Tourism Bill to be Combined with Hate Crimes Bill

If you were a tourist, would you like to come to a country where you
could be tried twice for the same crime — even if you were found
innocent the first time around? Not me. But the Senate will likely
attach a bill that promotes such reprosecutions to the Travel Promotion
Act, reports the Christian Science Monitor. Liberal Senators plan to
amend the Travel Promotion Act, a bill to attract international tourists
to the U.S., by combining it with a deeply controversial federal
hate-crimes bill. The hate-crimes bill’s supporters want to allow people
who have been found not guilty in state court to be reprosecuted all
over again in federal court.

By adding the hate-crimes provisions as an amendment to an unrelated
bill, they hope to prevent the hate-crimes provisions themselves from
being amended by Senators seeking to limit the reach of federal
hate-crimes law. The hate-crimes legislation will likely “be amended to
the Travel Promotions Act . . . which is scheduled to be voted on this
week. The report cites a Democratic source as saying the legislation
would be approved by Wednesday.”

On April 29, the House voted 249-to-175 to pass the federal hate
crimes bill, which the bill’s supporters explicitly want to use to
prosecute people already found innocent in state court all over again in
federal court. Such reprosecutions are, sadly, allowed under a
Constitutional loophole known as the “dual sovereignty” doctrine, which
says that state and federal governments are different sovereigns, and
that double jeopardy only applies when you are prosecuted twice by the
same sovereign. (This loophole was established in the Supreme Court’s
5-to-4 Bartkus decision, over a stinging dissent by Justice Black).

In the past, the possibility of reprosecutions was viewed as a vice,
not a virtue, and civil-rights advocates and lawmakers alike have
sometimes cited this risk in opposing bills broadening the reach of
federal criminal laws. But civil-rights groups now view double jeopardy
as a virtue when it comes to people accused of hate crimes. They
consider hate crimes so terrible that not even innocence should be a

The latest example of this comes from the Leadership Conference on
Civil Rights (a coalition of hundreds of liberal civil-rights groups
including the ACLU), and the Mexican American
Legal Defense and Educational Fund in a May 5 blog commentary entitled,
“Pennsylvania Teenagers Acquitted of Hate Crime; Federal Law Needed.” It
approvingly quotes the General Counsel of MALDEF
arguing that the federal hate-crimes bill is needed based on not-guilty
verdicts like the recent acquittal in state court of teenagers accused
of a hate crime against an illegal alien from Mexico: “Last week, the
House of Representatives passed the Local Law Enforcement Hate Crime
Prevention Act, which will . . . give federal government jurisdiction
over prosecuting hate crimes in states where the current law is
inadequate. ‘[T] his verdict underscores the importance of the passage
of this Act,’ said Henry Solano, MALDEF
interim president and general counsel. ‘It is time for the Department of
Justice to step in and bring justice to the Ramirez family and send a
strong message that violence targeting immigrants will not be tolerated
and will be prosecuted to the full extent of the law.’ The Justice
Department is currently investigating whether to prosecute the two
teenagers under federal civil rights statutes.”

By contrast, four members of the U.S. Civil Rights Commission
opposed the federal hate-crimes bill in an April 29 letter, calling it a
“menace to civil liberties,” since its “most important effect” will be
to circumvent double-jeopardy guarantees. The full U.S. Commission on
Civil Rights subsequently decided to oppose the bill.

MALDEF and the Leadership Conference on
Civil Rights are not alone in seeking to reprosecute people found
innocent in state court. Many supporters of the hate crimes bill want to
allow those found innocent 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.

But it is a view widely shared among supporters of the hate-crimes
bill. Syndicated columnist Jacob Sullum pointed out in 1998 that Janet
Reno, Clinton’s Attorney General, backed the bill as a way of providing a
federal “forum” for prosecution if prosecutors fail to obtain a
conviction “in the state court.”

Supporters of the hate crimes bill also see it as a way to prosecute
people even in cases where the evidence is so weak that state
prosecutors have decided not to prosecute. Attorney General Eric Holder
has pushed for the hate crimes bill as a way to prosecute people whom
state prosecutors refuse to prosecute because of a lack of evidence. To
justify broadening federal hate-crimes law, he cited three examples
where state prosecutors refused to prosecute, citing a lack of evidence.
In each, a federal jury acquitted the accused, finding them not guilty.

Advocates of a broader federal hate-crimes law have pointed to the
Duke lacrosse case as an example of where federal prosecutors should
have stepped in and prosecuted the accused players — even though the
state prosecution in that case was dropped because the defendants were
actually innocent, as North Carolina’s attorney general conceded, and
were falsely accused of rape by a woman with a history of violence
(including trying to run over someone with her car) and making false

Civil libertarians like Wendy Kaminer and law professors like Gail
Heriot have criticized the federal hate-crimes bill for taking advantage
of a loophole in constitutional double-jeopardy protections.

The hate-crimes bill also violates constitutional federalism
safeguards, such as the Supreme Court’s decision in United States v.
Morrison (2000).

Supporters of the hate-crimes bill have all sorts of lame
rationalizations for disregarding not-guilty verdicts. Hate-crimes
activist Brian Levin, who testified before Congress, claims
reprosecutions are needed because local jury pools are biased. NOW Legal Defense Fund told Congress that
reprosecutions are appropriate if local prosecutors had “inadequate
resources” or were of “questionable effectiveness.” (These
rationalizations make no sense and have no principled limits: there is
no evidence that state juries are more biased than the federal juries
that would hear federal hate-crimes cases, or that they are typically
biased; and even well-funded prosecutors have complained of having
inadequate resources).

Given the politically-charged nature of many hate-crimes trials,
Kimberly Potter of New York University was probably right when she told
Congress back in 1998 that if the federal hate crimes bill is enacted,
“the acquittal of [hate-crimes] defendants in state court will
frequently trigger demands for federal prosecution.”

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, lesbians,
and transgendered people among the classes of people it covers (the
existing federal hate-crimes law only covers race, but not gender,
sexual orientation, or disability, and it does not reach most
hate-crimes, but rather only those that involve federally-protected

The bill’s supporters, such as the National Center for Lesbian
Rights and the ACLU, claim the law is needed
because of the case of Angie Zapata. Zapata is a transgender woman whose
lover killed her when he found out she was biologically a man. But this
argument makes little sense, given that Zapata’s killer was swiftly
convicted and sentenced to life in prison without the possibility of
parole by a Colorado state court, which found the killer guilty of both
murder and hate crimes. (The federal hate crimes bill does not provide
for the death penalty, and its maximum penalty is the same one that
Zapata’s killer got: life without parole).

But precisely for that reason, a federal hate-crimes law is
duplicative and 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 maximum penalty available under
the federal hate-crimes bill. (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). There is no evidence that any state gives people who commit
hate crimes lesser sentences on average than people who commit
similarly violent crimes not motivated by bias.

There are plenty of reasons to oppose the federal hate crimes bill,
which is known as the Local Law Enforcement Hate Crimes Prevention Act
of 2009. But since it was used as a political wedge issue in the 2008
election by both the Democratic Party and President Obama, who support
it, there is little doubt that it will pass Congress and be signed into
law by the President.

The ACLU long opposed the loophole in
Constitutional double-jeopardy protections that the bill is designed to
exploit. But it switched its longstanding position in order to back the
federal hate crimes bill, apparently believing that civil-liberties must
be sacrificed in order to fight hate.

The ACLU’s support for the federal
hate-crimes bill is hypocritical for another reason: the bill seeks to
circumvent double-jeopardy protections recognized by a treaty called the
International Covenant on Civil and Political Rights (ICCPR), which the
U.S. ratified (albeit with a long series of reservations,
understandings, and declarations — including one dealing with double
jeopardy) in 1992. The ACLU has also long
argued that the United States should not only comply with that treaty
but give it a very expansive interpretation, and not seek to hide behind
any reservations made by the U.S. in ratifying the treaty.

Article 14 of the treaty specifically prohibits double jeopardy,
without any exception for the loophole relied on by supporters of the
federal hate crimes bill, mandating that “No one shall be liable to be
tried or punished again for an offence for which he has already been
finally convicted or acquitted.”

But the ACLU conveniently ignores the
treaty when it comes to the federal hate-crimes bill, even though the ACLU has sought to stretch the treaty’s language to
achieve a host of liberal political goals, such as mandating
“affirmative action” in the U.S. The ACLU also
has argued for an expansive interpretation of the treaty to require
benefits for illegal aliens. For example, the ACLU
criticizes the U.S. Supreme Court’s decision in the Hoffman Plastics
case, which refused to award illegal aliens backpay against employers
who fired them. The ACLU’s bizarre
interpretations of the treaty conflict not only with its language, but
also with the longstanding practices of most ICCPR
signatory countries.