Federal Hate Crimes Bill

Federal Hate Crimes Bill

I was saying a while back that my Congressman, Walt Minnick (D-ID), was so conservative that I could wonder if his predecessor, Bill Sali, had just changed his name. Well, Minnick just voted in a way that reminds he is not Bill Sali. I'm disappointed but not surprised.

The bill in question is misnamed after Mathew Shepard. As ABC's 20/20 demonstrated some years ago, Matthew Shepard's murder was not because Shepard was homosexual, but because he was an easy mark for two robbers. Indeed, one of the two men convicted of Shepard's murder was bisexual:

O'Connor had known Aaron McKinney for years. In flush times, McKinney partied in O'Connor's limos, and, in fact, McKinney and his girlfriend lived for a while in an apartment on O'Connor's property.
O'Connor says he never heard McKinney express any anti-gay attitudes. In his interview with Vargas, O'Connor reveals his belief that McKinney is bisexual. "I know of an instance where he had a three-way, two guys and one gal," he said. "Because he did it with me."
O'Connor added, "I know he's bisexual. There ain't no doubt in my mind. He is bisexual."
McKinney's former girlfriend Price says she now believes that as well. "He was always into trying to talk me into having a three-way with one of his guy friends," she said.
In her prison interview with McKinney, Vargas asked McKinney directly whether he had had any sexual encounters with men. McKinney said no.
Displaying a strong aversion to homosexual sex was a tactic McKinney tried at his trial. His lawyers developed a so-called "gay panic defense," claiming homosexual abuse McKinney suffered as a child caused him to overreact to a sexual advance by Shepard and triggered the violent attack.
Hoping a Wyoming jury would be sympathetic to gay panic did not pay off. McKinney was found guilty and wound up with two life sentences, assuring he'll spend the rest of his life in prison, the same sentence received by his accomplice Russell Henderson.

There are a lot of concerns about this bill. Some of the concerns seemed far-fetched to me (and that's being polite). I agree with David Freddoso's observation at National Review Online:

Several attorneys and lawmakers have pointed out deficiencies and vague language in the bill, but it is important to note up front that some concerns are spurious. The specter of preachers being arrested for sermons against homosexuality appears to be one of them. (Unless, perhaps, the preacher happens to be committing a federal crime and using firearms to threaten someone in a protected class with violence at the same time he gives his sermon.)

I also don't find particularly persuasive the claim that such a law violates freedom of thought, because it ties punishment for a criminal act to statements or beliefs that the criminal holds, thereby punishing what the criminal feels. But many of our laws do that.

Mr. X shoots and kills Mr. Y. If Mr. X was being reasonably careful in his actions, this might be an accident, and a jury will return excusable homicide. If Mr. X gets into argument with Mr. Y who he doesn't know, and shoots Mr. Y, the jury will look at the absence of malice aforethought, and perhaps find Mr. X guilty of manslaughter. Add in malice aforethought (perhaps expressed in a series of progressively more vigorous disputes over a period of time), and it becomes second degree murder. If Mr. X is stupid enough to leave a trail of evidence showing that he planned to kill Mr. Y, or was lying in wait to shoot Mr. Y, Mr. X may be convicted of first degree murder. In each case, statements that Mr. X has made in advance could be used to raise the charge.

There are concerns that the failure to define "sexual orientation" means that not only homosexuality, but pedophilia would be a protected class. The example that I heard on the radio on my way back from Bend this morning is a woman who slaps a creep who taking an unhealthy interest in her child. If she calls him a pervert while doing so, she could find herself at risk of federal prosecution. Far-fetched? A little, but the one thing that I've learned is that if a law can be abused, it will, at some point, be abused. And pedophiles are the next victim group for liberal lawyers to find are being abused by our "discriminatory" laws.

A bit more plausible of a concern is the danger of double jeopardy, in which a person who was found innocent of a state hate crime charge was then prosecuted by the federal government. Yeah, yeah, liberals are full of excuses for why this is a good thing (at least, for civil rights violations), but I actually take the double jeopardy provision seriously. At least when federal civil rights charges are filed (as in the Rodney King case), there is at least a claim that the federal civil rights violation is a different crime than the state law under which the police officers were prosecuted and found innocent. This doesn't seem to be the case with a federal hate crime law.

Freddoso's concern about:

hate crimes laws effectively place society's valuation of some victims' lives and well-being above that of others

is I think a rather strong one. Yes, in theory, if homosexuals beat up a straight person for being straight, they could be prosecuted under the federal law. But I'm a bit skeptical that federal prosecutors would actually do that. Wouldn't it make more sense just to make violent attacks on others (regardless of whether bias drove the attack) into a serious crime? I think one of the reasons that homosexuals have pushed for these hate crime laws is that in places like California, violent crime has historically not been seriously punished, and the rage about gay-bashing has obscured the fact that if a straight guy used a baseball bat on another straight guy, it wouldn't be treated very seriously.

Probably the biggest problem with this proposed laws, however, is the one area where I am most disappointed by Walt Minnick's vote for it: federalism. At the Town Hall Meeting about the Second Amendment a couple of weeks ago, someone asked Minnick his feelings about laws that effectively create "victims only" zones, by making it unlawful for concealed weapon permit holders to carry on campus, or in malls, etc. Minnick's response was that he believed that the federal government should leave such questions to local control, and specifically used the word "federalism."

But by that reasoning, this federal hate crimes should have been rejected. Criminal law, unless it involves crossing state lines, is left to the states. The Matthew Shepard bill has one of those imaginative excuses for why this is a federal concern:

(B) CIRCUMSTANCES DESCRIBED- For purposes of subparagraph (A), the circumstances described in this subparagraph are that--

`(i) the conduct described in subparagraph (A) occurs during the course of, or as the result of, the travel of the defendant or the victim--

`(I) across a State line or national border; or

`(II) using a channel, facility, or instrumentality of interstate or foreign commerce;

`(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct described in subparagraph (A);

`(iii) in connection with the conduct described in subparagraph (A), the defendant employs a firearm, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or

`(iv) the conduct described in subparagraph (A)--

`(I) interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or

`(II) otherwise affects interstate or foreign commerce.

This is an extraordinarily broad definition. The phrase "occurs during the course of" is pretty clear; this means that one or the other crossed a state or international boundary during the course of the crime. This is a legitimate exercise of federal jurisdiction. But "or as the result of, the travel of the defendant or the victim": what does that mean? If the defendant drove from Oregon to California to do some gay-bashing, that's clear enough. But what if the defendant drove to San Francisco on Monday, and Friday night, got drunk, and attacked someone? What if he drove there six months earlier? Is that "as the result of"?

Similarly, if a victim goes to Portland for the weekend, and gets attacked, is that "as the result of" his travel? What if the victim drives to Portland on January 1, and gets attacked on January 31? Is that "as the result of" his travel?

Similarly, the magic phrase "the defendant employs a firearm, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce." Does that mean that Congress could federalize every robbery where "the defendant employs a firearm, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce"? Obviously not. But homosexuals are so special that they deserve special treatment, apparently.

And what economic activity doesn't, at some level, "otherwise affect[] interstate or foreign commerce"? Even a kid's lemonade stand probably fails the intrastate test (unless they are using lemons from the backyard).