Hate Crimes (II)

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Will

Will writes from Washington, D.C. (well, Arlington, Virginia). You can reach him at willblogcorrespondence at gmail dot com.

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6 Responses

  1. Avatar Ken says:

    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

  2. Avatar Will says:

    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

  3. 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

  4. Avatar Will says:

    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

  5. 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

  6. Avatar Ken says:

    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:

    In Bartkus v. Illinois, 359 U.S. 121 , and Abbate v. United States, 359 U.S. 187 , this Court reaffirmed the well-established [435 U.S. 313, 317] principle that a federal prosecution does not bar a subsequent state prosecution of the same person for the same acts, and a state prosecution does not bar a federal one. 7 The basis for this doctrine is that prosecutions under the laws of separate sovereigns do not, in the language of the Fifth Amendment, “subject [the defendant] for the same offence to be twice put in jeopardy”:

    “An offence, in its legal signification, means the transgression of a law. . . . Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both. . . . That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable.” Moore v. Illinois, 14 How. 13, 19-20.

    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