Jacob Sullum

The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, which President Obama plans to sign soon, is named after two men who were murdered in 1998. Shepard, a gay college student, was beaten to death in Wyoming. Byrd, a black hitchhiker, was dragged to death behind a pickup truck in Texas. Bigotry seemed to play a role in both crimes.

Here is something else Matthew Shepard and James Byrd have in common: Their killers were arrested, tried, convicted and sentenced to life in prison or death, all without the benefit of hate crime laws, state or federal. Hence it is very strange to slap their names onto a piece of legislation based on the premise that such crimes might go unpunished without a federal law aimed at bias-motivated violence.

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In more than a decade of lobbying for this law, its supporters have never shown that state officials are letting people get away with murder, or lesser crimes of violence, when the victims belong to historically oppressed groups. Instead, they have presented the legislation as a litmus test of antipathy toward violent bigots and sympathy for their victims. Given this framing, it's surprising the law's opponents managed to resist it for so long, when all they had on their side was the Constitution and basic principles of justice.

As the Supreme Court has noted, the federal government has no general authority to fight crime. Yet this law covers any violent crime where the victim is selected "because of" his actual or perceived race, religion, national origin, gender, disability, sexual orientation or gender identity, as long as the crime in any way involves or "affects" interstate commerce, even if the connection is limited to a weapon made in another state or country.

Like state laws that enhance penalties for crimes when they are motivated by bigotry, the federal law requires courts to examine defendants' beliefs. To prove that a defendant selected his victim based on one of the prohibited criteria, prosecutors inevitably will cite things he said at the time of the crime and other evidence of his hatred toward members of the victim's group.

If someone hits me in California with a baseball bat made in Kentucky, that is not a federal crime. But if he does exactly the same thing while calling me a "dirty kike," it is. No doubt the prosecutor also would deem it relevant that my attacker owned a dog-eared copy of "Mein Kampf" and belonged to a neo-Nazi group.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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