Marty Lederman, late of Balkinization and now at the Office of Legal Counsel, signed off on the constitutionality of the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act. It’s a mechanical approach toward a vexing law, going only so far as to cover the barest necessities.
To the extent there are any quibbles with the OLC opinion, it’s the reflexive acceptance that it satisfies the commerce clause, providing that one is a true believer in Chaos Theory. Of course, a law against halitosis would survive this level of scrutiny.
Nowhere is there mention of the two fundamental problems with this new law, that it criminalizes thought and that it’s sole utility is to take a second shot at conviction when the primary shot either misses. By definition, every hate crime consists of two parts: A primary crime, already on the books and a clearly established wrong, plus a thought component. As reprehensible as those who engage in violence against others for such reasons as their race or sexual preference might be, and it is absolutely reprehensible, a murder of a gay man is still a murder. Murder is already a crime. This would make it a double crime.
Many will applaud this hate crimes bill for bringing an added dimension to the crime because of its particularly reprehensible nature. But for the double jeopardy implications, assuming one doesn’t get too caught up in the dual sovereignty loophole, I might consider signing on. Unfortunately, it’s not going to work that way. Commit a hate crime murder and your staring at two prosecutions rather than one.
What does Marty Lederman have to say about this?
Then there’s the aspect of thought, of hate, being the escalating element of the crime. Murder of a human being brings consequences. Murder of a human being because of his sexual orientation brings consequences plus. The act may be no different, but the thought changes everything.
People think horrible, terrible thoughts sometimes. It’s not a crime to hate, provided you don’t act on it. If you do, the actus reus bites you in the butt, as well it should. Criminalizing thought, however, crosses an extremely dangerous line, placing enormous power in the government to control our ability to like and dislike, to agree and disagree, even to think truly horrendous things.
What does Marty Lederman have to say about this?
The OLC memo doesn’t say. And yet, Marty Lederman says that the law is constitutional.
H/T Orin Kerr at VC
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“Criminalizing thought, however, crosses an extremely dangerous line, placing enormous power in the government to control our ability to like and dislike, to agree and disagree, even to think truly horrendous things.”
Stunning that one schooled in the law as Obama was (at Harvard no less) and having himself taught constitutional law, would happily sign off on such garbage legislation. I fear that we are going the way of G.B.
I’ve always thought that the focus in discussing murder around hate crime legislation is very strange. As you point out, murder already, by no particular coincidence, is a crime.
We do, as a society, engage in some mindreading even absent the hate crime stuff — the difference between murder, manslaughter, and negligent homicide is, from this amateur’s POV, entirely a matter of intention, as manifested by evidence. The victim (we can’t really call him a “complaining witness”) is dead in all three cases; the distinction is in the thinking (or lack thereof) of the killer, as demonstrated by behavior.
And when it comes to murder, we really do top out punishment at, depending on the jurisdiction, the death penalty or life in prison without parole; no matter what other enhancements we add to the crime, we don’t get to turn it into “life plus cancer” or, in practice, the death penalty plus.
In the case of Matthew Shepard, both of his killers got two consecutive life sentences, the second (the one who didn’t flip) went for a plea bargain while the jury was out considering whether or not he should be put to death, both without the possibility of parole.
I may be missing something, but I don’t see that that’s in practice even a slightly more severe penalty than one life sentence without parole — and the second killer could have been sentenced to death if the prosecutor hadn’t (presumably to obviate issues around any possible appeal) agreed to the plea bargain.
Where I think there’s some reason to consider such things as hate crimes is in wrongs less serious than murder, to distinguish — in the law — between an act like, say, burning trash on the neighbor’s lawn because one doesn’t like him (certainly something that deserves societal sanctions) from, say, burning a cross on the same neighbor’s lawn in an attempt to terrorize the new black family on the block into moving away. From my remove, while it’s proper to punish both malefactors, it’s also proper to say that the wrong done in the second instance is worse, and deserving of a more severe punishment.
As to your cross-burning example, bear in mind that there is already another option for violations of civil rights (think Stacy Koons and Rodney King) to cover the smaller criminal acts with bigger civil rights implications. Aside from that, the judge sentencing the defendant on the underlying criminal offense knows of the hateful intent, and within the bounds of sentencing parameters, has the authority to take that into account.
If, however, a cross-burning was dealt with in a far more severe manner, then perhaps it would turn into a lynching if the two were both punished similarly.
Burning a cross on someone’s lawn is different from burning garbage on someone’s lawn because burning a cross communicates a threat of further violence. It’s basically terrorism. Other than the ever-present issue of intent, there’s no need for thoughtcrime.
All crime is hate crime. All violence against others is hateful. All acts of violence trespass against domestic tranquility. But what hate crimes seek to do is enhance the penalties for certain acts of violence that are target specific, and the proof is usually supplied by the assailant in their own words or deeds. It is not the prosecution of thought. It is the prosecution of acts which were a provable result of those thoughts.
Nicely circular.