Hate Crimes Addendum

In an earlier blog post, I cited the ACLU’s recent decision to support the federal hate-crimes bill which recently passed the House.

The ACLU is supporting the bill despite the fact that the bill’s enactment could lead to the federal government prosecuting someone for a “hate crime” even after they have been found innocent of a similar crime in state court.

I noted that that aspect of the hate-crimes bill raises serious double jeopardy issues that ought to concern civil libertarians.

A sharply-divided Supreme Court ruled 5-to-4 in the Bartkus case that double jeopardy protections, which bar a person from being tried twice for the same crime, don’t apply when the first trial is in state court and the second trial is in federal court.

But the ACLU, like many legal scholars, has long opposed this loophole in double-jeopardy protections, considering successive state and federal prosecutions to be an end-run around constitutional protections against double jeopardy.

The ACLU’s general position is reflected in its Policy #238a, which rejects the Bartkus loophole. The ACLU’s national board reaffirmed this Policy in the aftermath of the Rodney King beating, a period in which the ACLU’s Southern California chapter broke ranks with the national ACLU and advocated that the federal government retry police officers accused of beating a black motorist even after acquittal in state court.

I argued that the ACLU was being politically correct and contradicting its general policy by supporting the federal hate-crimes bill, which authorizes federal prosecutions if “the verdict or sentence obtained pursuant to state charges” is deemed inadequate.

Technically, however, Policy #238a, however, raises constitutional objections to federal prosecutions of people already tried in state court for the same act, not to federal laws, such as hate crimes laws, that could potentially be used to mount such prosecutions.

Many commentators, such as former ACLU board member Nat Hentoff, have opposed the federal hate-crimes bill on double-jeopardy grounds. New York University Law Professor James Jacobs, an expert on hate crimes, argues that “a federal hate-crime law would also put another nail in the coffin of our constitutional protection against double jeopardy. After all, every federal hate crime would also be a state crime, like assault, robbery, or murder. Thus, the defendants could be tried twice if special interests judged the first trial to have ended in an unjust acquittal.”

But the ACLU as an entity does not seem to have done so. Although the ACLU in the past has raised double-jeopardy objections to other federal crime legislation, such as the Fugitive Felon Act, it did not cite double jeopardy in its past letters to Congress criticizing aspects of the hate-crimes bill that it now endorses.

In its June 15, 2004, and June 15, 2000 letters to the Senate expressing “concerns” about the hate-crimes bill, the ACLU did complain that the bill’s jurisdictional provisions raised the specter of “unwarranted dual prosecutions of the same defendant.” (Those provisions are still present in the version of the hate-crimes bill that the ACLU now endorses). The ACLU did not, however, refer to “double jeopardy” as the source of this concern.

The ACLU did advocate “further limiting the federal government’s jurisdiction to prosecute when state or local prosecutors are diligently investigating or prosecuting a person for the same crime.” And it complained that the bill was written so broadly that “the federal government can always exercise jurisdiction” by claiming, for example, dissatisfaction with the “verdict or sentence on state charges.”

But these objections were may not have been made with double jeopardy in mind, since the ACLU’s proposed amendment to the bill — which would merely require an additional certification by the attorney general that a federal prosecution is “in the public interest and necessary to secure substantial justice” — would not necessarily prevent double-jeopardy.

Whatever was the basis of the ACLU’s concerns about “unwarranted dual prosecutions,” it apparently no longer has them. Currently, the ACLU’s web site asks the public to support passage of the hate crimes bill “without weakening amendments” (urging passage of H.R. 1592, the “Local Law Enforcement Hate Crimes Prevention Act of 2007”).