A few days ago, Hans Bader writing for Stop the ACLU reported on the hate crimes legislation Bill. This article is intended to be a further discussion of what is behind the language in the Bill. The question is, is double jeopardy a factor in this new legislative language?
Dual Sovereignty
The answer is kinda-sorta. It’s really more about The Dual Sovereignty Doctrine negating the double jeopardy clause in the 5th Amendment.
The government now does have the right to try hate crime suspects after they have been tried by the state, and even if already tried and found guilty by the state. This position is confirmed by a letter from the U.S. Commission on Civil Rights to members of the U.S. Senate. Read it at NationaReviewOnLine. So how does it happen a person can be tried twice for the same crime?
Here is a portion that I believe gives the DOJ the opportunity to retry a hate crime: (The text of the Bill is here).
(b) (1) IN GENERAL – No prosecution of any offense described in the subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, or his designee, that- (C) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or (D) a prosecution by the United States is in the public interest and necessary to secure substantial justice.
(b) (2) RULE OF CONSTRUCTION- Nothing in this subsection shall be construed to limit the authority of Federal officers, or a Federal grand jury, to investigate possible violations of this section.
This gives the DOJ the right to try any case on behalf of a victim they feel has not received justice, while also eliminating “the badges…and relics of slavery and involuntary servitude.”
A quick reading of the Bill might lead you to think it will simply “support” state’s with money, but it goes much deeper than the $5 million to be given to states in each of the years 2010 and 2011. If a state can “certify” the need for government assistance to “investigate or prosecute the hate crime,” then that state will get that assistance. But read about the”sham and cover” exception a few paragraphs below. We have to ask why this administration believes this legislation is necessary.
The Dual Sovereignty Doctrine expects those administering under the Doctrine to “limit” their actions. This from TheFreeLibrary:
The court did not, however, fully eliminate the double jeopardy prohibition from this context. The dual sovereignty doctrine continues to be limitedby what is referred to as the “sham” exception, which was described by the Bartkus Court.
The sham exception provides that a prosecution by one sovereign cannot be used as a “sham and a cover” for another sovereign’s re-prosecution of the same defendant.
This doctrine would operate to prevent, on double jeopardy grounds, a prosecution brought by one sovereign with the encouragement and support of another sovereign that has already failed in its attempt to prosecute the same defendant.
The doctrine is founded on the rationale that the two sovereigns are acting as one. Unfortunately, this exception has been construed so narrowly as to make it difficult to be utilized successfully.
Apparently, this DOJ and Barack Obama believe that justice is not done often enough, and courts do not punish, often enough, those who commit hate crimes. So the question remains: is it possible for any violent crime to be classified as a “hate crime” when it is perpetrated against a Jewish or a white person?
Kansas City Chiefs running back Larry Johnson issued his second apology in 12 months Tuesday and was told to stay away from the team while the NFL and the Chiefs complete their investigation into his use of a gay slur.
As Johnson was releasing his apology, a national gay rights advocacy organization called on the league and the team to take disciplinary action against the two-time Pro Bowl selection.
#2
ESPN broadcaster Bob Griese has been suspended for one week for a remark he made about NASCAR driver Juan Pablo Montoya.
Network spokesman Josh Krulewitz said Griese would not be working a college football game this week. Krulewitz said ESPN has spoken to Griese and “he understands the comment was inappropriate.”
During ESPN’s coverage of the Minnesota-Ohio State game on Saturday, a graphic was shown listing the top five drivers in NASCAR’s points race. Fellow analyst Chris Spielman asked: Where was Montoya?
Griese replied, “Out having a taco.”
#3
Pauline Howe, 67, a committed Christian, was questioned by two police officers after she wrote a letter to Norwich City Council about its decision to allow the march.
She wrote: “It is shameful that this small, but vociferous lobby should be allowed such a display unwarranted by the minimal number of homosexuals.”
#4
Florida Democrat Rep. Alan Grayson issued a written apology Tuesday evening for a comment for a month-old comment that has stirred controversy on Capitol Hill in recent days.
During a September radio interview, Grayson called Linda Robertson, an aide to Federal Reserve Chairman Ben Bernanke who has also worked as a lobbyist, a “K Street whore.”
Hmm, that’s weird, the last one has no consequences, despite being a supposed elected public official. Imagine had he been a Republican. Good thing he didn’t use a gay or racial slur, he might have been in big trouble.
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.
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.
What is wrong with kids today? I know that is cliche and makes me feel old to say it, but really! Is it a product of the age of entitlement? Why did the driver do nothing to stop this? How gutless! Insanity!
A Belleville West High School student was beaten aboard a bus on the way to school Monday, and a police spokesman said the beating could be racially motivated.
The 17-year-old victim was white and the teen assailants were black. Police released a video of the beating, which shows the victim being punched repeatedly while other students on the bus gather to watch, some cheering. It doesn’t appear that the victim did anything to provoke an attack and tried only to defend himself. Police said it all unfolded in a five-minute span.
The victim was trying to find a seat and was told by two students he could not sit next to them, police said. When he did sit down, one teen tried to push him out of his seat then began grabbing the victim’s neck and punching him in the face.
The victim eventually returned to his seat, but another student began taunting him a few minutes later. The victim was then struck in the face.
It was unclear what, if anything, the bus driver did to stop the attack. Students intervened to help the victim both times.
“In my estimation, it’s racially motivated,” said Capt. Don Sax of the Belleville Police Department. He said one reason he had formed this opinion was that many of the students, most of whom were black, yelled their support for the beating.
“There was absolutely no justification for the beating either time,” Sax said.
Racially motivated? Very probable. Provoked? We’ll find out soon enough. Justifiable? Absolutely not! All those that resorted to violence should be charged and the driver for doing nothing. Are white people covered under the same protection as blacks when hate crimes occur? Where is Al Sharpton when you need him?
I wonder where President Obama will be. He turned his friend Henry Louis Gates’s anti-police temper tantrum into a “teachable moment.” What about this truly appalling incident?
