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Hate Crimes, Thought Crimes, Double Jeopardy


Conservatives have pointed out several problems with the hate crimes bill named after Matthew Shepard, which passed the House Wednesday (249-175) and awaits action in the Senate. Several attorneys and lawmakers have pointed out deficiencies and vague language in the bill, but it is important to note up front that some concerns are spurious. The specter of preachers being arrested for sermons against homosexuality appears to be one of them. (Unless, perhaps, the preacher happens to be committing a federal crime and using firearms to threaten someone in a protected class with violence at the same time he gives his sermon.)

But the two classic arguments against hate-crime legislation still apply to the Shepard bill, which expands the number of protected classes to include particular genders, sexual orientations and “gender identities,” without precisely defining all of the terms involved. The arguments are (1) hate crimes laws effectively place society’s valuation of some victims’ lives and well-being above that of others and (2) they create opportunities for prosecutions based on a defendant’s attitudes or opinions rather than his acts, effectively violating freedom of speech and thought.

Another problem with this particular bill is that it explicitly encourages federal prosecutors to try defendants twice for the same crime, even if the first trial results in acquittal.

People usually think of hate-crimes bills as sentence-enhancers – and indeed, many state hate-crime laws take that format. The Shepard bill does not. In addition to providing financial help for local prosecutors for hate crimes, it creates a new federal charge, with a ten-year prison sentence, that can be used against those who commit “crimes of violence” with firearms or explosives, or which cause serious bodily harm, motivated by hatred toward certain groups.

Among other things, the bill permits the U.S. Attorney General to initiate federal hate-crime prosecution in cases where

“the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence.”

If someone is acquitted of an alleged hate crime at the state level, this bill allows federal prosecutors to haul him into federal court for the same alleged act, based only on evidence that “hate” motivated the crime that the jury says the defendant didn’t commit. This makes use of a loophole in the constitutional protection from double jeopardy.

Rep. James Sensenbrenner (R, Wis.) discussed this provision on the House floor when he urged that the bill be re-written simply to enhance penalties for hate crimes. As he put it:

At the first trial, the person is acquitted of the violent crime, and at the second trial the person is convicted of the hate crime, meaning what the defendant says during the commission of that crime. And that ends up criminalizing free speech, because the actual act of violence the jury determined that the defendant was not guilty, but because of what the defendant said during the commission of the crime aimed at the victim, the person is convicted of saying that. That is where we have the First Amendment slippery slope. And I think if this ever happens, you will find this bill declared to be unconstitutional as a violation of the First Amendment in the blink of an eye.


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