U.S. Commission on Civil Rights: Senate Hate-Crimes Bill Will Do ‘a Great Deal of Harm’

Reprinted from National Review Online’s “The Corner” [Peter Kirsanow, Wednesday, June 17, 2009]

The following letter regarding the proposed Hate Crimes Prevention Act was sent by the U.S. Commission on Civil Rights to Senate leaders:

June 16, 2009

Re: S. 909

Dear Mr. President and Distinguished Senators:

We write today to urge you to vote against the proposed Matthew Shepard Hate Crimes Prevention Act (S. 909) (“MSHCPA”)

We believe that MSHCPA will do little good and a great deal of harm.  Its most important effect will be to allow federal authorities to re-prosecute a broad category of defendants who have already been acquitted by state juries—as in the Rodney King and Crown Heights cases more than a decade ago Due to the exception for prosecutions by “dual sovereigns,” such double prosecutions are technically not violations of the Double Jeopardy Clause of the U.S. Constitution  But they are very much a violation of the spirit that drove the framers of the Bill of Rights, who never dreamed that federal criminal jurisdiction would be expanded to the point where an astonishing proportion of crimes are now both state and federal offenses.  We regard the broad federalization of crime as a menace to civil liberties.  There is no better place to draw the line on that process than with a bill that purports to protect civil rights.

While the title of MSHCPA suggests that it will apply only to “hate crimes,” the actual criminal prohibitions contained in it do not require that the defendant be inspired by hatred or ill will in order to convict.  It is sufficient if he acts “because of” someone’s actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity or disability.  Consider:

• *Rapists are seldom indifferent to the gender of their victims.  They are virtually always chosen “because of” their gender.
• *A robber might well steal only from women or the disabled because, in general, they are less able to defend themselves.  Literally, they are chosen “because of” their gender or disability.

While Senator Edward Kennedy has written that it was not his intention to cover all rape with MSHCPA, some DOJ officials have declined to disclaim such coverage.  Moreover, both the objective meaning of the language and considerable legal scholarship would certainly include such coverage.  If all rape and many other crimes that do not rise to the level of a “hate crime” in the minds of ordinary Americans are covered by MSHCPA, then prosecutors will have “two bites at the apple” for a very large number of crimes.

DOJ officials have argued that MSHCPA is needed because state procedures sometimes make it difficult to obtain convictions.  They have cited a Texas case from over a decade ago involving an attack on a black man by three white hoodlums.  Texas law required the three defendants to be tried separately.  By prosecuting them under federal law, however, they could have been tried together.  As a result, admissions made by one could be introduced into evidence at the trial of all three without falling foul of the hearsay rule.

Such an argument should send up red flags.  It is just an end-run around state procedures designed to ensure a fair trial.  The citizens of Texas evidently thought that separate trials were necessary to ensure that innocent men and women are not punished.  No one was claiming that Texas applies this rule only when the victim is black or female or gay.  And surely no one is arguing that Texans are soft on crime.  Why interfere with their judgment?

We are unimpressed with the arguments in favor of MSHCPA and would be happy to discuss the matter further with you if you so desire.  Please do not hesitate to contact any of us with your questions or comments.

[Addressed to:]

The Honorable Joseph Biden, Jr., President, U.S. Senate
The Honorable Robert C. Byrd, President Pro Tempore, U.S. Senate
The Honorable Harry Reid, Majority Leader, U.S. Senate
The Honorable Mitch McConnell, Minority Leader, U.S. Senate
The Honorable Richard Durbin, Majority Whip, U.S. Senate
The Honorable Jon Kyl, Minority Whip, U.S. Senate
The Honorable Patrick Leahy, Chairman, Senate Judiciary Committee
The Honorable Jeff Sessions, Ranking Member, Senate Judiciary Committee
The Honorable Russell Feingold, Chairman, Senate Judiciary Subcommittee on the Constitution
The Honorable Tom Coburn, Ranking Member, Senate Judiciary Subcommittee on the Constitution