Every decent person abhors violent crimes that are motivated by
prejudice or bias. Thus, the case for congressional legislation
that would expand federal authority that already prohibits some
"hate crimes" may seem compelling. But the Local Law
Enforcement Hate Crimes Prevention Act of 2009 (H.R. 1913, HCPA) is
based on serious analytical and constitutional flaws and would
actually be counterproductive to prosecuting violent crime.
The HCPA builds off of a powerful truth: Racially motivated
violence is especially repugnant. The Fourteenth Amendment was
enacted to ensure that no state would deny the equal protection of
its laws. Yet there is no serious argument that any particular
state does not enforce its civil and criminal laws against violence
in an even-handed manner today. Indeed, 45 of the 50 states have
enacted "hate crimes" statutes that increase the punishment for
crimes of violence and intimidation that are motivated by bias.
A broad federal "hate crimes" law, however, raises unique
concerns. In addition to going well beyond punishing crimes
motivated by hatred, the HCPA would federalize violent,
non-economic conduct that is truly local in nature and have little
or no federal nexus. However politically expedient "hate crimes"
legislation might seem, Congress simply lacks the constitutional
power to enact HCPA's sweeping criminal offenses, and doing so
would likely undermine state enforcement efforts--unless and until
the statute is struck down.
A Sweeping Scope
The two new "hate crimes" offenses that HCPA creates cover
violent conduct that should be punished criminally--as indeed it is
under the laws of every state. In addition to general state
criminal laws, 45 states have criminal statutes that impose harsher
penalties for crimes that are motivated by bias. Forty-four of these
states impose stiffer penalties for violent conduct related to
race, religion, or ethnicity, and 31 states do so for
violent conduct related to sexual orientation. What are the
benefits and problems resulting from such motive-based statutes
remains an open question, but the overwhelming trend in the states
has been to increase them in number and scope.
HCPA sweeps far more broadly than many state "hate crimes"
statutes because neither of the two offenses in HCPA would actually
require the government to prove that the accused was motivated by
bias, prejudice, or hatred. Subsection 249(a)(1) merely states that
the act must be "because of the actual or perceived race,
color, religion, or national origin of any person," and
subsection 249(a)(2) similarly states that the act must be
"because of the actual or perceived religion, national
origin, gender, sexual orientation, gender identity, or disability
of any person." ."
This amorphous standard would federalize almost all incidents of
violent crime, even those that have nothing to do with bias,
prejudice, or animus toward the victim because of his or her
membership in a particular group. Virtually every sexual
assault, for example, is committed "because of" the gender of the
victim, the gender of the perpetrator, and the perpetrator's gender
preferences. Many criminals target women or those with real or
perceived disabilities, believing that such victims may offer less
resistance. It is even possible that a defendant could be deemed a
"hate crimes" offender if he engaged in the violent conduct
"because of" his own religion, gender, or national origin in
some way. Thus an enormous proportion of local violent crime would
become federal "hate crimes."
An Unconstitutional Approach
Even more so than for run-of-the-mill federal "hate crimes"
legislation, HCPA's sweeping scope raises serious constitutional
concerns. Congress is a body of limited, enumerated powers. Unless
the Constitution has granted Congress the power to legislate in an
area, it cannot do so. Because the Constitution grants the federal
government no general police power, Congress lacks the power to
criminalize the vast majority of the violent, non-economic activity
covered by the two principal criminal offenses in the HCPA.
The constitutional bases offered by HCPA's sponsors are
unconvincing. Subsection 249(a)(2) purports to rely on Congress's
Commerce Clause power--i.e., the power to "regulate commerce with
foreign nations and among the several states." But the offense
would apply to anyone who, "willfully causes bodily injury to any
person or, through the use of fire, a firearm, or an explosive or
incendiary device, attempts to cause bodily injury to any person."
This describes quintessentially violent, non-economic activity that
has nothing to do with interstate commerce.
To be sure, all conduct has some indirect or attenuated
connection to interstate commerce, but such distant links are
insufficient to bring conduct within Congress's commerce power. The
Supreme Court has held that violent conduct that does not target
economic activity is among the types of crime that have the least
connection to Congress's commerce power. Yet it is precisely this sort
of violent, non-economic conduct that HCPA would federalize.
In an attempt to insulate this overreaching from constitutional
challenge, the 249(a)(2) offense includes a list of factors, at
least one of which must be satisfied. Although each of these
factors requires the violent conduct, the perpetrator, or the
victim to have something to do with commerce or interstate
travel, the final factor, which permits a conviction if the
activity merely "affects interstate commerce" in any attenuated
manner, eviscerates any limitation. Though some activities that
would be covered by the offense could indeed involve interstate
commerce in a non-trivial manner, this does not distinguish the
provision from those the Supreme Court struck down in United
States v. Lopez (1995) and United States v. Morrison
(2000). If this approach were permissible, Congress could claim to
rely on the Commerce Clause and legislate any criminal law it
wants. When it comes to criminal law, Congress
would no longer be a body of limited, enumerated powers but would
have plenary power to criminalize any and all conduct that is
already criminalized by the states.
HCPA's second criminal offense does not specify on which
enumerated constitutional power the bills' sponsors rely, but the
original "findings" section, as well as some supporters, suggest
reliance on the enforcement clauses of one or more of the Civil War
amendments. Of the three, the Fourteenth Amendment provides
Congress with the greatest power, but even it only prohibits
state action, not private conduct unrelated to state action.
While Congress clearly does have authority to punish state actors
for racially discriminatory conduct and pass other civil rights
statutes to ensure that states do not deny citizens the equal
protection of their laws, the Supreme Court held in Morrison
that the Fourteenth Amendment did not authorize a federal tort
action against private individuals, not acting under color of law,
who perpetrate violence against women.
The Thirteenth Amendment, which gives Congress the power to
eliminate "badges, incidents, and relics" of slavery and
involuntary servitude, is also unavailing. The Supreme Court has
written that Congress may legislate to remove such badges and
incidents of slavery but has never defined the purported scope
of that power. It is not serious, however, to equate all violence
that involves a member of an indentifiable group or a person with
certain identifiable characteristics with a badge or relic of
slavery. Further, by its very terms the HCPA would apply equally to
violence against a white victim if the crime occurred "because of"
his race. Whatever the Court might determine is the scope of the
power to remove the relics of slavery today (and this power was
much easier to conceptualize in 1883 when Congress could help
remove the incidents of slavery from actual freed slaves), it
cannot be so broad.
Finally, in a similarly unavailing attempt to insulate the bill
from constitutional attack, HCPA would require the Justice
Department to "certify" that contemplated prosecutions under its
"hate crimes" offenses meet certain conditions, such as that the
state in which the conduct occurred does not object to the federal
usurpation of state authority and jurisdiction. But the
unconstitutionality of a statute cannot be "cured" by a ministerial
certification or by state acquiescence to an improper assertion of
federal authority. Most states joined briefs supporting the
purported need for the provision in the Violence Against Women Act
that the Supreme Court properly struck down. The limits on
Congress's powers were designed to protect the individual rights of
national citizens, not the states qua states. In short, a
state can no more acquiesce to and thereby cure a violation of
constitutional federalism than the federal courts can acquiesce to
and thereby cure a President's violation of the constitutional
separation of powers.
Undermining State Enforcement
Violent crime is always a serious problem, but bad federal
criminal laws such as those in the HCPA detract from effective law
enforcement strategies. Congress must tread very carefully when
bringing federal criminal law to bear on any problem at the state
and local level. Federal criminal law should be used to combat only
those problems reserved to the national government in the
Constitution. These include offenses against the federal government
or its interests, responsibilities the Constitution expressly
assigns to the federal government (such as counterfeiting), and
commercial crimes with a substantial multi-state or international
Federalizing yet another category of truly local conduct is
almost certain to accelerate the ongoing erosion of state and local
law enforcement's primary role in combating common street crime.
Doing so invites serious unintended consequences, including the
dilution of accountability among federal, state, and local law
enforcement agencies. The best way to combat violent crime
(regardless of to which group or groups its perpetrators and
victims belong) is to adhere to federalist principles that respect
the proper allocation of responsibilities among national, state,
and local governments.
Punishing Violent Conduct
The fact that the federal Constitution does not authorize
Congress to address particular conduct does not mean that such
conduct must be left unpunished. In the case of "hate crimes," the
underlying violent conduct is punishable as a crime in every state,
regardless of the motivation of the perpetrator or identity of the
victim. Further, almost every state has adopted criminal offenses
that increase the penalty for certain violent crimes deemed to be
"hate crimes." Whether or not such enhancements are needed, they do
not exceed the states' authority under the Constitution to
criminalize violent, non-economic activity that is truly local in
nature. And they do not undermine the ultimate responsibility and
accountability of state and local officials to investigate and
prosecute such crime.
Walsh is Senior Legal Research Fellow in the Center for
Legal and Judicial Studies at The Heritage Foundation.
See, e.g., 18 U.S.C. § 245(b).
Ibid. According to the ADL, Utah is one
of the 45 states that have "hate crimes" statutes, but its statute
"ties penalties for hate crimes to violations of the victim's
constitutional or civil rights."
approach is deliberate. See Jordan Blair Woods, "Taking the
'Hate' out of Hate Crimes: Applying Unfair Advantage Theory to
Justify the Enhanced Punishment of Opportunistic Bias Crimes," 56
UCLA L. Rev. 489 (2008);New York v. Fox, 844 N.Y.S. 2d 627, 634-35,
640 (N.Y. Sup. Ct. 2007) (upholding, despite the absence of any
allegation that the defendants were motivated by bias, prejudice,
or hatred, the validity and constitutionality of a prosecution
under a state "hate crimes" statute).
as introduced included "findings" purporting to link the conduct
being criminalized to interstate commerce. But as the Court
explained in Morrison, "the existence of congressional
findings is not sufficient, by itself, to sustain the
constitutionality of Commerce Clause legislation. As we stated in
Lopez, '[S]imply because Congress may conclude that a
particular activity substantially affects interstate commerce does
not necessarily make it so.'" United States v. Morrison, 529
U.S. 598, 614 (2000) (internal quotation marks omitted).
See United States v. Lopez, 514 U.S.
549, 564-66 (1995) (rejecting the government's claim that its
"costs of crime" and "national productivity" rationales, which
relied on attenuated economic effects of school gun violence, made
the Gun-Free School Zones Act of 1990 a proper exercise of
Congress's commerce power); Gonzales v. Raich, 545 U.S. 1, 25
(2005) (reaffirming that, in Lopez, the fundamentally
"noneconomic, criminal nature of the conduct at issue was central
to our decision" (internal quotation marks omitted)).
Lopez, 514 U.S. at 567-58 (explaining
that a holding that attenuated economic effects could serve as a
basis for Congress to exercise commerce power "would require us to
conclude that the Constitution's enumeration of powers does not
presuppose something not enumerated...and that there never will be
a distinction between what is truly national and what is truly
local" (internal citation omitted)).
Morrison, 529 U.S. at 626; ibid.,
at 620-21 ("[T]he Fourteenth Amendment, by its very terms,
prohibits only state action.").
Civil Rights Cases, 109 U.S. 3 (1883). See
also Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440 (1968)
(involving the removal of barriers to own property).