Tag: hate crime laws

House Approves Hate Crimes Measure

Last night, the House of Representatives approved a defense spending measure that included a totally unrelated bill that would ban so-called “hate crimes.” 

I’ve testified twice against federal hate crimes proposals.  Here’s the case against the law (in brief):

First, the federal hate crime law is unconstitutional because it is beyond the powers of Congress. 

Second, the law will not prevent violent crime.  Anyone already inclined to kill or beat up another human being is not going to reverse course because Congress passes a new law against violence motivated by bias. 

Third, the law does take the state too close to the realm of thought crimes.  In order for a prosecutor to prove the “hate” aspect, detectives have to dig into a person’s life, thoughts, writings, conversations, etc., to gather the “evidence.”  There’s no good reason to go there because — let’s remember — violent acts are already against the law!

Hate Crime Legislation: A Shocking Disregard for Federalism

Last week’s Senate Judiciary Committee hearings (video at the link) on the proposed federal hate crimes bill showed the dark underbelly of the Senate. The road to undermining the rule of law is being paved with the best of intentions and casual disregard (if not outright hostility) for the principles of limited government and equality under the law.

I raise some objections to the bill in this podcast:

The bill federalizes violent acts against victims by reason of their actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability.

Never mind that these acts are already prosecuted by the states, and that violent crimes of this nature are universally perceived as an affront to justice. Matthew Shepard, the gay man brutally killed in Wyoming, has provided one of the rallying cries for passage of this legislation. His killers both received two consecutive life sentences from a state court. James Byrd, Jr., the African-American man dragged to death behind a truck in Texas, is cited as another reason to pass the law. His killers received death sentences or life imprisonment.

The federal government would also be authorized to prosecute whenever “the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence.” While this doesn’t violate the letter of the Supreme Court’s Double Jeopardy jurisprudence (the federal and state governments are considered separate sovereigns) it certainly violates its spirit.

The hearing video shows a complete disregard for limitations on federal power. Senator Ben Cardin (D-MD) claims that we need a “uniform” law across the states (82 minute mark). This claim ignores the fact that 45 states have their own hate crime laws and that violence against others is universally unlawful and routinely prosecuted. It also disregards the fact that general police powers belong to the states, not to the federal government.

Senator Charles Schumer (D-NY) then makes a brief appearance (89 minute mark) to slander opponents of the legislation - how could anyone oppose legislation with such a noble goal? He claims that this is tantamount to saying that it is acceptable to harm people because you do not like who they are.

The problem is that a broad array of actions are implicated as “hate crimes.” Virtually all rapes seem to fall under the new law - it is hard to see how the choice of a rape victim would not implicate their sex. Gail Heriot, a member of the United States Commission on Civil Rights (which came out 6-2 against this legislation), testified that when she consulted with Department of Justice attorneys in previous attempts to pass this legislation, they didn’t seem fazed by this prospect.

Don’t expect the application of this legislation to be the rare and exceptional prosecution that Attorney General Holder promises in his testimony. Janet Cohen testified that her upbringing in a racially divided America decades ago justifies passage of this law. She also proposes that prosecutions with the new law will be “wise” on account of Holder’s “brilliance and integrity.”

And to think, we were once a nation of laws, not of men.

This legislation doesn’t promote the rule of law, it undermines it. Prosecutions that favor one group of victims over another mark the destruction of equality before the law.

The worst facet of the legislation is its counterproductive nature. A real true believer, a hardcore racist or homophobe, would want to be prosecuted under a statute that criminalizes his motives. Prosecution under a murder statute makes him a common criminal; prosecution for murdering someone given special status by the government makes him a martyr for his cause and incites those motivated by his brand of hatred and animus.

This is nothing new. The Animal Enterprise Protection Act (AEPA) criminalized harassment, vandalism and violence against companies that test their products on animals. When seven activists from Stop Huntingdon Animal Cruelty tried to intimidate people associated with Huntingdon Life Sciences, a company engaged in animal testing, they weren’t just prosecuted for stalking. They were prosecuted for conspiracy to violate a federal statute enacted at the behest of their target industry. This made martyrs of the “SHAC 7” and highlighted the undue influence that an industry can exert over government. The focus is now on the propriety of the law used to prosecute someone, not the fact that they unlawfully stalked people engaged in lawful commercial activity.

You don’t defeat politically motivated violence by politicizing the laws used to prosecute it.

Murder is always murder most foul. We criminalize rape, assault, vandalism, and criminal threats because they harm a citizen - not a super-citizen held in some special regard by the government.

For more Cato work on hate crime legislation, go here and here.

New at Cato: Nat Hentoff on Hate Crimes

With the support of President Obama, so-called “hate crime” legislation is on the move in Congress. According to Cato senior fellow Nat Hentoff, laws that punish one time for the crime and another time for the hate violate the First Amendment, the 14th Amendment and protections against Double Jeopardy.

In April, Hentoff spoke at the Cato Policy Perspectives seminar in New York City about the current expansion of hate crime legislation.