Republicans like to tell you that the government is too big. They also rightly complain that we have an overregulation problem (which they too often wrongly conflate into an over-incarceration problem). Overregulation includes Washington’s criminalization of too much conduct that should not be made illegal (or at least should not be subject to criminal prosecution) or that should be left to the states to prosecute. The Framers, after all, gave us a system in which the states are sovereign, governing their own internal affairs. The federal role, particularly in the administration of criminal justice, is supposed to be limited to activity that is interstate or international in nature, or that affects some obvious federal interest (such as assaults on federal officials).
But then Republicans get elected and they realize there is no political advantage in this position. The public cares about crime, especially such shocking crime as Saturday’s massacre at the Tree of Life synagogue in Pittsburgh, in which an anti-Semitic gunman, Robert Bowers, killed eleven people and wounded six others, including four police officers who responded to the shooting spree.
When stunning crime that demands swift, decisive retribution occurs, public officials want to be seen as answering the call. Thus did Attorney General Jeff Sessions immediately vow that the federal government would file “hate crimes” charges and other allegations, “including charges that could lead to the death penalty.” Sure enough, by day’s end, the Justice Department announced that prosecutors had filed a 29-count criminal complaint in Pittsburgh federal court. Meanwhile, police in Pittsburgh filed a 34-count complaint of their own in Allegheny County Court.
One would like to think that this is law enforcement presenting an emphatic, unified front against an atrocious offender. Alas, the cynic in me wonders whether a turf battle is afoot. I also wonder if a needlessly divisive debate over the death penalty is teeing up, one that would obscure the important question of whether there is a federal interest here.
Spoiler: No, there is not. There is a federal duty to support state law enforcement. But this is an intrastate mass murder; the Justice Department has no business interfering in order to vindicate the federal regulation of interstate commerce, which has nothing to do with it. And there is no federal interest in punishing bias-driven crime; Pennsylvania has that covered, and the assertion of such a federal interest is just a preening big-government pretext to federalize state crime.
The Death Penalty
The Justice Department press release states that the 29 charges it has lodged include eleven counts of obstructing the exercise of religious beliefs, an offense of the civil-rights laws codified in Section 247 of the federal penal code. As we shall see, this congressional enactment is sheer virtue-signaling, with no law-enforcement value and scant constitutional grounding. For starters, though, the salient point is that the Section 247 crime is a capital offense if death results. Federal prosecutors have charged one count for each of Bowers’s eleven murder victims.
Bowers’s eleven killings are, of course, first-degree murders under Pennsylvania law; they were premeditated, willful, and malicious. Yet, although the state has the death penalty on the books for first-degree murder, its Democratic governor, Tom Wolf, imposed a moratorium on capital punishment shortly after taking office in 2015. This is consistent with Democratic dogma that the administration of capital punishment oozes racism — which sounds great when a pol is stumping for office in Philadelphia but becomes inconvenient when the pol gets elected, a white bigot massacres innocent people in quiet Squirrel Hill, and the Justice Department comes muscling in with its death-penalty statutes.
Pennsylvania’s moratorium remained in place while a report was being prepared. The report was finally issued in June, and, as expected, it is very critical of the state’s death-penalty practice. It proposes significant changes. Having pushed for the report for just this purpose, Governor Wolf is in no position to lift the moratorium unless the proposed changes are made. His Republican opponent in the upcoming election, Scott Wagner, favors the death penalty but he is way behind in the polls.
Only three people have been executed in the 40 years since Pennsylvania reinstated the death penalty. There have been lots of terrible crimes over the decades, but the state’s citizens are not clamoring for capital punishment. Full disclosure: I have long been ambivalent about the death penalty; but I do not oppose it, I think the claims that it violates the Constitution are frivolous, and I believe it should be up to the people of each state to decide whether and under what circumstances to impose it.
It is not my purpose to make a philosophical argument about capital punishment. My point is about federalism. What happened Saturday in Pittsburgh is a national outrage, but it is a state crime. To my mind, the critical thing is that state and federal investigators work cooperatively to assemble the most compelling case possible, so that Bowers will be justly convicted. Whether he should be put to death rather than imprisoned for the rest of his days should be up to the people of Pennsylvania, not the bureaucrats in Washington.
The death penalty is an intensely divisive issue. We are already too deeply divided a nation; the last thing we need right now is a death-penalty debate. The synagogue massacre should unite us. If the state wants life imprisonment, fine; if it does not, Pennsylvanians should elect Scott Wagner. But Washington should stand down.
On Saturday, shortly after the murders, President Trump asserted, “People who do this should get the death penalty.” Well, he is entitled to his opinion, as we all are. But in this instance he should keep his views to himself. Again, it is for the people of Pennsylvania to decide if their state has capital punishment. And while I do not believe there should be a federal prosecution here, the Trump Justice Department seems determined to have one. If that is the case — as we have observed in other contexts (see, e.g., here) — why is the president helping Bowers? The defense will use the president’s statements to argue that the Justice Department did not follow its death-penalty procedures — Sessions, in fear of losing his job, just did what Trump demanded be done. If the president wants his prosecutors to succeed in getting the death penalty for Bowers, his job is to make sure the proceedings are conducted with rectitude, not put his thumb on the scale.
Interstate Commerce and ‘Hate Crimes’
I am a Sessions fan. His controversial recusal from the Russia investigation was premature and overbroad, but there is no doubt that a recusal, though a narrower one, would have been ethically required. He has gotten a raw deal as the president’s piñata, and one can certainly sympathize with his impulse to take very public, decisive action after the synagogue massacre: An aggressive push to subject Bowers to capital prosecution will be pleasing to President Trump, the Trump base, and many law-and-order conservatives; death would be a perfectly appropriate penalty for so heinous an array of crimes.
That said, this is not a federal case.
As already noted, the federal complaint charges Bowers with the civil-rights crime that Congress entitled “damage to religious property; obstruction of persons in the free exercise of religious beliefs.” The statute allows capital punishment if anyone was killed during the crime. There is no doubt that Bowers murdered eleven people while obstructing their religious observance and damaging the synagogue.
There is just one problem: The federal statute also requires the government to prove beyond a reasonable doubt that the offense took place in or somehow affected interstate or foreign commerce.
You may be asking, “What the hell does that have to do with whether an anti-Semite targeted and massacred Jews in their house of worship?” It is a good question. The answer is: Interstate commerce has nothing whatsoever to do with the crime; it is merely the vehicle by which the federal government tries to justify grabbing jurisdiction of a state murder case.
At the moment, Bowers’s mass-murder attack appears to be a wholly intrastate transaction. The FBI is undoubtedly searching high and low for what in the biz is known as an “interstate hook”: Did Bowers cross state lines in some way connected to the shooting spree, did he acquire his guns outside Pennsylvania — or were they perhaps manufactured outside the state? Give them long enough and they’ll come up with something. But it won’t have anything to do with what happened in the synagogue. It will complicate what ought to be a straightforward state murder case by asking a bewildered jury to weigh whether the murders somehow implicated, of all things, interstate commerce.
Democrats love the Constitution’s commerce clause (Article I, Section 8). As expansively interpreted since the New Deal era, it enables stifling regulations on all manner of state functions. (You really want to “drain the swamp”? Then rethink commerce-clause jurisprudence.) In the criminal context, it is the backbone of the civil-rights laws. These are straightforward state murder, assault, and extortion cases that Washington turns into federal crimes on the theory that some interstate connection, no matter how irrelevant or infinitesimal, must have been involved.
Why do that? Because there is no constitutional federal interest in what the Left actually wants to criminalize: thought. This is politics, not law enforcement. It is politically expedient for progressives to conjure up a caricature of Archie Bunker–type white males as the default population, which harbors prejudice based on race, ethnicity, religion, sexual preference, gender identity, and so on. Violent crimes, rather than being addressed as such, are instead turned into “hate crimes” stirred by these biases . . . which, of course, we need Washington to eradicate.
Note the bait and switch: The Left can’t say that addressing bias is actually a basis for federal prosecutorial jurisdiction (or at least they couldn’t until 2009 — we’ll come to that). Again, the purported federal interest in these statutes is interstate commerce, which is comical since no one in a murder case cares a whit about interstate commerce. What progressives want to hype is bias . . . and, naturally, “limited government” Republicans go along with this big-government grab because they want to be seen as tough on crime, not pro-bigot.
It is all wholly unnecessary. We are talking about simple state crimes of violence. If the accused was motivated by racism, anti-Semitism, or other forms of noxious prejudice, the judge can take that into account in imposing sentence. Or the state, if it wishes, may enact bias legislation that exacerbates penalty provisions. Indeed, Pennsylvania has done just that. Its hate-crimes statute is entitled “Ethnic intimidation,” but it covers violent crimes committed with “malicious intention” toward the familiar categories: “hatred toward the race, color, religion or national origin of another individual or group of individuals.” And in fact, the last 13 counts in the state complaint against Bowers charge ethnic intimidation.
The Game, Explained
Now, a lesson on how big-government razzmatazz works.
There is no general, overarching federal police power. Under the Constitution, the states were supposed to handle virtually all law enforcement, and certainly all enforcement involving offenses committed wholly within their territories — common crimes of violence. The federal government may exercise police power only in connection with some enumerated federal responsibilities, such as regulating interstate commerce. Its jurisdiction is supposed to be reserved for real interstate-commerce stakes, not invoked as a pretext to regulate non-federal interests.
So what do progressives do? They use the commerce clause as a pretext to enact what, with great fanfare, are branded not commerce crimes but “hate crimes.” After that goes on for a number of years, the public gets used to the notion that there must be a federal interest in criminalizing bias. Where is that in the Constitution? Nowhere . . . but that doesn’t stop a movement that claims the Constitution is a living, evolving, ever-changing organism.
Once Americans have been inured for a couple of decades to the politicized “hate crimes” regime, then along comes the Obama administration in 2009 arguing: Let’s drop the commerce-clause pretense and pronounce that there is a federal power to wipe out bias.
Thus it was that, in 2009, President Obama signed the “Local Law Enforcement Hate Crimes Prevention Act,” a critical component of which is the “Hate crime acts” provision codified in Section 249 of the penal code. Section 249 creates a pair of crimes involving bias-motivated violence. The two are very similar, but they have one telling difference.
The first criminalizes the willful causing of bodily injury (including by firearm) because of the victim’s race, color, religion, or national origin. If death results, the accused “shall be imprisoned for any term or years or for life.” The second criminalizes the same behavior — the willful causing of bodily injury — and carries the same penalty. But it does two interesting things: 1) it omits race and color but adds to religion and national origin the following categories: gender, sexual orientation, gender identity, and disability; 2) it requires a nexus of some kind between the causing of bodily injury and interstate commerce.
Observe: There would be no reason to require an interstate-commerce connection to a violent crime if bias, by itself, were a sufficient basis for federal jurisdiction. The drafters of this legislation plainly knew they were on constitutionally thin ice. Also, by omitting bias based on racism (or color) from the crime requiring a commerce-clause nexus, the Obama administration and Democratic Congress were implicitly claiming that concerns about racism, by themselves, are enough for the federal government to exercise jurisdiction over state crimes. Because everything, you see, is always about racism.
Interestingly, the Justice Department has not charged Bowers with the Section 249 hate-crimes offense, even though his conduct perfectly fits the statute — he clearly killed people because of their religion. I believe there are two reasons for this ostensibly odd omission. First, Section 249 lacks a death-penalty provision. Attorney General Sessions’s rationale for a federal prosecution is that the feds can impose capital punishment. Section 249 does not help on that score. (Progressives are overwhelmingly against capital punishment. It is not in Section 249 because they enacted it in 2009, when they had solid control of Congress and the White House and could enact whatever they wanted.)
More telling is the second reason the feds have failed to charge an obviously applicable federal hate-crimes law against Bowers. Section 249 mandates that, before a prosecution may be brought under it, the attorney general must certify that (a) the state does not have jurisdiction; (b) the state has asked the federal authorities to take over the case; (c) a prior state prosecution — because of a not-guilty verdict or a light sentence — has “left demonstrably unvindicated the Federal interest in eradicating bias-motivated violence”; or (d) a federal prosecution is necessary to secure substantial justice.
There is no way Sessions could make this certification. Pennsylvania has jurisdiction, it has filed charges, it is highly likely Bowers will be convicted and sentenced to life imprisonment, and his convictions will surely include the afore-described state-law hate-crimes offenses.
That is, if the feds had sought to bring a Section 249 case, the attorney general’s inability to make the required certification would powerfully illustrate that there is no need for a federal prosecution.
Bowers’s horrific murders are a state law-enforcement matter. Whether he is subjected to the death penalty is Pennsylvania’s decision to make, not Washington’s. There is no federal interest here. The Justice Department’s charges are constitutionally dubious overkill. Federal resources could be of great value to Pennsylvania’s case if Attorney General Sessions made them freely available to Pittsburgh’s police and prosecutors. But that should be the limit of Washington’s role.
The whole nation should rally behind the Tree of Life community in Pittsburgh. In the same spirit, the Trump Justice Department should rally behind the state authorities, not compete with them.