The Hate Crimes Prevention Act of 1999

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Mr. Chairman, distinguished members of the committee:

My name is Timothy Lynch. I am associate director of the CatoInstitute's Center for Constitutional Studies.

I want to thank the committee for inviting me to submit writtentestimony on the question of whether Congress should enact the"Hate Crimes Prevention Act of 1999."

I believe the proponents of hate crimes legislation have goodand honorable intentions. They would like to see less bigotry andmore good will in American society. While I share that goal, Ibelieve Congress should decline the invitation to enact hate crimeslegislation for both constitutional and practical reasons.

A. Constitutional Objection

The U.S. Constitution created a federal government of limitedpowers. As James Madison noted in the Federalist no. 45, "Thepowers delegated by the proposed Constitution to the federalgovernment are few and defined. Those which are to remain in theState governments are numerous and indefinite." Most of the federalgovernment's "delegated powers" are specifically set forth inarticle I, section 8. The Tenth Amendment was appended to theConstitution to make it clear that the powers not delegated to thefederal government "are reserved to the States respectively, or tothe people."

Crime is serious problem, but under the U.S. Constitution it isa matter to be handled by state and local government. In Cohensv. Virginia, 6 Wheat (19 U.S.) 264 (1821), Chief Justice JohnMarshall observed that Congress had "no general right to punishmurder committed within any of the States" and that it was "clearthat congress cannot punish felonies generally." Unfortunately, asthe years passed, Congress eventually assumed the power to enact avast number of criminal laws pursuant to its power "to regulateCommerce with foreign Nations, and among the several States, andwith the Indian Tribes."[1]

In recent years, Congress has federalized the crimes of gunpossession within a school zone, carjacking, wife beating, andfemale genital cutting. All of that and more has been rationalizedunder the Commerce Clause.[2] InUnited States v. Lopez, 514 U.S. 549 (1995), the SupremeCourt finally struck down a federal criminal law, the Gun-FreeSchool Zone Act of 1990, because the connection between handgunpossession and interstate commerce was simply too tenuous. In aconcurring opinion, Justice Clarence Thomas noted that if Congresshad been given authority over matters that simply affect interstatecommerce, much if not all of the enumerated powers set forth inarticle I, section 8 would be surplusage. Indeed, it is difficultto dispute Justice Thomas' conclusion that an interpretation of thecommerce power that "makes the rest of §8 surplusage simplycannot be correct."

This Congress should not exacerbate the errors of pastCongresses by federalizing more criminal offenses. The CommerceClause is not a blank check for Congress to enact whateverlegislation it deems to be "good and proper for America." Theproposed Hate Crimes Prevention Act is simply beyond the powersthat are delegated to Congress.

B. Policy Objections

Beyond the threshold constitutional problem, there are severalother reasons why Congress should decline the invitation to enacthate crimes legislation.

First, all of the violent acts that would be prohibited underthe proposed bill are already crimes under state law. Over the lasttwo years, there has been a great deal of publicity surrounding thebrutal killings of James Byrd in Texas and Matthew Shepard inWyoming. The individuals suspected of committing those murders werequickly apprehended and prosecuted by state and local authorities.Those incidents do not show the necessity for congressional action;to the contrary, they show that federal legislation isunnecessary.[3]

Second, the so-called "Hate Crimes Prevention Act" is not goingto prevent anything. Any thug that is already inclined to hurtanother human being is not going to lay down the gun or knifebecause of some new law passed by Congress. The culprits involvedin the killings of James Byrd and Matthew Shepard, for example,made a conscious decision to disregard basic homicide statutes. Andthose murders took place in states that have the most drastic legalsanction available under the law--the death penalty. The notionthat any federal hate crime law could have prevented those brutalkillings is preposterous.

Third, it is important to note that the whole concept of "hatecrimes" is fraught with definitional difficulties. Hate crimesgenerally refer to criminal conduct motivated byprejudice.[4] Should all prejudices beincluded in the hate crime definition--or only a select few? Therecent school shooting in Colorado illustrates this problem.According to news reports, one of the groups targeted by thedeceased teenage suspects was athletes. If the athletes had beenthe sole targets of the school shooting, such a crime would nothave been considered a hate crime in any jurisdiction (federal orstate). And yet we can be fairly certain that the perpetrators ofthe Colorado rampage were filled with hatred toward "jocks."

For the proponents of hate crime laws, the dilemma is this: ifsome groups (women, gays, vegetarians, golfers, whatever) are leftout of the "hate crime" definition, they will resent the selectivedepreciation of their victimization. On the other hand, if allvictim groups are included, the hate crime category will be nodifferent than "ordinary" criminal law.[5]

Fourth, proponents of hate crime legislation believe that suchlaws will increase tolerance in our society and reduce intergroupconflict. I believe hate crime laws may well have the oppositeeffect. That's because the men and women who will be administeringthe hate crime laws (e.g. police, prosecutors) will likelyencounter a never-ending series of complaints with respect to theirofficial decisions. When a U.S. Attorney declines to prosecute acertain offense as a hate crime, some will complain that he isfavoring the groups to which the accused belongs (e.g. hispanicmales). And when a U.S. Attorney does prosecute an offense as ahate crime, some will complain that the decision was based uponpolitics and that the government is favoring the groups to whichthe victim belongs (e.g. Asian Americans).

This is already happening in the jurisdictions that have enactedhate crime laws at the local level. For example, when then New YorkCity Mayor David Dinkins characterized the beating of a black manby white Jewish men as a hate crime in 1992, the Jewish communitywas outraged.[6] Jewish communityleaders said the black man was a burglar and that some men wereattempting to hold him until the police could take him intocustody. The black man did not want to go to jail, so heresisted--and the Jewish men fought back. Incidents such as thatillustrate that actual and perceived bias in the enforcement ofhate crime laws can exacerbate intergroup relations.

Fifth, hate crimes legislation will take our law too close tothe notion of thought crimes. It is, of course, true that the hatecrime laws that presently exist cover acts, not just thoughts. Butonce hate crime laws are on the books, the law enforcementapparatus of the state will be delving into the accused's life andthoughts in order to show that he or she was motivated by bigotry.What kind of books and magazines were found in the home? Whatinternet sites were bookmarked in the computer? Friends andco-workers will be interviewed to discern the accused's politicsand worldview. The point here is that such chilling examples ofstate intrusion are avoidable because, as noted above, hate crimelaws are unnecessary in the first place.

The claim will doubtless be made that such problems can beavoided by "sound prosecutorial discretion" with respect to theapplication of hate crimes legislation. Congress should not acceptthat bland assurance. Consider, for example, a hate crimeprosecution from Ohio. The case involved an interracial altercationat a campground and here is how the prosecutor questioned the whiteperson accused of a hate crime:

Q. And you lived next door ... for nine years and youdon't even know her first name?

A. No

Q. Never had dinner with her?

A. No

Q. Never gone out and had a beer with her?

A. No. ...

Q. You don't even associate with her, do you?

A. I talk to her when I can, whenever I see her out.

Q. All these black people that you have described as yourfriends, I want you to give me one person, just one who was areally good friend of yours.[7]

This passage highlights the sort of inquisitorialcross-examination that may soon become common whenever an accusedperson takes the witness stand to deny a bias or hate charge thathas been lodged against him or her.

In People v. Lampkin, 457 N.E.2d 50 (1983), theprosecution presented as evidence racist statements that thedefendant had uttered six years before the crime for which he wason trial. This case raises the question of whether there is goingto be statute of limitations for such behavior? For example, it isnot uncommon for teenagers to entertain various prejudices forbrief periods and then discard them as they mature into adulthood.Is a stupid remark uttered by a 16 year-old on an athletic fieldgoing to follow that person around the rest of his or her life?Shouldn't our law make room for the possibility that people canexhibit some variation of bigotry in life--but then change?

The good news for Congress is this: all of the problems outlinedabove are avoidable because hate crime legislation is unnecessaryin the first place.

C. Conclusion

For all of the above stated reasons, I would urge Congress notonly to decline the invitation to pass the Hate Crimes PreventionAct of 1999, but to repeal all existing federal hate crimelaws.


Notes

[1]See Kathleen F. Brickey, "CriminalMischief: The Federalization of American Criminal Law," 46Hastings Law Journal 1135 (1995); Edwin Meese III, "BigBrother on the Beat: The Expanding Federalization of Crime," 1Texas Review of Law and Politics 1 (1997). See alsoRichard A. Epstein, "The Proper Scope of the Commerce Power," 73Virginia Law Review 1387 (1987).

[2]See Timothy Lynch, "Dereliction ofDuty: The Constitutional Record of President Clinton," CatoInstitute Policy Analysis no. 271, March 31, 1997, pp. 37-43.

[3]If convincing evidence werepresented to Congress that state officials were enforcing the localcriminal law in an uneven manner so that certain citizens werebeing deprived of the equal protection of the law, Congress can(and should) invoke its legislative power under section 5 of theFourteenth Amendment. I hasten to add, however, that a federal"hate crimes" law would be an inappropriate response to such asituation--for all of the other reasons outlined herein.

[4]See Eric Pooley, "Portrait of aDeadly Bond," Time, May 10, 1999, p. 26.

[5]See generally James B. Jacobs andKimberly Potter, Hate Crimes: Criminal Law and IdentityPolitics (Oxford University Press, 1998).

[6]See Mary B.W. Tabor, "Black isVictim of Beating By Hasidim in Crown Heights," New YorkTimes, December 2, 1992, p. B3; Jane Fritsch, "Police Dept.Vows Caution in Labeling Crimes as Bias Cases," New York Times,December 22, 1992, p. A1.

[7]See Richard Dooling, "GoodPolitics, Bad Law," New York Times, July 26, 1998 (quotingState v. Wyant, 597 N.E.2d 450 (1992), vacated andremanded, 113 S.Ct. 2954 (1993), reversed, 624 N.E.2d 722(1994)).

Tim Lynch

Committee on the Judiciary
United States Senate