Hate Crimes (II)
National Review’s David Freddoso raised a few smart objections to pending hate crimes legislation:
Another problem with this particular bill is that it explicitly encourages federal prosecutors to try defendants twice for the same crime, even if the first trial results in acquittal.
People usually think of hate-crimes bills as sentence-enhancers – and indeed, many state hate-crime laws take that format. The Shepard bill does not. In addition to providing financial help for local prosecutors for hate crimes, it creates a new federal charge, with a ten-year prison sentence, that can be used against those who commit “crimes of violence” with firearms or explosives, or which cause serious bodily harm, motivated by hatred toward certain groups.
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If someone is acquitted of an alleged hate crime at the state level, this bill allows federal prosecutors to haul him into federal court for the same alleged act, based only on evidence that “hate” motivated the crime that the jury says the defendant didn’t commit. This makes use of a loophole in the constitutional protection from double jeopardy.
I could see how this approach would be justified if state and local courts consistently ignored crime motivated by gender or racial animus, but I don’t think this is the case. All things considered, this legislation strikes me as a bad idea, though this doesn’t mean all hate crimes legislation is necessarily bad.
Freddoso’s commentary is rather misleading. The bill does not and cannot create an exception to the double jeopardy clause. It’s the separate sovereigns doctrine — well-established in federal law since a date that I am, to be frank, entirely too lazy to look up — that has allowed the feds to take a second bite of the apple once the state has failed. (See, e.g., Rodney King.) The bill may articulate a policy towards doing so, but can’t broaden the doctrine.
In addition, to the extent that federal prosecutors attempt to interpret the bill aggressively and assert that a hate crime is per se under federal jurisdiction (as opposed to the more conservative interpretation of the rather poorly drafted bill, that it only applies to hate crimes in special federal jurisdiction or with federal jurisdiction hooks), they may well get slapped down by the courts in the wake of a line of cases imposing increasing scrutiny on whether the federalization of crime exceeds Congressional power.Report
Ken –
Forgive my ignorance, but what’s the difference between “separate sovereigns” and “double jeopardy?” If a guy is being tried twice for the same crime, isn’t that the very definition of “double jeopardy?”Report
Will:
Very, very roughly, the idea is that the constitutional prohibition on double jeopardy is limited to charges filed by the same government entity. The only exception to this of which I’m aware is where the feds are acting as merely the “tool” of the state.Report
Mark –
Thanks for the clarification. Did the “separate sovereigns” doctrine develop as a mechanism for the federal government to correct lapses in state and local enforcement?Report
Ken is much, much better qualified to answer that than I am. But at a minimum it’s a logical outgrowth of the idea that double jeopardy only applies to prosecutions for the same crime rather than the same acts. In other words, double jeopardy doesn’t apply if someone is prosecuted for, say, burglary and then in a separate prosecution for robbery for the same events. The reason this would be the case is because burglary (breaking and entering a building with intent to commit a felony therein) and robbery(seizing property through violence or intimidation) require proof of different elements. Similarly, a federal and state prosecution implicitly require proof that the crime occured within the relevant entity’s jurisdiction, which is usually quite different.Report
Mark is much too kind to me.
I don’t think the doctrine developed as a mechanism to “correct mistakes,” per se. It developed more as a recognition that different sovereign entities (usually the feds, the states, and Indian tribes) each have distinct interests in prohibiting various acts, and that a course of conduct can different crimes to different entities. An example of a case discussing this doctrine is here. Money quote:
Note that this doesn’t always work both ways. Some states have held that their own constitutions do not permit subsequent prosecutions after a federal or Indian tribe prosecution. But the feds definitely can — though I can tell you that it requires an absolute assload of paperwork and supervisory approvals within the Department of Justice, and is relatively rarely approved.
As SCOTUS points out in the case I link, one fear supporting the doctrine is that one sovereign could effectively immunize bad conduct from prosecutions by another sovereign. Imagine a Klan lynching in, say, Mississippi in 1960. The feds come sniffing around looking to file civil rights charges. The local Klan-friendly, civil-rights-worker-hostile DA quickly charges the lynchers with, say, petty assault, allows them to plea, and has the court fine them $1. Absent the separate sovereigns doctrine, that could prevent the feds from addressing the issue.Report