Four members of the U.S. Civil Rights Commission urged Congress not to pass the federal hate crimes bill (LLEHCPA). In an April 29 letter to Congressional leaders, they point out that it would circumvent Constitutional protections against double jeopardy, giving the federal government the power to reprosecute people in federal court even after they have been found innocent of rape and other "hate crimes" in state court:
"We believe that LLEHCPA 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."
"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 LLEHCPA 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."
"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 LLEHCPA, then prosecutors will have “two bites at the apple” for a very large number of crimes."
We wrote earlier about how backers of the federal hate-crimes bill want to use it to reprosecute people who have already been found innocent, and to prosecute people whom state prosecutors decline to charge because the evidence against them is so weak. Supporters of the bill have given only lame rationalizations for why state not-guilty verdicts should not be respected. (Some of the bill's supporters have even made the strange claim that the defendants in the Duke Lacrosse case, whom the North Carolina attorney general later admitted were actually innocent, should have been reprosecuted in federal court).
Such reprosecutions fall within a loophole in Constitutional protections against double jeopardy known as the "dual sovereignty" doctrine. But ironically, they violate Article 14 of the International Covenant on Civil and Political Rights -- a treaty that many of the bill's backers harp on to push liberal causes, such as restrictions on the death penalty and antiterrorism measures. Article 14's ban on double jeopardy has no "dual sovereignty" loophole, unlike the U.S. Constitution. That is an additional reason to be skeptical of the hate-crimes bill, which is known as the Local Law Enforcement Hate Crimes Prevention Act of 2009 (LLEHCPA, H.R. 1913).
The Civil Rights Commissioners signing the letter were law professor Gail L. Heriot; former Office for Civil Rights head Gerald A. Reynolds; former Justice Department lawyer Todd Gaziano; and National Labor Relations Board member Peter N. Kirsanow. The letter was addressed to House Speaker Nancy Pelosi, and Congressmen John Boehner, Eric Cantor, James Clyburn, and Steny Hoyer.