No Constitutional Authority for Federal Hate Crime Law

Identified by William Blackstone as a universal maxim of the common law, the protection against double jeopardy—being tried twice for the same crime—has been a part of American law since even before it was enshrined in the Constitution.  While the Fifth Amendment’s Double Jeopardy Clause (“nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”) prohibits successive prosecutions for the same offense, courts have recognized a “dual sovereignty” exception, which permits the federal government to prosecute a federal crime after completion of a state prosecution over the same conduct. Originally a small exception intended to enable Prohibition-related prosecutions, the dual sovereignty exception has widened vastly to accommodate the glut of federal crimes established since that time. 

But there are limits on such prosecutions: the federal government must have legitimate jurisdiction over the crime being prosecuted. In Hatch v. United States, William Hatch is challenging the use of the federal Hate Crime Prevention Act to federally re-prosecute him for an attack on a disabled Navajo man for which he was already convicted under New Mexico state law.

Congress passed the HCPA pursuant to Section 2 of the Thirteenth Amendment, which authorizes Congress to enforce the Thirteenth Amendment ban on slavery, which authority the Supreme Court has extended to eliminating the “badges and incidents” of slavery. The lower federal courts upheld the HCPA’s constitutionality, deferring to Congress’s power to “rationally determine” what the badges and incidents of slavery are. In petitioning the Supreme Court for review, Hatch argues that the HCPA intrudes on the states’ police power to prosecute local crimes and that Congress cannot be the judge of its own powers. In City of Boerne v. Flores  (1997), for example, the Supreme Court noted that Congress may not pass “general legislation upon the rights of the citizen.”

Joined by the Reason Foundation and the Individual Rights Foundation, Cato has filed a brief supporting Hatch’s petition. We argue that the use of hate-crime laws to sweep intra-state criminal activity into federal court has nothing to do with stamping out slavery and that the Court should decide the legitimacy of these laws before a more highly publicized and politicized case comes along and makes that task even harder. Not only are federal hate-crime laws constitutionally unsound, but, as George Zimmerman’s recent trial highlighted, they invite people dissatisfied with a state-court outcome to demand that the government re-try unpopular defendants. The administration of justice and the protections of the Double Jeopardy Clause shouldn’t be subject to the whims of public pressure and racial politics.