Double jeopardy and the federal hate crimes bill

by Walter Olson on April 27, 2009

Hans Bader points out that a very important motivation for the pending expansion of federal hate-crimes law is to exploit a loophole the Supreme Court has created in its application of the important Constitutional principle, by exposing defendants to jeopardy a second time despite acquittal or dropping of charges in state courts.

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Civil Rights Commission Members Urge “NO” Vote on Federal Hate Crimes Bill | OpenMarket.org
05.01.09 at 11:46 am
A Second Bite At The Prosecution Apple « Justbkuz
05.01.09 at 1:39 pm

{ 8 comments }

1 Todd Rogers 04.27.09 at 8:00 am

This is simply scary. As soon as a couple of members of under-represented classes get double-prosecuted for hate crimes, someone will cry “Injustice!” and this will work its self out. But I’d hate to be one of those poor folks who has to rot in jail which it gets fixed.

2 shg 04.27.09 at 8:42 am

The issue of dual sovereignty prosecutions isn’t new. There are numerous laws that traverse state and federal jurisdiction which subject a person to multiple prosecutions, as well as the federal overarching civil rights laws, designed back in the Jim Crow days to prosecute whites who lynched blacks but would escape prosecution because the local sheriff wore a hood as well.

This is simply the latest variation on an old theme, with “hate crimes” being in vogue and hence demanding a multiplicity of laws so that every politician can claim that he stands firmly against them. Whether people love duel sovereign prosecutions or hate them tends to be a matter of whose ox is gored, which is almost always the case.

3 SiliconDoc 04.27.09 at 9:57 am

Funny, it’s not supposed to be about who loves or hates them, it’s about following the Constitution.
I was disgusted after OJ was acquitted, the entire ranting raging press fully supported the goldman civil suit that claimed, afterwards, that no, indeed the verdict meant absolutely nothing and he was, guilty.
I know, some egghead will tell me there’s a big difference between civil and criminal… or let’s not forget about administrative law, and maritime law, and what the heck -marshall law…
The point is the same – he was acquitted right or wrong, and when the state wins or feds win they ALWAYS demand compliance – but not when a citizen wins… then it’s aok to claim it doesn’t count – and to slap them around in some other form of court or law.
The Constitution is a JOKE – and DON’T tell me the scotus or some other jerks running the system into corruption and tyranny decided this and therefore I’m wrong.
Nope, I’m not wrong, I can read, and I understand the premise, and the reasons for it – exactly like the OJ trial and then, the reversal – and the endless HUNTING –
This is EXACTLY what the Constitution said is WRONG and is NOW ALLOWED.
What a crock of bull this whole nation has become. A crock of bull.

4 Robert 04.27.09 at 10:23 am

I think I’m one of the few members of several minority groups (Jewish, “Person of Color”, gay) who is opposed to hate crime laws for the reasons cited in the article, and then some.

To me it’s creating “thought crimes”. If the penalty for the physical crime (assault, vandalism, etc) aren’t great enough, raise the penalties for them. But to add the perpetrators beliefs in the mix to charge with additional crimes seems like a bad idea.

One thing that may work is consider pre-meditation for acts of vandalism, etc. That would handle the difference between someone–like the official of the Mormon Church who was caught on my security system vandalizing a campaign sign on my property–who sets out to commit an act of vandalism, and some random act of some kids walking around with a spray can.

5 SiliconDoc 04.27.09 at 10:32 am

Now we have the ban on emotion and thoughts – the perfect Orwellian law – a hate crime – whereby they decide based upon your attitude or mindset how to really put the coals to you, in public, with immense HATRED spewed up in the courtroom – and endless HATE FILLED OUTRAGE – where EVERYONE must denounce the suspect as not even human, or be ostracized.
Like I said, it’s INSANE, not to mention absolute HYPOCRISY of the highest order.
Hate the hater so much, with so much vile putridity, that there must be a special public high profile punishment and smearing to the corners of the earth… PURE HYPOCRISY IN LAW.
ABSOLUTELY THE HIGHEST FORM OF IRONY IMAGINABLE. COULDN’T BE WORSE.

6 Hans Bader 04.27.09 at 11:16 am

The possibility of double jeopardy always exists when Congress passes a broadly-worded criminal statute, under the “dual sovereignty” loophole.

But for the federal hate-crimes bill, it’s not a bug, it’s a feature.

Few federal prosecutors are going to indict someone for a crime like odometer fraud after a state court has already acquitted the defendant of the same or similar crime. It would be viewed as a waste of resources.

But hate crimes are different, and plagued by politics. The Duke Lacrosse case was a classic example: even now, there are people who claim the defendants were guilty and need to be federally prosecuted for a hate crime, even though the State of North Carolina has now admitted that they are innocent.

Many supporters of the federal hate crimes bill want it passed precisely because it would allow them to reprosecute people who have already been acquitted by juries that gave the defendant the benefit of the doubt, or had insufficiently progressive or politically-correct attitudes. 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.

I also think that portions of the federal hate-crimes bill violate the Supreme Court’s decision in United States v. Morrison, 529 U.S. 598 (2000), which held that Congress’s power to regulate private, intrastate non-economic activity is limited under both the Commerce Clause and the Enforcement Clause of the 14th Amendment. (That case struck down a portion of the 1994 Violence Against Women Act).

And I think that the reprosecutions the bill is intended to promote violate Article 14 of the International Covenant on Civil and Political Rights, a treaty the U.S. signed in 1992.

7 William Nuesslein 04.28.09 at 7:29 am

During the OJ murder trial the defense teem objected to continuing DNA tests as being piling on, when stranger DNA would have helped their reasonable doubt argument. There was a fantastic ignorance of evidence and logical deduction in that case and others.

What would be evidence of hate for a hate crime? The Goldman boy in the OJ case was a Jew and was stabbed 47 times. Would that prove hate? Because of the frenzy of the attack? Because of possible antisemitism?

The concept of hate crime is anathema to law. I HATE it.

8 Hans Bader 04.28.09 at 10:40 am

Speaking of OJ: as I have noted elsewhere, I see no problem whatsoever in the civil suit against O.J. Simpson after his criminal acquittal. I think the civil jury was right to award substantial damages against O.J. for killing his two victims.

The essence of double jeopardy is that people should not be criminally reprosecuted in federal court after being acquitted in state court.

CIVIL proceedings are a different matter, because the burden of proof in civil cases is lower. In criminal cases, the state loses unless it can show the defendant is guilty beyond any reasonable doubt. In civil cases, the defendant is liable if he is merely more likely than not to have committed the deed alleged. That’s a much lower standard of proof, because the defendant’s liberty is not at stake.

I have no problem with people being civilly sued for crimes (such as hate crimes) even after they were acquitted.

But the federal hate-crimes bill goes way, way, way beyond that. It allows people to be criminally reprosecuted over again based on weak evidence, which in the real world means not just a terrifying ordeal, but also bankruptcy for all but wealthy people (how many people could afford to pay a lawyer to represent them in two successive criminal trials — which, given the enormous cost of defending against a criminal prosecution, could easily cost them over $100,000 in each?)

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.”

Moreover, it is also likely that federal prosecutors will bring charges in some cases where evidence is so weak that state prosecutors with better things to do decline 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 case, a federal jury acquitted the accused under existing federal law (which is narrower than it would be if the federal hate crimes bill passes), finding them not guilty.

This is a waste of prosecutorial resources, that harms crime victims in other cases that truly deserve federal prosecutors’ attention and assistance.

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