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Hate-Crime Laws and the Expansion of Federal Power
How does the Thirteenth Amendment justify making certain kinds of violence a federal crime?


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John Fund

Forty-five states and the District of Columbia provide additional penalties for crimes that they classify as “hate crimes,” over and above what would have been available if the same crime been committed with a different motivation. In 2009, President Obama signed into law a federal hate-crimes statute that adds a third level of criminalization for violent crimes that occur “because of” the victim’s “actual or perceived race, color, religion, national origin, ethnicity, gender, gender identity, disability, or sexual orientation.”

Actual hatred is not required. It is enough that there is a causal connection between the crime and one of these grounds.

Like all federal criminal statutes, this one gives federal authorities the power to prosecute a defendant who has already been prosecuted by state authorities. They can even prosecute a defendant who has been acquitted. Double-jeopardy protections do not apply.

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But can such far-reaching federal authority to try a defendant twice be justified under the Constitution, especially given how emotionally charged these prosecutions often are? In the absence of evidence that states are “falling down on the job,” shouldn’t such prosecutions be state-controlled? On Friday, the Supreme Court will decide if it will hear a case directly challenging part of the federal government’s claim of authority in this area.

The Obama Justice Department has argued that the part of the 2009 Hate Crimes Prevention Act that governs race is constitutional under the 13th Amendment, which reads that: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

How is it that one can read the 13th Amendment to prohibit criminal activity, though racial in nature, if it has nothing to do with “slavery or involuntary servitude?” The Supreme Court ruled in the 1883 Civil Rights Cases that “Congress has a right to enact all necessary and proper laws for the obliteration and prevention of slavery with all its badges and incidents.”

For 85 years, that doctrine was used properly to fight against criminal laws at the state level that ensnared sharecroppers and agricultural laborers in a cycle of debt that sometimes forced them to remain on the plantations. This system of peonage roughly approximated many of the attributes of antebellum slavery. But starting with a 1968 housing-discrimination case, the Supreme Court began stretching the phrase “badges and incidents” beyond any tenuous connection to slavery. In Griffin v. Breckenridge (1971), for instance, the Court held that “the varieties of private conduct that [Congress] may make criminally punishable or civilly remediable extend far beyond the actual imposition of slavery or involuntary servitude. . . . Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery.”

These subsequent decisions deviated from the Civil Rights Cases, which had explicitly rejected this extension. After noting that the 13th Amendment “has respect not to distinctions of race or class or color, but [only] to slavery,” the Court concluded that “it would be running the slavery argument into the ground to make it apply to every act of [private] discrimination. . . . Mere discriminations on account of race or color were not regarded as badges of slavery.”

But at least these cases were interpreting statutes passed during the Reconstruction Era, when Congress plausibly was motivated by a desire to prevent slavery from returning. Not so with the Hate Crimes Prevention Act of 2009.

The facts of the crime involved in Friday’s challenge before the Supreme Court are brutal but highly instructive regarding just how much the federal government is stretching its authority. In 2010, William Hatch, a restaurant worker in Farmington, N.M., conspired with two of his co-workers to persuade a mentally disabled Navajo man (known in court records only as “V.K.”) to go to the apartment of one of the workers. The three white men then drew on the man’s back with markers. “They told him they would draw ‘feathers’ and ‘native pride’ but actually drew satanic and anti-homosexual images,” according to the charges filed in court “They then shaved a swastika-shaped patch into V.K.’s hair. Finally, they heated a wire hanger on the stove and used it to brand a swastika into V.K.’s arm.”

New Mexico prosecutors charged the men with kidnapping and aggravated battery, as well as conspiracy to commit both crimes.

While state prosecution was pending, the federal government charged the assailants with violating the portion of the 2009 Hate Crimes Prevention Act that makes it a felony to physically attack a person because of his race. In May 2011, Hatch was convicted in state court of conspiracy to commit aggravated battery, but otherwise acquitted.



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