Double Jeopardy In Jeopardy: Obama Signs Hate Crime Expansion

Crossposted from Stop The ACLU:

by Hans Bader

Today, President Obama signed into law a bill that will dramatically expand the federal hate crimes law, enabling prosecutors to bring federal charges against people who were previously found innocent of hate crimes in state court. The hate-crimes provisions were added to a defense appropriations bill, which the President signed in a White House signing ceremony this afternoon at around 2:30 p.m.

The new law dramatically expands the reach of the existing federal hate-crimes law that was already on the books, by getting rid of the requirement that a hate crime affect federally-protected activities to be prosecuted in federal court. It also adds sexual orientation, gender, disability, and transgender characteristics to a law that was originally designed to protect racial minorities.

The hate-crimes bill was opposed by the U.S. Commission on Civil Rights for allowing the reprosecution in federal court of people found innocent in state court. The Commission called the new law a “menace to civil liberties” because it is an end-run around constitutional guarantees against double-jeopardy.

As explained earlier, the bill’s sponsors seek to use it to reprosecute people in federal court who have already been found innocent of hate crimes in state court, taking advantage of the “dual sovereignty” loophole in constitutional protections against double jeopardy. Civil libertarians like Nat Hentoff and Wendy Kaminer thus object to the bill on double-jeopardy grounds. Backers of the bill, like the Leadership Conference on Civil Rights and Commissioner Michael Yaki, supported the bill partly as a way of prosecuting all over again people who were either found not guilty, or who were convicted only of ordinary crimes, while being acquitted of hate-crimes (like the teenagers acquitted of hate crimes in the Shenandoah incident, and the California case of Joseph Silva and George Silva).

Such re-prosecutions can be an enormous waste of money, and grossly unfair to the people who are reprosecuted, driving them into bankruptcy to pay lawyers to represent them all over again when they have already been found innocent in state court after an expensive trial. When the government re-prosecutes someone, it gains an enormous tactical advantage over the defendant from using the prior prosecution as a test-run, even if the defendant is innocent — making a guilty verdict possible even if the defendant is in fact innocent.

The bill also raises serious constitutional federalism issues under the Supreme Court’s Morrison decision.

Passage of the bill was aided by lousy reporting, in which some journalists, like Reuters, depicted the bill as simply a harmless measure to add sexual orientation to the list of protected characteristics covered by the federal hate-crimes law, ignoring its many other, far more important (and dangerous) changes to federal hate-crimes law.

Many supporters of the hate crimes bill want to allow those found innocent to be reprosecuted in federal court. 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.
But it is a view widely shared among supporters of the hate-crimes bill. Syndicated columnist Jacob Sullum pointed out in 1998 that Janet Reno, Clinton’s Attorney General, backed the bill as a way of providing a federal “forum” for prosecution if prosecutors fail to obtain a conviction “in the state court.”

Supporters of the hate crimes bill also see it as a way to prosecute people even in cases where the evidence is so weak that state prosecutors have decided not 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, a federal jury acquitted the accused, finding them not guilty.

As law professor Gail Heriot notes, “Some have even called for federal prosecution of the Duke University lacrosse team members–despite strong evidence of their innocence.” Advocates of a broader federal hate-crimes law have pointed to the Duke lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players — even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina’s attorney general conceded (and DNA evidence showed), and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations.

The Obama administration has long supported the hate-crimes bill, which it used as a wedge issue in the 2008 election.

As law professors like Jonathan Turley and Eugene Volokh have noted, the Obama administration recently urged restrictions on hate speech at the United Nations, joining in calls to treat such speech, protected by the First Amendment under Supreme Court rulings, as a human-rights violation in violation of international human-rights treaties. In the U.S., college hate-speech codes have been used to discipline students for criticizing affirmative action, discussing the racial implications of the death penalty, and calling homosexuality immoral. In Canada and Britain, hate speech laws have been used to punish religious criticism of Scientology and homosexuality.