Hate Crimes Legislation

The House of Representatives voted today to pass the Local Law Enforcement Hate Crimes Prevention Act of 2007. The Senate is soon likely to pass the bill as well. The president, on the other hand, is suggesting a possible veto.

Conservative organizations such as Focus on the Family Action are up in arms about the bill. Here's a quote from their call to petition Congress to reject the bill:

Gary Schneeberger, senior media director of government and public policy at Focus on the Family Action, said such “a two-tiered justice system” could erode freedom of speech – and ultimately lead to pastors being arrested “for 'inciting violence' simply for saying what the Bible says about homosexuality."

Liberal organizations such as the Human Rights Campaign are thrilled about the bill. Here's a quote from their article lauding the bill's passage:

"This is a historic day that moves all Americans closer to safety from the scourge of hate violence," said Human Rights Campaign President Joe Solmonese. “Today, legislators sided with the 73 percent of the American people who support the expansion of hate crimes laws to include sexual orientation and gender identity.

Basically, the bill accomplishes three things:

• It empowers the federal government to provide special financial assistance to local law enforcement to prosecute "hate crimes".
• It empowers the federal government to directly prosecute hate crimes, regardless of when or where or how they were carried out (previous laws restricted jurisdiction to areas where the federal government would have criminal jurisidiction anyway; this law makes a special exception for any "hate crime", allowing the federal government to prosecute regardless.)
• It expands the definition of "hate crime" to include sexual orientation and "disability" (whatever that means specifically... it isn't defined).

The Focus on the Family Action statement seems ridiculous to me. We've had federal and state "hate crimes" legislation on the books for years, and they haven't proven to be any threat to free speech. Various white supremacist groups are still allowed to exist, and to put out their racist literature, without being arrested for "thought crimes". I see no reason why this should start anything different.

This bill, in itself, clearly retains free speech protections. The bill only comes into play when there is a violent crime. At that point, the federal justice department can determine (in connection with local law enforcement, generally) whether it can reasonably be surmised that the motive for the crime was "hate" against a protected group of people. If so, then the extra protections in this bill come into effect.

There is not, for example, a provision in the bill to punish the speech of someone who is claimed to have motivated a hate crime from somebody else. There's no indirection prosecution of speech, and no sign that it is forthcoming.

Just to be extra clear on this point, the bill has a provision that reads:

Nothing in this Act, or the amendments made by this Act, shall be construed to prohibit any expressive conduct protected from legal prohibition by, or any activities protected by the free speech or free exercise clauses of, the First Amendment to the Constitution.

For all those reasons, I consider that objection raised by various conservative groups to be specious. The more often they raise baseless fear-mongering objections to bills like this, the less I trust their opinions on other matters.

On the other hand, I don't think this bill does much to "move all Americans closer to safety from the scourge of hate violence", either. Hate-motivated violence is, in the end, still violence. The majority of hate-motivated violence can be prosecuted equally well as simply violence. This bill does not make any activity criminal that was not previously criminal. It does not apply significant penalties to any activity that was not already subject to significant penalties. So, in that way, it does not provide any additional deterrent to someone who might carry out a hate-motivated violent crime. It provides some assistance for local law enforcement in prosecuting these crimes; and it lets the federal government step in if local law enforcement is (in the federal government's view) corruptly refusing to prosecute. I don't see how any of that brings anybody "closer to safety".

There are some significant concerns about the bill which have nothing to do with the "thought crimes" fear-mongering of certain conservative groups. Those concerns are best laid out in this post on the Volokh Conspiracy blog, and an earlier post that goes into more detail.

Many of the objections can be summed up by saying that there is no evidence that the law is necessary, or that it will be effective. If the law isn't necessary or effective, then it is at best a symbolic gesture, and at worst may have unintended consequences.

The objection that makes the most sense to me is given by the author of the earlier post:

The column argues that in some cases local jurisdictions lack the resources to prosecute hate crimes, citing the Matthew Shepard case as an example of the high expense involved. Lack of resources is a common complaint of law enforcement authorities at every level — from prevention to investigation to prosecution. But there is no evidence that this claimed lack of resources is a problem unique to hate crimes, or to crimes against gays. Perhaps there should be a general federal local law enforcement assistance act, but why give special assistance to one class of crimes that seem no more costly to law enforcement than another?

A general law enabling the federal government to assist local law enforcement (upon request, and upon approval) with resources and/or finances would make some sense to me. A specific law allowing this only for "hate crimes" seems peculiar. The HRC article refers to the "extraordinary expenses involved in hate crime cases", but it's not clear to me that hate crime cases as a rule have extraordinary expenses. The HRC article gives one example of an expensive case, expensive largely because it was high-profile... but there are plenty of other expensive high-profile cases that have nothing to do with hate against a group of people. Why shouldn't the federal government be allowed to help out with those cases as well, if necessary?

It seems that the sense of necessity of the law is largely built on anecdotal evidence, and that it's purpose is more symbolic than efficacious.

And, there's a larger concern, from a legal Constitutional standpoint. For more details than I can give here, see points (4) and (7) in the earlier Volokh Conspiracy post. But, it seems likely that this law is an unconstitutional intrusion of the federal government on areas where states have sole authority. The text of the bill itself goes to great lengths to try to alleviate this restriction by pointing out how it is related to "interstate commerce" which the federal government can constitutionally regulate. But, you can tell it is stretching when one of the hooks in the bill connecting it to "interstate commerce" reads that a crime can be federally prosecuted if:

the defendant employs a firearm, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce

Yeah, you read that right. If the gun or knife or whatever was bought 10 years ago in Texas, but the crime was committed in Oklahoma, then AHA!... this crime affects "interstate commerce" and therefore has federal jurisdiction. I think (and the much more erudite legal minds at Volokh Conspiracy seem to think) that that level of justification goes beyond even the broadest interpretations of the Commerce Clause that our courts have adopted in recent decades.

To its credit, the statement from the White House announcing the possibility of a veto lists these legal and evidentiary concerns, and ignores the "thought crime" concerns that seem to have no basis in reality. But it seems odd to me that the concerns listed in that document (and that I have listed here) are sufficiently grave to warrant a veto, or even the threat of one. If the bill is largely symbolic, and will probably be rejected as unconstitutional anyway, why veto it?

The only reason I can think of is a political one, shoring up support among core constituencies. Unfortunately, there are a great many conservatives, mostly religious, who do not understand the legal ramifications of the Commerce Clause; who are easily persuaded by a news release from an organization such as Focus on the Family Action; and who have no exposure to information from sources that contradict their accepted views. If Bush doesn't veto this bill, they will be convinced that he has willingly opened the doors to prosecution of Christians for "thought crimes" and the end of religious freedom for Christians in America.

Avoiding that ire among a core constituency is the only sensible reason I can think of to veto the bill. It seems to me it would be better to let the bill pass, serve its symbolic purpose, and be invalidated by the courts the first time it is actually put into use. In the end, maybe that's what Bush will decide to do.

Mark