- The Washington Times - Friday, May 15, 2009

ANALYSIS/OPINION:

The Senate is considering the Hate Crimes Prevention Act, which passed the House of Representatives on April 29. This bill tramples on the spirit of the constitutional protection against being tried twice for the same crime.

Supporters of expansive federal hate-crimes laws, including Attorney General Eric H. Holder Jr. and former Attorney General Janet Reno, openly boast that such laws will give federal prosecutors a second bite at the apple if state prosecutions “fail.” As Miss. Reno explained when pushing the same provisions in 1998, this would “give people the opportunity to have a forum in which justice can be done if it is not done in the state court.”

The Constitution’s Fifth Amendment bans legal double jeopardy for a very good reason: to prevent an all-powerful state from putting disfavored people at risk of endless persecution. The current legislation would make it a federal crime to try to cause bodily injury because of the victim’s “actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity or disability.” But that’s not what this is really about.

As gay activist Andrew Sullivan explained Wednesday on his blog: “The real reason for hate crime laws is not the defense of human beings from crime. There are already laws against that …. The real reason for the invention of hate crimes was a hard-left critique of conventional liberal justice and the emergence of special interest groups which need boutique legislation to raise funds for their large staffs and luxurious buildings.”

Longtime American Civil Liberties Union board member and feminist author Wendy Kaminer wrote in 2007 that a federal hate-crimes statute is an “assault on civil liberties” and that “the continuing expansion of federal criminal jurisdiction has given federal law-enforcement officials unprecedented power over each of us.” The Supreme Court, in a series of narrow decisions, has established a “dual sovereignty” loophole that allows trials at both the state and federal levels for the same basic action. The idea set forth in U.S. v. Lanza in 1922 is that because two separate laws - one federal and one state - reportedly were violated, the defendant may have “committed two different offenses by the same act.”



Gail Heriot, a member of the U.S. Commission on Civil Rights, wrote about the dangers in the February issue of the Federalist Society’s Engage journal. With the use of the loophole to retry defendants already cleared by a jury, she said, “the potential for abuse should be of concern to all Americans.” It certainly concerns us. The hate-crimes bill opens the door to prosecutorial harassment. The role of the Senate is to take a longer view and calm the wilder tempers of the House. Senators should pause and reflect on the real motivation of this bill and its negative impact on civil liberties.

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