The Hate Crimes Prevention Act of 2007

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Mr. Chairman, distinguished members of the committee: My name isTimothy Lynch. I am director of the Cato Institute's Project onCriminal Justice. I want to thank the committee for inviting me totestify on the question of whether Congress should enact additionalhate crimes legislation.

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 a serious problem, but under the U.S. Constitution itis a matter to be handled by state and local government. InCohens v. Virginia, 6 Wheat (19 U.S.) 264 (1821), ChiefJustice John Marshall observed that Congress had "no general rightto punish murder committed within any of the States" and that itwas "clear that congress cannot punish felonies generally."Unfortunately, as the years passed, Congress eventually assumed thepower to enact a vast number of criminal laws pursuant to its power"to regulate Commerce with foreign Nations, and among the severalStates, and with 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. 2In United States v. Lopez, 514 U.S. 549 (1995), theSupreme Court finally struck down a federal criminal law, theGun-Free School Zone Act of 1990, because the connection betweenhandgun possession and interstate commerce was simply too tenuous.3 In a concurring opinion,Justice Clarence Thomas noted that if Congress had been givenauthority over matters that simply "affect" interstate commerce,much if not all of the enumerated powers set forth in article I,section 8 would be surplusage. Indeed, it is difficult to disputeJustice Thomas' conclusion that an interpretation of the commercepower that "makes the rest of §8 surplusage simply cannot becorrect."

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 bill is simply beyond the powers that aredelegated 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, it is imperative that federal lawenforcement focus on foreign threats, such as al-Qaeda. One of thereasons that the terrorists were able to elude detection prior tothe September 11 attacks was that the FBI was trying to do so manythings that it lost sight of its most importantresponsibility.protecting the homeland from foreign threats. But,as former Attorney General Richard Thornburgh has noted, the FBIwas only trying to respond to the additional missions that theCongress assigned to it: "In the last several decades, [Congress]has added federal criminal laws at a faster rate than ever beforein American history ... These new statutes have the capacity toabsorb limited federal resources in the pursuit of what are, inmany cases, state offenses dressed up as federal crimes."4

Second, all of the violent acts that would be prohibited underthe proposed bill are already crimes under state law. Over the lastfew years, there has been a great deal of publicity surrounding thebrutal killings of James Byrd in Texas and Matthew Shepard inWyoming. The individuals responsible for those murders were quicklyapprehended and prosecuted by state and local authorities. Thoseincidents do not show the necessity for congressional action; tothe contrary, they show that federal legislation is unnecessary.5

Third, a federal law is not going to prevent anything. Any thugthat is already inclined to hurt another human being is not goingto lay down the gun or knife because of some new law passed byCongress. The culprits involved in the killings of James Byrd andMatthew Shepard, for example, made a conscious decision todisregard basic homicide statutes. And those murders took place instates that have the most drastic legal sanction available underthe law--the death penalty. The notion that any federal hate crimelaw could have prevented those brutal killings is naïve.

Fourth, it is important to note that the whole concept of "hatecrimes" is fraught with definitional difficulties. Hate crimesgenerally refer to criminal conduct motivated by prejudice.6 Should all prejudices beincluded in the hate crime definition--or only a select few? TheColumbine school shooting illustrates this problem. According tonews reports, one of the groups targeted by the deceased teenageculprits was athletes. If the athletes had been the sole targets ofthe school shooting, such a crime would not have been considered ahate crime in any jurisdiction (federal or state). And yet we canbe fairly certain that the perpetrators of the Colorado rampagewere filled with hatred toward "jocks." For the proponents of hatecrime laws, the dilemma is this: if some groups (women, gays,environmental political activists, whatever) are left out 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. 7

Fifth, 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 has happened insome of the jurisdictions that have enacted hate crime laws at thelocal level. For example, when then New York City Mayor DavidDinkins characterized the beating of a black man by white Jewishmen as a hate crime in 1992, the Jewish community was outraged.8 Jewish community leaderssaid the black man was a burglar and that some men were attemptingto hold him until the police could take him into custody. The blackman did not want to go to jail, so he resisted--and the Jewish menfought back. Incidents such as that illustrate that actual andperceived bias in the enforcement of hate crime laws can exacerbateintergroup relations.

Sixth, hate crimes legislation will take our law too close tothe notion of thought crimes. It is true that the hate crime lawsthat presently exist cover acts, not just thoughts. But once hatecrime laws are on the books, the law enforcement apparatus of thestate will be delving into the accused's life and thoughts in orderto show that he or she was motivated by bigotry. What kind of booksand magazines were found in the home? What internet sites werebookmarked in the computer? Friends and co-workers will beinterviewed to discern the accused's politics and worldview. Thepoint here is that such chilling examples of state intrusion areavoidable because, as noted above, hate crime laws are unnecessaryin 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 your friends,I want you to give me one person, just one who was a really goodfriend of yours. 9

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 another hate crimes bill,but to repeal all existing federal hate crime laws.


1 See TheFederalization of Criminal Law (American Bar Association,1998). See also John S. Baker, Measuring the Explosive Growthof Federal Crime Legislation (The Federalist Society for Lawand Public Policy Studies, 2005).

2 See Gene Healy andTimothy Lynch, "Power Surge: The Constitutional Record of George W.Bush (Cato Institute, 2006)", and Timothy Lynch, "Dereliction ofDuty: The Constitutional Record of President Clinton," CatoInstitute Policy Analysis no. 271, March 31, 1997, pp. 37-43.

3 See also Gonzales v.Raich, 545 U.S. 1 (2005); United States v. Morrison,529 U.S. 598 (2000).

4 Richard Thornburgh,"Well Before Sept. 11, Congress Overtaxed the FBI," New YorkTimes, June 29, 2002.

5 If convincing evidencewere presented to Congress that state officials were enforcing thelocal criminal law in an uneven manner so that certain citizenswere being deprived of the equal protection of the law, Congresscan (and should) invoke its legislative power under section 5 ofthe Fourteenth 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.

6 See Eric Pooley,"Portrait of a Deadly Bond," Time, May 10, 1999, p.26.

7 See generally James B.Jacobs and Kimberly Potter, Hate Crimes: Criminal Law andIdentity Politics (Oxford University Press, 1998).

8 See Mary B.W. Tabor,"Black is Victim of Beating By Hasidim in Crown Heights," NewYork Times, December 2, 1992, p. B3; Jane Fritsch, "PoliceDept. Vows Caution in Labeling Crimes as Bias Cases," New YorkTimes, December 22, 1992, p. A1.

9 See Richard Dooling,"Good Politics, Bad Law," New York Times, July 26, 1998(quoting State v. Wyant, 597 N.E.2d 450 (1992), vacatedand remanded, 113 S.Ct. 2954 (1993), reversed, 624 N.E.2d 722(1994)).

Tim Lynch

Subcommittee on Crime, Terrorism and Homeland Security
Committee on the Judiciary
United States House of Representatives