'Hate' hysteria

THE Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, which President Obama plans to sign soon, is named after two men who were murdered in 1998. Shepard, a gay college student, was beaten to death in Wyoming. Byrd, a black hitchhiker, was dragged to death behind a pickup truck in Texas. Bigotry seemed to play a role in both crimes.

Here is something else Matthew Shepard and James Byrd have in common: Their killers were arrested, tried, convicted and sentenced to life in prison or death -- all without the benefit of hate-crime laws, state or federal.

Shepard: Killed by bigots -- who were caught and convicted.

Hence it is very strange to slap their names onto a piece of legislation based on the premise that such crimes might go unpunished without a federal law aimed at bias-motivated violence.

In more than a decade of lobbying for this law, its supporters have never shown that state officials are letting people get away with murder, or lesser crimes of violence, when the victims belong to historically oppressed groups.

Instead, they have presented the legislation as a litmus test of antipathy toward violent bigots and sympathy for their victims. Given this framing, it's surprising the law's opponents managed to resist it for so long, when all they had on their side was the Constitution and basic principles of justice.

As the Supreme Court has noted, the federal government has no general authority to fight crime. Yet this law covers any violent crime where the victim is selected "because of" his actual or perceived race, religion, national origin, gender, disability, sexual orientation or gender identity -- as long as the crime in any way involves or "affects" interstate commerce, even if the connection is limited to a weapon made in another state or country.

Like state laws that enhance penalties for crimes when they are motivated by bigotry, the federal law requires courts to examine defendants' beliefs. To prove that a defendant selected his victim based on one of the prohibited criteria, prosecutors inevitably will cite things he said at the time of the crime and other evidence of his hatred toward members of the victim's group.

If someone hits me in California with a baseball bat made in Kentucky, that is not a federal crime. But if he does exactly the same thing while calling me a "dirty kike," it is. No doubt the prosecutor also would deem it relevant that my attacker owned a dog-eared copy of "Mein Kampf" and belonged to a neo-Nazi group.

Consider the impact of federalizing this crime. In California, the maximum sentence for assault with a deadly weapon is four years. The state's hate-crime statute could extend that sentence by up to three years, for a total of seven. By contrast, the maximum sentence under the new federal law is 10 years. Hence my assailant could serve more time for his anti-Semitism than he does for his violence.

Imagine my attacker is acquitted in state court because the jury accepts his self-defense claim. Or suppose he is convicted and gets a one-year sentence. He can still be prosecuted in federal court: The law allows a do-over if the Justice Department decides "the verdict or sentence obtained pursuant to state charges left demonstratively unvindicated the federal interest in eradicating bias-motivated violence."

The idea, as then-Attorney General Janet Reno explained when the law was first proposed, is to "give people the opportunity to have a forum in which justice can be done if it is not done in the state court."

Although such serial prosecutions are permitted under the doctrine of "dual sovereignty," they look an awful lot like double jeopardy, prohibited by the Fifth Amendment.

House Speaker Nancy Pelosi nevertheless claims the federal hate-crime law upholds "the ideals of our Founding Fathers" -- who evidently were big on punishing people for their beliefs, retrying defendants after they're acquitted and letting Congress make a federal case out of anything that attracts its attention.

Jacob Sullum is a senior editor at Reason magazine.