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Hate Crimes Bill Would Federalize Criminal Law, Revive Double Jeopardy

The opinions expressed by columnists are their own and do not necessarily represent the views of

Among its many defects, the proposed federal hate crimes bill virtually ensures that some defendants will face double jeopardy, whatever the outcome of their cases. It all depends on the whims of the folks occupying the Attorney General’s office, who may want to score political points at a defendant’s expense.

The Matthew Shepard Hate Crimes Prevention Act (S. 909) now before the Senate, establishes “thought crime,” violates equal protection by making some victims more important than others, elevates “sexual orientation” and “gender identity” to be equivalent to civil rights categories like race, and greatly expands the federal role in criminal law.

In short, it’s a grab bag of ways to violate genuine constitutional rights while addressing a non-issue. There is no compelling evidence that bias-motivated crimes are not being handled properly and perpetrators punished.

One of the bill’s more dangerous features is its boldly stated authorization for the feds to intervene in any case they determine has not met “the federal interest in eradicating bias-motivated violence." Under current law, the feds can narrowly invoke their authority in cases where a “hate crime” has prevented someone from engaging in federally protected activities such as voting. The new law opens wide the door for the feds to barge in.

Gail Heriot, a member of the U.S. Civil Rights Commission, was one of two (out of six) witnesses testifying against the bill on June 25 before the Senate Judiciary Committee. She laid out precisely how the law could be abused, and concluded:

No one can deny the horror of violent crimes inspired by hatred of any kind. This is something upon which all decent people can agree. But it is precisely in those situations–where all decent people agree on the need to ‘do something’–that mistakes are made. Passage of the vaguely-worded prohibitions in S. 909 would be a giant step toward the federalization of all crime. Given the many civil liberties issues that would raise, including the routine potential of double jeopardy prosecutions, this is a step that members of the Senate should think twice before they take.
In addition, the bill’s wording guarantees future interpretive mischief, Heriot notes:
Back in 1998, attorneys at the Department of Justice, eager to expand federal authority, drafted language for the bill that would create federal jurisdiction over many cases that can't honestly be regarded as hate crimes–at least not as that term is understood by most Americans. The fact is that, despite the misleading use of the words "hate crime," [the bill] does not actually require that the defendant be inspired by hatred 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 always chosen ‘because of’ their gender.

*A thief might well steal only from the disabled because, in general, they are less able to defend themselves. Literally, they're chosen ‘because of’ their disability.

* Suppose a burglar is surprised when the husband and wife who reside in the home return earlier than expected. The burglar shoots the husband and kills him, but finding himself unable to shoot a woman, turns and runs. Again, literally, the husband was killed ‘because of’ his gender.

The House version of the bill passed in April. President Obama said he wants to sign it before the August recess.

This bill is a grave threat to America’s legal heritage of judging actions rather than thoughts or beliefs, and it will politicize law enforcement. Beyond the unfairness of excluding some groups, such as the elderly, the homeless, veterans and children, the proposed law advances an underlying, ambitious agenda to punish individuals and groups that hold traditional values.

During the Supreme Court hearings on the Boy Scouts case (Boy Scouts of America vs. Dale, 2000), the Rev. Rob Schenck of the National Clergy Council was sitting next to the White House liaison on gay and lesbian issues. Thinking he was of like mind, she whispered to him: “We’re not going to win this case, but that’s okay. Once we get ‘hate crime’ laws on the books, we’re going to go after the Scouts and all the other bigots.”

Why would she say that? Could it be that the bill will lay the foundation for suppressing groups with traditional values?

S. 909 adds “sexual orientation” and “gender identity” to a list of specially protected classes such as race, ethnicity, sex and religion. Congress would thus create newly minted “civil rights” based on sexual vagaries. Like “sexual orientation,” “gender identity” is fluid, and it includes transvestitism (cross-dressing) and transsexualism. It is notable that former homosexuals, or “ex-gays,” perhaps the most victimized group based on “sexual orientation” perceptions, have not been mentioned as being covered by this bill. In the House, even an amendment to exclude “pedophilia” was defeated.

The law essentially criminalizes views or beliefs. Defendants’ speech, writing, reading materials and organizational memberships would become key evidence to establish a “hate crime.”

Some language was inserted to assuage free speech and liberty concerns, but American Civil Rights Union Senior Legal Analyst Ken Klukowski observes: “It’s only a statement of the obvious, so it has no legal effect. No statute can abridge constitutionally-protected speech. If any speech is burdened, and the speaker files suit, then the process and the result is the same … [This] is just there to help pass the bill by giving people a talking point to say ‘this law does nothing to violate anyone's free speech rights.’ It makes no difference in court whatsoever.”

The tendency to equate conservative views with “extremism” was on display earlier this year when a revealing memo surfaced at the Department of Homeland Security and for which Secretary Janet Napolitano was forced to apologize. The memo, “Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment,” listed as candidates for “violent radicalization” such Americans as returning veterans from the Iraq and Afghanistan wars, people who oppose illegal immigration and gun control, and those who warn of losing American sovereignty to globalism. This characterization of millions of Americans as security threats should give everyone pause about passing laws that redefine legal protection based on group status.

The bill also represents yet another abuse of the Constitution’s Commerce Clause, using it to justify federal intervention upon the flimsiest tie-ins to interstate trade.

In 2007, America had more than 11 million incidents of violence or property crime, of which 7,624 incidents were classified as “hate crimes.” Not exactly an epidemic of “hate” in a nation of more than 300 million.

The proposed law will politicize crime, leading to pressure on police and prosecutors to devote more of their limited resources to some victims over others. If you doubt this, consider the tsunami of media accompanying the Matthew Shepard case in Wyoming in 1998, while the murder of Kristen Lamb, an eight-year-old girl, a month before was virtually ignored.

Hate crime laws lay the groundwork for assaults on freedom of speech and freedom of religion. We can look to our northern neighbor for clues about what happens when such laws are enacted. In Saskatchewan, Canada, a newspaper publisher and a man who placed a newspaper ad faced jail and were fined $4,500 each, merely for running an ad containing references to several Bible verses regarding homosexuality. A college teacher who wrote a letter to the editor affirming traditional morality was suspended. And best-selling author Mark Steyn (America Alone), has faced charges in national and provincial tribunals for the supposed “hate crime” of reporting what Muslim leaders in Europe themselves say about changing demographics.

The Senate should think long and hard before saddling Americans with this kind of dangerous nonsense.

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