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Hate Crimes Bait and Switch

The federal hate-crimes bill is a classic example of bait and switch. Its purpose is to circumvent constitutional protections against double jeopardy. But it is being sold to the public as simply a way to protect gay and lesbian rights, in order to brand opponents of the bill as homophobes, and deflect constitutional objections to it. The bill would allow people who have been found innocent of a hate crime in state court to be reprosecuted in federal court. As one supporter put it, "the federal hate crimes bill serves as a vital safety valve in case a state hate-crimes prosecution fails." The claim that the justice system has "failed" when a jury returns a not-guilty verdict is truly scary and contrary to the constitutional presumption of innocence and the right to trial by jury. Reprosecuting a defendant who has already been found innocent is usually barred by the Double Jeopardy Clause of the Fifth Amendment. But the federal hate-crimes bill takes advantage of a controversial loophole in constitutional protections against double jeopardy. The bill's sponsors seldom talk about that controversial aspect of the bill, however, when addressing the general public. Instead, they trumpet the fact that the hate-crimes bill would include gays and lesbians among the classes of people it covers, banning hate-crimes based on race, gender, and sexual orientation. The bill's Senate sponsors have named the bill after Matthew Shepard, the young gay man who was murdered by thugs in Wyoming. This is a clever strategy. Hate-crimes laws are fairly popular: 45 states have hate crimes laws, and most of them ban hate-crimes based on sexual orientation. But precisely for that reason, a federal hate-crimes law is unnecessary. Moreover, even the few states that don't have hate-crimes laws, like Wyoming, still punish hate criminals under their laws against murder and assault. The killers of Matthew Shepard were given life sentences, which is the same penalty as the federal hate-crimes bill prescribes as its maximum sentence. (Ironically, the Wyoming prosecutor wanted them to get the death penalty, while liberal groups like Lambda Legal, which supports the federal hate-crimes bill, oppose the death penalty in all cases). Unlike some in the general public, lawyers are well aware that hate crimes are already punished under state law, even without any federal hate-crimes law. To lawyers, supporters of the bill argue for it as a way of getting around double-jeopardy, while opponents argue that the bill exceeds Congress's enumerated powers, or that it erodes double-jeopardy protections. All that is lost on the media, however. The fact that the bill would for the first time treat gays and lesbians as a protected class under federal law is all that matters to them, and they could care less about the details of the bill, or how it would erode civil liberties. The Washington Post dropped its long, principled opposition to hate-crimes laws precisely because the bill includes sexual orientation. Even worse was the San Francisco Chronicle, which completely misconstrued legal objections to the bill as focusing on sexual orientation. The federal hate-crimes bill has been justified by claiming it is no bigger an infringement on protections against double jeopardy than the federal reprosecutions of the police officers who beat Rodney King. But that's false, as I explain here. Moreover, as I have explained before, portions of the federal hate-crimes bill exceed Congress's enumerated powers under the Constitution. That is especially true since the bill would punish crimes that are completely unrelated to federally-protected activities.