By Jacob Sullum
In April the House voted overwhelmingly to dramatically expand the "hate crimes" covered by federal law. Last week, for obscure legislative reasons I will not pretend to understand, it did it again. The House, which approved similar legislation four other times in previous sessions without getting the Senate to go along, has now approved the bill as part of a conference report on the 2010 National Defense Authorization Act, which the Senate has not passed yet but is expected to approve soon. I must have missed something, because in April the bill was referred to the Senate, where I thought it was expected to pass on its own.
The main change I've detected so far is that the bill is now officially called the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, whereas before it was officially called the Local Law Enforcement Hate Crimes Prevention Act but also known as the Matthew Shepard Act.
Matthew Shepard, a gay man who was beaten to death in Wyoming, and James Byrd, a black man who was dragged to death behind a pickup truck in Texas, were both murdered in 1998. In both cases, their killers seem to have been motivated by bigotry. What else do they have in common?
Their murderers were arrested, tried, convicted, and sentenced to life in prison or death, all without the benefit of hate crime laws, state or federal. Hence it is very strange to slap their names on a piece of legislation that is based on the premise that such crimes might go unpunished without a federal law aimed at violent criminals motivated by bigotry. "The hate crimes act," said Senate Armed Services Committee Chairman Carl Levin (D-Mich.), "will hopefully deter people from being targeted for violent attacks because of the color of their skin or their religion, their disability, their gender or their sexual orientation, regardless of where the crime takes place."
Deter people from being targeted? Talk about blaming the victim. What Levin presumably meant is no less ridiculous. Is it at all plausible that the men who murdered Matthew Shepard or James Byrd would have been deterred by the prospect of federal, as opposed to state, prosecution? How many lives can you serve in prison? How many times can you be executed?
Of the categories Levin mentioned, disability, gender, and sexual orientation are new. So is gender identity, which he left out. Just as important as the new categories is the law's ridiculously elastic justification for federal involvement, which greatly expands the crimes that could be taken up by the Justice Department when it doesn't like the verdicts reached (or sentences imposed) by state courts.
State hate crime laws are bad enough, since they enhance penalties for crimes motivated by bigotry, thereby punishing people for their beliefs. A federal law likewise threatens freedom of conscience, freedom of speech, and freedom of association (though House Speaker Nancy Pelosi claims that in the latest version of the bill "protections for freedom of speech and association" are "stronger").
It also authorizes double prosecutions for the same crime and usurps powers that the Constitution reserves to the states, as I noted the last time the bill was on the verge of passage.
More on hate crime laws here.