- The Washington Times - Tuesday, September 19, 2000

A federal hate crimes law would be constructive, but only if confined to violence inspired by racial bigotry. Such despicable acts historically have sparked widespread community convulsions, frequently necessitating use of the National Guard.

In contrast, the hate crimes bill pending in a House-Senate Conference Committee (the Local Law Enforcement Act of 2000) is too indiscriminate; it even reaches against the disabled, which have never in the past nor are likely in the future to cause national turmoil. The pending legislation should be opposed because it employs a federal sledgehammer to treat a narrow hate crime disease.

Not all crimes of violence equally threaten society. In the United States, our long and ugly history of slavery and Jim Crow make crimes motivated by racial hatred especially worrisome, as experience teaches. Remember, for instance, the race riots in the 1960s in Watts, Detroit, D.C., and other major urban areas sparked by police racism and the assassination of the Rev. Martin Luther King. The National Guard was dispatched to restore law and order. In more recent years, community strife and animosities in Los Angeles and New York were precipitated by the Rodney King beating and a racially motivated cycle of violence between blacks and Jews in New York City.

The federal government thus legitimately worries over crimes of racial bigotry; they have been inflammatory of national race relations unless strictly punished. That concern is akin to the federal interest in protecting the president and other high level federal officials from murder or mayhem. Their deaths or injuries endanger national harmony and the democratic process, as illustrated by the assassination of President Abraham Lincoln and the assault on abolitionist Sen. Charles Sumner of Massachusetts by Rep. Preston "Bully" Brooks of South Carolina. But generally speaking, crimes of violence no matter how immoral or how painful to the victims and relatives do not menace our national glue.

Every state jurisdiction prohibits violence against the person irrespective of the culprit's motive. A federal prosecution of racist violence is justified only if the state investigation or prosecution has been compromised by official prejudice or racist jurors. A federal law should thus stay its hand for at least one year to permit a state prosecution. If a state conviction and tough punishments are forthcoming as in the recent Texas trials of James Byrd Jr.'s murderers then a carbon copy federal prosecution should be barred. (The Sixth Amendment double jeopardy protection does not foreclose complementary federal and state trials for the same misconduct). If the state declines to prosecute or its punishment is suspiciously lenient, then a the federal hate crimes trial should be permitted, but only if the U.S. attorney general proves to the federal district judge that the state laxness was tainted by intentional racial discrimination.

A federal hate crime statute should sunset in five years, unless affirmatively extended by Congress. If race relations substantially improve, a virtually universal hope, the statute may become superfluous.

The pending federal hate crimes bill, an amendment to the Defense Authorization Act under active review by a House-Senate Conference Committee, too cavalierly intrudes on local law enforcement. It federalizes local crimes spawned by the victim's gender, disability or sexual orientation. Such reprehensible misconduct has never created a national problem. The invidiously motivated crimes have been relatively infrequent, and local law enforcement has proven generally uncompromised. Ask yourself: Is misogynic violence widespread in the United States? How much crime is caused because of a victim's disability? Weren't the dastardly slayers of young Matthew Shepard sternly punished under Wyoming law for their homophobia? Where are the counterparts of urban rioting ignited by local racist justice in the annals of crimes against women, the disabled or homosexuals?

To be sure, the latter are serious, not trivial matters. But ditto for crimes triggered by a victim's political ideology or party affiliation or labor union status. It is our good fortune that none of this wickedness has engendered a toxic level of national poison as have race-motivated crimes. Thus, federal interventions pivoting on the gender, disability or homosexuality of the victim in addition to state criminal prohibitions would be unwarranted. With no offsetting national benefit, they threaten the evils of double prosecutions as elaborated by Supreme Court Justice Hugo Black in Green vs. United States (1957): "[T]he state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."

Local law enforcement is a cherished tradition. It trains citizens in the art of self-government; it tailors criminal law priorities and punishments to the community most directly affected by the lawlessness. The tradition should be set aside only for great national causes, a standard which the pending federal hate crimes bill fails to satisfy.

Bruce Fein is a lawyer and free-lance writer specializing in legal issues. is a lawyer and free-lance writer specializing in legal issues.

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