Watch What You Think

In one of his “Washington Updates” this week, Family Research President Tony Perkins alerted readers that Hate Crimes legislation may well rear its ugly head once again. Perkins wrote that there has been talk “of attaching an amendment to the Defense appropriation bill that would make so-called hate crimes into a federal offense.”

Not surprisingly, liberal Sen. Ted Kennedy is behind the move to force what is essentially “thought crime” legislation down the throats of the American people. Unfortunately, one of his partners in this effort, according to Perkins, is GOP Sen. Orrin Hatch. By lending his name to Kennedy’s horrible legislation, Hatch makes the bill appear less onerous in the minds of many conservatives who might otherwise oppose it.

Because I’ve not seen the amendment in question (nor can I confirm that it actually exists yet), I cannot comment on its specific contents. However, there is a Hate Crimes Bill (S 966) that Kennedy introduced last summer which will more than likely serve as a guide for any Hate Crimes amendment. Here is a reminder of some of the bill’s provisions:

  • Defines “hate crime” as “a crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime, because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person.”
  • Finds that “hate crimes” affect interstate commerce (this is the constitutional justification and authority supporters of the legislation invoke to push a bill like this) by “impeding the movement of members of targeted groups and forcing such members to move across State lines to escape the incidence or risk of such violence; and by preventing members of targeted groups from purchasing goods and services, obtaining or sustaining employment, or participating in other commercial activity.”
  • Allows federal prosecutors to take jurisdiction from State law enforcement entities over “hate crimes” if the official believes that (1) “the State does not have jurisdiction or does not intend to exercise jurisdiction” OR (2) “the State has requested that the Federal Government take jurisdiction” OR (3) “the State does not object to the Federal Government assuming jurisdiction” OR (4) “the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence” (emphasis added).
  • Creates two different types of offenses: a blanket federal crime if the offense is committed because of “actual or perceived race, color, religion, or national origin” and a provisional federal crime if the offense is committed because of “actual or perceived religion, national origin, gender, sexual orientation, or disability” and occurs in way that affects interstate or foreign commerce. (The bill provides a number of ways commerce could be affected.)

Why It’s Dangerous

As I’ve noted before, not only will the bill create a type of “thought police” by criminalizing an offender’s perceived mindset during the commission of a crime (and giving future justification for criminalizing the thoughts of law-abiding citizens), but also the bill is unconstitutional, unnecessary, and will damage law enforcement efforts.

Its unconstitutionality comes in two forms. First, the bill will attempt to regulate some hate crimes by claiming a right to do so based on those crimes’ alleged effect on commerce. This excuse for increased federal involvement in state and local affairs will not pass constitutional muster. In two cases, United States v. Lopez and United States v. Morrison, the Supreme Court stopped the government’s attempts to federalize local criminal prosecution via the “regulation of commerce.” In both Lopez and Morrison, the Court held that an activity must “substantially affect” interstate commerce before the federal government may regulate it under the commerce clause. Kennedy’s bill is about federal law enforcement — a fact the Supreme Court certainly will have no difficulty distinguishing.

The second constitutional problem the Kennedy bill faces is its assertion that the 13th Amendment provides the government’s authority to federalize hate crimes. Supporters argue for the bill on the basis that the Supreme Court ruled in the 1971 Griffin v. Breckenridge case that the 13th Amendment outlaws both slavery and its vestiges. Apparently, whites who commit hate crimes against blacks are sustaining such vestiges of slavery. What of hate crimes committed by blacks against whites? Can we say they merely were trying to escape the same vestiges of slavery, or would their hatred also be an unconstitutional vestige of slavery?

An infuriating aspect of this bill is that its supporters have no evidence that state and local authorities are failing to prosecute people who commit crimes based on prejudice. In fact, the bill’s sponsors attempt to garner support by stating that they do not believe the federal government will wind up prosecuting many cases at all. This causes one to think that perhaps what Kennedy and others are seeking is federal prosecution in high-profile cases so as to generate political points by claiming the credit for punishing the guilty parties in said cases.

Though the authors of the hate crimes bill claim that their intention is to create a collaborative process under which the feds would only get involved in a few cases, nothing in the legislation would limit the government to that small role. The federal government could unilaterally take action in any case it deemed appropriate, which would eliminate any sort of collaborative effort with local law enforcement and, in its place, would create a coercive relationship.

Another practical problem with the bill is the federalization of every sexual assault. Every rape is motivated by gender and, thus, would fall under the bill’s definition of a hate crime. Nearly all violent crimes are prosecuted at the state and local levels. This is done for good reason: the federal government, unlike states and localities, lacks the experience, expertise, and local knowledge in such cases that is required to do a good job. If the federal government attempts to assume the responsibility for the prosecution of hundreds of thousands of annual rape cases, it would certainly do a worse job, likely resulting in some rapists, who would otherwise have been convicted in state or local jurisdictions, going free.

Were there evidence that state and local governments habitually failed or refused to prosecute and punish people who commit hate crimes, then the federal government would have a legitimate reason to take action against those failing governments. The fact is there is no such evidence.

The bill’s supporters use the horrific murders of James Byrd and Matthew Shepard as evidence of the need for federal hate crimes legislation to better prosecute these types of crimes. What they neglect to mention is that three men were tried and convicted in Texas state court, two of them sentenced to death and one to life in prison, for the murder of James Byrd, and the murderers of Matthew Shepard were found guilty in a Wyoming state court and sentenced to life in prison.

Sen. Kennedy’s Hate Crimes Bill is unconstitutional and unnecessary and will likely hinder the successful prosecution of criminals. Hopefully, Congress will have enough sense to prevent its passage and preserve the rights and prerogatives of state and local law enforcement agencies.