Yes. Why do you think that is unworkable?

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.

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.

Andrew Hyman: 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.

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.”

I’ll agree with Hans Bader on this.

Put down your keyboard and walk away from the precipice.

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

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.

“to define and punish Piracies …” … “to provide for the punishment of counterfeiting …” the treason clause would seem to be three

Fair enough.

RikiTiki: 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.

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.

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.

I do like that OLC memorandum are readily available to be posted and discussed on the internet.

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

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.

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.

Ahhhh. The old “she was asking for it” rape defence:

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.

How au courant.

Cheers,

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.

Lederman restricted the 13th to race, religion and national origin. The Commerce Clause was invoked for sexual orientation.

Angry_Queer: 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.

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.

Angry_Queer: Would your ghost rest easy with my summer-camp jail sentence?

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?

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).

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.

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).

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.

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.)

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.

geokstr: Commenters here have outright hoped that John Yoo and others are bankrupted by perpetual prosecution.

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.

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.

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?

BOOGA BOOGA THE LIBS ARE COMIN TO GET YA!

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.

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.

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.

That sounds like killing (aka manslaughter) to me.

RikiTiki: 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.

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.

RikiTiki: While I do not think Robert Hannah committed murder, six months seems like a fairly light sentence based on the facts of that case.

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.

RikiTiki: Sean Kennedy was killed in South Carolina for being gay and there, an eight month sentence.

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.

Mikee:
I don’t care about the motives of the attacker.

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.

Ryan Waxx: I’m sorry.I will not be so uncivil as to mention Andrew Sullivan again.

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?

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.