Posted by Jonathan Adler:
Hate Crimes and Double Jeopardy:
http://volokh.com/archives/archive_2009_08_02-2009_08_08.shtml#1249664683
The Cato Institute's [1]David Rittgers explains one of the more
disturbing aspects of the new federal "hate crimes" law passed by
Congress.
States and the federal government are considered separate
sovereigns. If someone has broken both state and federal laws, he
can have a day in court in both systems. . . . A trial by a state
does not rule out federal prosecution for the same crime, and this
does threaten to thwart the Fifth Amendment�s demand that no person
suffer double jeopardy. In practice, however, this hasn�t happened
too often; until now, limited federal jurisdiction meant that Uncle
Sam usually didn�t have the ability to try or retry a state
defendant.
That�s what makes the new hate-crime law so remarkable. Its
defining feature is not that it allows federal prosecution of
crimes motivated by the race, gender, sexual orientation, or
disability of the victim. What�s significant is that it greatly
expands the federal government�s jurisdiction to prosecute cases
that properly belong in a state court.
In legal terms, this law achieves its aims through federal
authority over interstate commerce. If someone assaults you by
throwing a cell phone at you, what Congress has done is enabled the
prosecution of the thrower as a function of the fact that the cell
phone was made in Japan, and therefore must have crossed state
lines. To non-lawyers, that surely sounds absurd � which is
precisely why this law�s drastic overreach is so stark. This is a
sea change in the power of the government to reach into a state and
define violence between two people as a federal matter, one
traditionally handled by state laws and state prosecutors.
An equally striking feature of the law is that the federal power to
prosecute is not dissipated even if the defendant is found guilty
by the state. It explicitly says, in fact, that federal charges
should be pursued if the state verdict �left demonstratively
unvindicated the Federal interest in eradicating bias-motivated
violence.�
Thus, the bill simultaneously expands federal jurisdiction to cover
yet more criminal offenses traditionally handled at the state and
local level and encourages reprosecution if a state verdict is
insufficiently harsh to satisfy federal prosecutors.
References
1.
http://article.nationalreview.com/?q=NjkzNGQ2YzBiN2ZjMjkxOTM4MTUyMDhhN2RhYjA2OTQ=
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
