jeopardy grounds. Backers of the bill, like the Leadership Conference on Civil Rights and Civil Rights 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 a big 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 decision in United States v. Morrison (2000), as I noted above.
Supporters of the hate crimes bill view it as insurance in case a state hate-crimes prosecution does not lead to a conviction. The notion 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” — 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.
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October 29, 2009, 6:18 pmConstantin says:
The backers of this idiocy seem to work under the premise that the enlightened Barack’s going to be running things forever. Prosecution for thought crimes won’t be such a blast when Sarah Palin or some other reactionary fascist steals an election and winds up in charge.
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October 29, 2009, 6:28 pmptt says:
You can tell progress is being made when certain posters edit their comments to remove evidence of, er, “chutzpah”...
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October 29, 2009, 6:28 pmOren says:
This is not a loophole, it’s by design. Think about it for more than a second and you realize that the idea that a State can preempt Federal prosecution merely by bringing an identical charge is incompatible with Congress’ power.
That is, if Congress has the power to enforce a particular criminal sanction (and if it doesn’t, this whole issue is moot), that power cannot be abrogated by the States.
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October 29, 2009, 6:32 pmRyan Waxx says:
The loophole permitting double jeopardy is a real problem, but shouldn’t it be fixed with a more general fix that applies to all crime? Not only would it then help everyone, that way opponents can’t tag the proposers as being pro-hate.
Heck, I’d even go somewhat further and find some way to avoid triple jeopardy: The problem of being found not guilty at the state level, not guilty at the federal level, but nonetheless liable under civil law for the same crime you aren’t found guilty of. Yes, I realize that there are different standards of proof: But surely the prohibition against ridiculous results should say something about a person who’s not guilty of murder or manslaughter but nonetheless liable for the murder they supposedly didn’t commit?
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October 29, 2009, 6:42 pmricky says:
Wouldn’t it be easier just to lock up all the white heterosexual Christian males in advance?
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October 29, 2009, 6:46 pmRyan Waxx says:
Don’t be silly. If you did that, then there wouldn’t be anyone to blame for all the problems in America.
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October 29, 2009, 6:48 pmClayton E. Cramer says:
The difference is that the standard of proof for either state or federal criminal conviction is roughly identical. (There tends to be little language differences from state to state, but the fundamental idea of “beyond a reasonable doubt” is everywhere.) A civil suit has a much lower standard, and so it could be legitimate that someone is found innocent and yet still be held liable. The same is not true when the same crime gets tried twice.
Of course, the whole point of this double jeopardy thing is to simplify going after people who were not just found innocent of a hate crime, but might actually be innocent. The goal of homosexuals is to terrorize people into keeping their mouths shut for fear that they might later get into a fight, and have that previous rude, vulgar, or impolite remark used against them.
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October 29, 2009, 6:50 pmClayton E. Cramer says:
Except that the defendant may only be guilty of getting into a fight with a homosexual because they were fighting over a parking spot. I see no reason why a person should get double jeopardy because the state court failed to prove either the hate crime part of it–or even a crime at all. And yes, while the law applies more generally than just to homosexuals, it’s pretty clear that this is the group that told their submissives that they better pass it, or else.
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October 29, 2009, 6:53 pmClayton E. Cramer says:
But it is incompatible with the protection against double jeopardy.
Until Congress got a little too full of itself passing laws to criminalize matters that took place entirely in one state, and involving participants from that state, this would not have been an issue. I think back to the famous letter that J. Edgar Hoover wrote in the 1950s to someone who asked the FBI to investigate and prosecute an incident of oral sex, and his famous reply that the FBI lacked that authority “unless that act of oral-genital intimacy in some way obstructed interstate commerce.” (Hoover’s tongue was certainly firmly in cheek, probably Clyde Tolson’s.)
The motivation to prosecute civil rights violations because Southern state juries would rapidly return innocent verdicts in lynch cases was understandable. But we’re going to need some evidence that there is a widespread problem with state juries refusing to convict guilty people for hate crimes. The bisexual guy that murdered Mathew Shepard got life. What more was the judge supposed to do?
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October 29, 2009, 7:00 pmRikiTiki says:
Their submissives? Hilarious. Conservatives like to argue that the gay agenda inflates statistics on how many people are homosexual, when in reality only like 2 — 4% of the population is homosexual. And now they want to argue in addition that they are so powerful apparently that they can force Congress and the President to do their bidding.
Can’t have it both ways...if gays are only 2 — 4% of the population, it’s certainly not their bidding that got this done
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October 29, 2009, 7:03 pmRyan Waxx says:
You mean there’s no such thing as voting blocs and organizations that cause factions of people to have larger voices in the government than their mere numbers would normally allow?
Good: then democrats can stop bleating about the influence of the rich, since they have low numbers in the population.
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October 29, 2009, 7:10 pmRikiTiki says:
Clayton -
There are significant examples of people who have committed hate crimes getting light sentences. Robert Hannah, just two weeks ago, received a six month sentence for killing a gay man after using a gay panic defense. And this was in the District of Columbia, which is about as liberal as it gets. While I do not think Robert Hannah committed murder, six months seems like a fairly light sentence based on the facts of that case. Sean Kennedy was killed in South Carolina for being gay and there, an eight month sentence. The fact that some juries would even be allowed to hear a gay panic defense and be given involuntary manslaughter or second degree murder in cases that would otherwise not have had those as options is exactly why there is an issue Congress is addressing.
Matthew Shepard’s murderer is very much an exception.
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October 29, 2009, 7:12 pmRikiTiki says:
Ryan — money goes a long way to buy influence. I think the rich have a lot of that.
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October 29, 2009, 7:14 pmADF Alliance Alert » Lederman on the Constitutionality of Hate Crimes Legislation says:
[...] Volokh Conspiracy: “Marty Lederman has this new post up at Balkinization on why he thinks the new hate crimes legislation is constitutional.” [...]
Ryan Waxx says:
You’re right! The only people who have influence greater than their numbers are rich people! Thanks for your insight, I’m sure it will enrich the discussion.
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October 29, 2009, 7:33 pmAnatid says:
I was under the impression that in order for a crime to be classified as a hate crime, the crime had to be committed specifically because the victim belonged to a marginal group. If you got into a fight over a parking space with a homosexual because you believe that homosexuals are second-class citizens who shouldn’t be allowed to park near the front of the parking lot, and you expressed this view violently, then it would be a hate crime.
Otherwise, you’re just fighting with a guy over a parking space, and the fact that he’s a homosexual is probably never even going to be mentioned.
You make it sound like an entire group of people are all highly likely to falsely play the victim card in order to screw over innocent straight guys.
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October 29, 2009, 7:43 pmrichard says:
But it is incompatible with the protection against double jeopardy.
The argument that double jeopardy protects against state and federal prosecutions for the same offense has been made for at least one hundred years; it has been uniformly rejected because the state and the federal government are separate sovereign entities. And it is very clear that the founding fathers didn’t think that a state prosecution of an act barred federal prosecution of the same act. Under any theory of originalism, original intent, etc, the double jeopardy clause does not prevent dual prosecutions.
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October 29, 2009, 7:48 pmyankee says:
Is there an eye-rolling emoticon I can use for comments like this?
Apparently your idea of being a white heterosexual Christian male involves committing crimes of violence against people because of their race, gender, sexual orientation, gender identity or disability. That makes you a sociopath who I want the police keeping close tabs on.
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October 29, 2009, 7:51 pmrichard says:
ricky: Wouldn’t it be easier just to lock up all the white heterosexual Christian males in advance?
Don’t be silly. If you did that, then there wouldn’t be anyone to blame for all the problems in America.
Im going to shed a tear tonight for the poor persecuted white heterosexual Christian males in this country, the new American underclass.
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October 29, 2009, 7:51 pmAnatid says:
No, no, it’s the rich white heterosexual Christian males who are the underclass. So many years of hardship and suffering!
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October 29, 2009, 7:53 pmOren says:
I don’t see any way around this. There is some set of things that Congress has the power to criminalize and it makes no sense to allow the States to preempt such laws.
The only conceivable way this works is to give the Federal gov’t the right of first refusal.
Nothing. I would urge the DOJ, as a matter of prudent policy, to let the State have first crack at criminal justice. That said, there is no constitutional reason that the DOJ must do so.
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October 29, 2009, 8:06 pmreadery says:
If a state (Michigan is an example) has separate statutes for mixed-gender and same-gender crime, is imprisoning a person under those statutes a hate crime? After all, since organizing the state’s statutes that way makes it a necessary element of the state crime, the imprisonment is indisputably occurring because of the person’s sexual orientation.
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October 29, 2009, 8:12 pmHans Bader says:
I like Oren’s suggestion that the federal government get the “right of first refusal.” Others have long suggested this, to prevent reprosecutions, while allowing federal policy to be vindicated and not defeated by any hypothetical state laziness in enforcing its own laws against hate crimes.
But this suggestion was ignored by the drafters of the new federal hate crimes law.
They deliberately chose to let the federal government deliberately wait until after a state court prosecution leads to an acquittal, then prosecute the defendant all over again in federal court.
And the purpose of many backers of the bill was precisely to facilitate such reprosecutions of people previously found innocent in state court.
(In endorsing the right of first refusal proposal, I am referring to hate crimes properly within the sweep of Congress’s powers under the Commerce Clause and 13th amendment)
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October 29, 2009, 8:37 pmBlargh says:
The goal of homosexuals is to terrorize people into keeping their mouths shut for fear that they might later get into a fight, and have that previous rude, vulgar, or impolite remark used against them.
BOOGA BOOGA THE GAYS ARE COMIN TO GET YA! get the rifles, pa!
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October 29, 2009, 8:45 pmRyan Waxx says:
richardIm going to shed a tear tonight for the poor persecuted white heterosexual Christian males in this country, the new American underclass.
Being unconcerned about disparate impact of the laws simply because the ethnicity in question doesn’t happen to be the current underclass is a rather peculiar way to run a legal system.
Well, you know what they say: It’s not REALLY racism as long as your target is the one not in fashion at the moment.
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October 29, 2009, 8:47 pmricky says:
I wonder if everyone would be so gung-ho about this bill if it were named “The Channon Christian Hate Crimes Prevention Act”...
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October 29, 2009, 8:53 pmRyan Waxx says:
Have you ever heard the term “chilling effect?” Are you able to debate weather or not that might have a role in the creation in this law... without the monkey sounds, that is?
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October 29, 2009, 8:53 pmMikee says:
I don’t really care why someone unjustifiably hits me over the head with a tire iron in a dispute over a parking space. I care about being hit. I want the attack to be prosecuted. I don’t care about the motives of the attacker.
Neither should the government, except perhaps as an element of proof that the attack did indeed occur as described by the prosecution.
If the government can impugn solely the motive of an individual, absent conviction for any act, does it not seem apparent that not only a chilling effect but the likelihood of active government oppression has been legislated into existence?
Constantin posits misuse by conservatives, or at least some “reactionary fascist.” I would only point out that the folks who created this nightmare are on the non-conservative side of the legislature.
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October 29, 2009, 9:10 pmMark Field says:
If you’re surprised by this, you’ve obviously never read Clayton’s posts about gays before.
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October 29, 2009, 9:28 pmyankee says:
So if liberals give up hate crimes legislation, do we get to use “disparate impact” as a justification for repealing other laws that have a racially disparate impact? I’ll be happy to make that trade.
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October 29, 2009, 9:32 pmRyan Waxx says:
And if you doubt that this could ever happen, look what happened with Canada’s hate crimes tribunals.
But of course, Canadians are totally different from us! It could never happen here.... right?
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October 29, 2009, 9:37 pmConstantin says:
It’s easier to just smirk, I know. But you’ve just described the one group of people now formally and legally treated as second-class citizens by their government. You can say they deserve it, say it’s fair, whatever. But don’t deny it.
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October 29, 2009, 9:38 pmOren says:
You mean they could rule the law unconstitutional?
Sounds fantastic to me!
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October 29, 2009, 9:40 pmRyan Waxx says:
Snark all you want, but I notice you don’t deny it caused havoc for years before sanity returned.
Do you really think that’s a great idea?
Note: And the Tribunals, complete with most of their abusive powers (which are not in this bill we are discussing, admittedly) are still in operation. So it’s not like they can’t cause mischief. Its just that their powers weren’t radically expanded. What a victory!
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October 29, 2009, 9:45 pmRichard Aubrey says:
In the hypothetical parking space fight.
“It wouldn’t be mentioned.”
Are you kidding me? Prosecutors don’t pile everything they can find on? They don’t leak damaging material to the media that they don’t think they can introduce?
Planet check. This is Earth.
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October 29, 2009, 9:59 pmBlargh says:
What’s going to be chilled? Yelling “faggot” while stomping someone into the curb? Gosh, I was wrong about this.
Besides, the concept/fear of “a chilling effect”, while legitimate, is totally separate from the claim that the gay agenda is going to throw us all into gulags, or whatever CC posted.
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October 29, 2009, 10:07 pmRyan Waxx says:
If you think that all “hate crime” involves curb-stomping gays, you really need to start reading something besides the Daily Kos and Andrew Sullivan.
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October 29, 2009, 10:15 pmBob from Ohio says:
Was James Bird a homosexual? I thought he was targeted for being black only. Wonder why they put his name on it?
Liberals don’t think that harsh (death, life w/o parole) penalties deter crime but a few extra years due to it being a hate crime will.
I can see their point, having federal hate crime would have made all the difference compared to lenient Texas law in the Byrd case:
“Berry, Brewer, and King were tried and convicted for Byrd’s murder. Brewer and King received the death penalty, while Berry was sentenced to life in prison.” Wikipedia.
For that matter, it would have made a huge impact in the Shepard case too:
“Henderson pleaded guilty on April 5, 1999, and agreed to testify against McKinney to avoid the death penalty; he received two consecutive life sentences. The jury in McKinney’s trial found him guilty of felony murder. As they began to deliberate on the death penalty, Shepard’s parents brokered a deal, resulting in McKinney receiving two consecutive life terms without the possibility of parole.[15]” Wikipedia again.
I guess these monsters would have really thought twice if they could have faced a couple of years in federal prison. Byrd and Shepard would still be alive I guess if they were protected by today’s new law.
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October 29, 2009, 10:16 pmOrin Kerr says:
Ryan Waxx and several others: Be civil, or you will not be permitted to comment.
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October 29, 2009, 10:17 pmRyan Waxx says:
I’m sorry. I will not be so uncivil as to mention Andrew Sullivan again.
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October 29, 2009, 10:21 pmBlargh says:
Sorry for being a jerk.
Let’s look at it this way. Pecuniary gain, on its own, is legal — and even desirable, “greed is good” right? And murder is wrong. But murder + pecuniary gain is worse. The motive which in other contexts is unpunishable enhances punishment when attached to an illegal act; just like hate crimes.
What’s the distinction? If the pecuniary gain factor is okay, why is it acceptable to include some otherwise-legal motives in figuring punishment but not others?
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October 29, 2009, 10:25 pmBlargh says:
Ha, you’re lucky to still be commenting after that offense
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October 29, 2009, 10:26 pmAnatid says:
But the law does, and so do most people. A homicide is a homicide, but we treat manslaughter, neglect, heat-of-the-moment murder, and premeditated murder differently. It makes sense for lesser crimes; the emotional impact of being beaten by a strange mugger versus a spouse of many years is not the same.
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October 29, 2009, 10:51 pmMalvolio says:
So what are you hoping a second trial would accomplish (even if it could happen, which it can’t, as
Hannah has already been tried in Federal court)? Same sort of jury, same result.
Toby Hunter grabbed Hannah’s crotch, and Hannah decked him, which is pretty much was I or anybody I know would do. Hunter had had a bit to drink, so he fell over and whacked his head and subsequently died. I’m sorry the guy is dead, but a prison sentence of any length and a criminal record is more than enough punishment for Hannah.
Sean Kennedy was punched for being gay. He had also had a bit to drink, so he fell over and whacked his head and subsequently died. Stephen Moller got a five-year sentence, which sounds right to me, but only served a year (I supposed because he was young: 18).
I think the obvious lesson here is not that we need more legislation, but that people should drink less, so when they get punched, deservedly (like Hunter) or not (like Kennedy), they don’t fall over, hit their heads, and die.
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October 29, 2009, 10:52 pmOren says:
That sounds like killing (aka manslaughter) to me.
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October 29, 2009, 10:57 pmJosh Blackman says:
OLC discusses Lopez and Morrison, but curiously did not discuss Raich. Very odd, especially in light of the fact that SG Kagan did not argue that the Commerce Clause justified SORNA in Comstock. Are there movements in the Obama White House to limit Congress’s Commerce Power? I hope so. http://wp.me/pEwAT-lQ
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October 29, 2009, 11:31 pmgeokstr says:
To the left, being able to completely ruin for life someone who has said something they disagree with is a feature, not a bug. Commenters here have outright hoped that John Yoo and others are bankrupted by perpetual prosecution. If Palin had not been in the position to raise lots of money, or had a big book deal, she would have been bankrupted by now by phony ethics charges made up out of whole cloth in an orchestrated campaign, and the left would be gloating over their victory.
Hey, the ends justify the means when you’re trying to exorcise the devil incarnate from this planet, after all.
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October 29, 2009, 11:41 pmSarcastro says:
geokstr has it right. It’s not extremists in general who want to shut down dissent, it’s all liberals.
BOOGA BOOGA THE LIBS ARE COMIN TO GET YA!
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October 30, 2009, 12:20 amAngry_Queer says:
@Malvolio
So if I hit you in the head with a tire iron and killed you but only intended to knock you out then I should be let off with a slap on the wrist? How about if I point a gun and shoot but only intended to knee-cap you? How about then? Or what if I run you down with my car and kill you but only intended to maim you.
Would your ghost rest easy with my summer-camp jail sentence?
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October 30, 2009, 12:39 amRicardo says:
I take it you think that if the city solicitor of, say, San Francisco advises the city they are under no constitutional obligation to grant a protest permit to a pro-life group and can in fact arrest and jail the demonstrators if they turn up, you are OK with the lawyer having immunity from lawsuit?
Under current case law, government lawyers can be held liable for clear violations of constitutional rights stemming from bad faith legal advice given in an official capacity. According to you, that’s a violation of the government lawyer’s First Amendment right to get paid to make stupid legal arguments that get relied upon by government officials. I disagree.
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October 30, 2009, 1:21 amBrett Bellmore says:
Ricardo, there’s at least a potential distinction between being able to prosecute somebody, and being able to ruin them even if the prosecution fails. A major problem with our legal system as it exists, is that it does not make whole people who were subjected to failed prosecutions. And so to be prosecuted IS to be punished, even if you’re acquitted. This systematic flaw in our legal system has often exploited as a way to damage people who are known to be innocent.
I am of the opinion that defendants who are acquitted ought to be made whole by the government that prosecuted them. If I had my say, it would be as fundamental a right as trial by jury: Without it, the power to prosecute is the power to destroy, even the innocent.
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October 30, 2009, 6:57 amDavid M. Nieporent says:
Yes, but that was mostly a moot point, because — as a government of enumerated powers — the federal criminal law had almost no overlap with state penal law. There was very little possibility of dual prosecution.
I suspect that if the founders knew that the federal government would attempt to prosecute ordinary street crime, they would have strengthened the concept of double jeopardy. (Or, perhaps, put in a 9th and 10th amendment to make clear that Congress had no such powers in the first place. Nah. Notwithstanding Lederman’s JohnYooEsqe contortions in an attempt to claim that the 13th amendment covers assaulting gay people.)
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October 30, 2009, 9:59 amMark Field says:
If the federal government is limited to enumerated powers, there’s no power to punish crimes at all. Once you imply the power to punish crimes, then the possibility for overlap seems pretty clear (murder on a post road almost always happened within a state).
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October 30, 2009, 10:11 amHans Bader says:
The Thirteenth Amendment can’t save most of the hate-crimes law, which bans not just race-based hate crimes, but also hate-crimes based on gender, sexual orientation, disability, and transgender characteristics.
Congress can ban private RACIAL discrimination, including hate crimes, under its enforcement powers under section 2 of the Thirteenth Amendment. But that does not include non-racial hate crimes, which are beyond the reach of Congress’s powers under the Thirteenth and Fourteenth Amendments. So held Judge Jackson Kizer in a ruling later upheld by the Supreme Court in United States v. Morrison, 529 U.S. 598 (2000). (See Brzonkala v. Virginia Polytechnic Institute, 935 F.Supp. 779 (W.D. Va. 1996), aff’d, 169 F.3d 820 (4th Cir. 1999) (en banc), aff’d sub nom. United States v. Morrison, 529 U.S. 598 (2000)).
The Supreme Court’s 2000 Morrison decision makes clear that Congress cannot ban non-racial hate-crimes — such as gender-based hate crimes (or, for that matter, sexual-orientation-based hate crimes) — under its powers under the 14th Amendment and the Commerce Clause. See United States v. Morrison, 529 U.S. 598 (2000).
(Hate-crimes with a meaningful link to interstate commerce — more substantial than the new hate-crimes law’s jurisdictional element requires — can be reached under the Commerce Clause. But that requires more than a purely nominal link. Cf. Jones v. United States, 529 U.S. 848 (2000) (jurisdictional nexus had to be real under federal arson statute); United States v. Corp., 236 F.3d 325 (6th Cir. 2001); U.S. v. Rodia, 194 F.3d 465 (3d Cir. 1999) (Becker, C.J., dissenting).
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October 30, 2009, 10:32 amMalvolio says:
If you hit me in the head with a tire iron and didn’t kill me, you shouldn’t be let off with a slap on the wrist.
Intent matters. If you assault someone intending only to injure him and your victim dies, you are punished more severely then if you assaulted him but he survived, less severely than if you were intending to kill him.
Motive doesn’t matter, or it shouldn’t in my opinion. If you assault someone, it makes no difference (again, in my opinion) whether you did it for money, because you were bored, or because you just don’t like heterosexuals.
Nope, at least partly because there are no such things as ghosts.
But your formulation is instructive. If you did kill me with a tire iron, would I lie more peaceful in my grave if I knew you killed me not because your deep-seated hatred of straights, despite your moniker, but merely because you had nothing else to do that night?
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October 30, 2009, 10:38 amjrose says:
Notwithstanding Lederman’s JohnYooEsqe contortions in an attempt to claim that the 13th amendment covers assaulting gay people
Lederman restricted the 13th to race, religion and national origin. The Commerce Clause was invoked for sexual orientation.
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October 30, 2009, 10:43 amjrose says:
Hate-crimes with a meaningful link to interstate commerce — more substantial than the new hate-crimes law’s jurisdictional element requires — can be reached under the Commerce Clause
What makes you think the links to interstate/foreign commerce listed in the statute aren’t sufficiently meaningful?
(i) the conduct described in subparagraph (A) occurs during the course of, or as the result of, the travel of the defendant or the victim—(I) across a State line or national border; or (II) using a channel, facility, or instrumentality of foreign commerce;
(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct described in subparagraph (A);
(iii) in connection with the conduct described in subparagraph (A), the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or
(iv) the conduct described in subparagraph (A)—(I) interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or (II) otherwise affects interstate commerce.
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October 30, 2009, 10:51 amzuch says:
Malvolio:
Ahhhh. The old “she was asking for it” rape defence:
How au courant.
Cheers,
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October 30, 2009, 12:54 pmJoe says:
Bob from Ohio asks about the reference to a racial hate crime in the title. Understandable since the focus of the coverage on this aspect has been somewhat lacking.
The law in question does not only deal with LGBT issues but expands the current federal hate crime dealing with race. This component, as noted by the opinion linked by Kerr, has a 13A hook given it can be seen as a “badge of slavery.”
Supreme Court precedents have noted that crimes against Jews and Arabs are covered too since originally “race” was understood to apply to them too.
As to other groups, putting aside those that arise on federal lands and so forth, the law provides interstate commerce jurisdiction hooks. The run of the mill bias crime probably would not fit under it. The Civil Rights Cases being good law particularly.
As to the value of the law for those who already would get serious punishments ... (1) it provides funds and technical assistance to state prosecutions (2) education and recordkeeping (3) symbolic recognition that certain types of crimes cut to the core of our way of life.
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October 30, 2009, 1:39 pmJoe says:
the federal criminal law had almost no overlap with state penal law. There was very little possibility of dual prosecution.
If you look at the enumerated powers of the federal government, several overlaps pop up. One was of specific concern: federal fugitive slave laws vs. state liberty laws and such.
But, any number of others can be imagined, including involving currency (see, e.g., Fox v. Ohio), violence on postal roads, crimes involving federal officers or institutions, matters involving commerce, and so forth.
If the federal government is limited to enumerated powers, there’s no power to punish crimes at all.
“to define and punish Piracies ...” ... “to provide for the punishment of counterfeiting ...” the treason clause would seem to be three
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October 30, 2009, 1:47 pmJohn M. Perkins says:
While I oppose hate crime legislation because it adds an element to crime making it harder to convict, and while I found no double jeopardy issue in dual sovereigns prosecuting particularly with jury nullifications because of the status of the victims, and while noting one poster falsely believes that state criminal cases find defendants “innocent” rather than “not guilty” ....
I do like that OLC memorandum are readily available to be posted and discussed on the internet.
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October 30, 2009, 2:05 pmJoe says:
I oppose hate crime legislation because it adds an element to crime making it harder to convict
The locality already has the ability to target an assault or act of vandalism in the first instance. The hate crime adds a symbolic value plus in various cases an additional penalty that adds to the severity of the offense because the crime now is worse than before, which warrants proving that element (see, Apprendi v. NJ).
In the federal context, the element is necessary in various cases for it to use its power to prosecute in the first instance since the feds don’t have a general power to fight crime. But, if localities do not have the resources or wherewithal to protect rights of national import, such efforts are appropriate.
So, not sure about this criticism.
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October 30, 2009, 2:35 pmShelbyC says:
If the facts are as reported by other commentors, it sounds like Hannah got a much stiffer sentence than he should have. It sounds like was reacting to a sexual assault. If a woman hauled off and whacked a guy who had just grabbed her boob, and he fell over and died, she’d probably go free, and rightly so.
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October 30, 2009, 2:59 pmMark Field says:
Fair enough.
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October 30, 2009, 3:27 pmAndrew Hyman says:
I’ll agree with Hans Bader on this. Mr. Lederman’s Thirteenth Amendment argument is unpersuasive. The Thirteenth Amendment says:
Enslaving someone is always a hate crime, but not vice versa. That seems elementary. Congress should leave this matter to the states. If particular states are giving woefully inadequate attention to solving certain hate crimes, then those states should be slapped with a lawsuit under the Equal Protection Clause.
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October 30, 2009, 8:38 pmMark Field says:
Put down your keyboard and walk away from the precipice.
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October 31, 2009, 10:54 amDavid Nieporent says:
Lederman’s logic is:
1. The thirteenth amendment bans slavery.
2. This means it also bans things like slavery, even if by another name.
3. This means it also bans things that impose some slavery-like conditions on blacks.
4. That includes things like organized racial terrorism of the sort that the post-Civil War KKK represented, since said terrorism was designed to keep blacks “in their place,” so to speak.
5. A few drunk white racists beating up a black guy is sort of a little tiny bit like organized racial terrorism.
6. Therefore, the thirteenth amendment can reach it, too.
7. Even though the thirteenth amendment isn’t literally about race, slavery was about race, so the thirteenth amendment really is about race.
8. Therefore, any racial violence is covered by the 13th amendment, even though slavery at the time of the thirteenth amendment was only about blacks.
9. Race was defined expansively in the 19th century; therefore, violence motivated by just about any characteristic — race, religion, national origin, ethnicity — qualifies.
That was the logic with respect to most hate crimes; with respect to sexual orientation, it was more like this:
1. The Constitution says that Congress has the power to regulate commerce among the several states.
2. The Supreme Court said that intrastate crimes don’t qualify.
3. Neither of them really meant it, and the federal government can do anything it wants; when the Constitution says “regulate commerce,” it actually meant “pass laws that use the word commerce.”
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October 31, 2009, 11:27 amjrose says:
Race was defined expansively in the 19th century; therefore, violence motivated by just about any characteristic — race, religion, national origin, ethnicity — qualifies.
Not “just about any characteristic” was considered a race in the 1860’s.
The Supreme Court said that intrastate crimes don’t qualify
No. It said they would qualify if there was a jurisdictional element that might limit the reach of the statute to instances that have an explicit connection with or effect on interstate commerce.
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October 31, 2009, 12:23 pmanon says:
“...explicit connection with or effect on interstate commerce.”
It seems this definition already does include, or will eventually, every aspect of a modern society.
Perversion of the commerce clause has resulted in a system whereby adding a jurisdictional element to an act provides the feds with enough power so that the enumerated bit of the constiutution can be done away with altogether.
Referencing the current statute, I take it to mean a person can be charged with a federal crime when the area of jurisdiction is satisfied, and yet another person committing the same act not in an area of jurisdiction cannot be charged.
The congress is gumming it up again with another unworkable statute that can certainly be resolved by taking the guesswork out of it altogether by simply reinventing the connection or effect of the commerce clause.
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October 31, 2009, 1:12 pmjrose says:
Referencing the current statute, I take it to mean a person can be charged with a federal crime when the area of jurisdiction is satisfied, and yet another person committing the same act not in an area of jurisdiction cannot be charged
Yes. Why do you think that is unworkable?
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October 31, 2009, 1:28 pmanon says:
It’s Unclear. Same crime, different federal responses.
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October 31, 2009, 1:36 pmjrose says:
I don’t see how having the crime prosecuted only when the jurisdictional element is satisfied makes it unclear.
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October 31, 2009, 2:00 pm