My Hate-Crimes Op-Ed in the RTD

Tuesday morning's readers of the Richmond Times-Dispatch will turn to the op-ed page, as they normally do before checking out sports or comics, and see a piece I wrote on the new federal hate-crimes law, which has been passed as part of the massive (1,158 pages) Defense Authorization bill and will soon be signed into law by President Barack Obama.

The law is named for Matthew Shepard, the gay Wyoming college student who died eleven years ago at the hands of violent criminals. His killers were sentenced to life in prison. They could have received the death penalty, but Shepard's family requested the more lenient punishment.

The crux of my argument in the Times-Dispatch is here:

What is particularly disturbing about the Matthew Shepard Act, however, is that this bill federalizes crimes that properly belong under state or local jurisdiction. It signifies creeping encroachment of federal law on state prerogatives and the dulling of the distinction between the central government in Washington and the various state governments.

Previous federal hate-crime statutes were written when state and local authorities often looked the other way if crimes of violence were committed against members of minority groups. These laws were narrowly focused and meant specifically to prosecute crimes against victims engaged in a federally protected civil-rights activity (such as helping to register African-Americans to vote).

The current bill says the federal government can step in to prosecute a case if "the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence." In other words, if a U.S. attorney dislikes an acquittal or the punishment of someone convicted under state law, he can re-open the case as a federal matter.

By Orwellian logic, this kind of re-prosecution does not violate the Constitution's prohibition on double jeopardy, because the same act becomes two separate crimes -- one state and one federal.

The days when crimes against victims from socially-disliked minority groups were routinely ignored by state and local law-enforcement authorities are in the past. Yes, there may still be exceptions to this welcome trend, and prosecutors who fail to do their jobs properly should be sent packing by the voters. In the majority of cases, however -- including the headline-grabbing murders of James Byrd and Matthew Shepard in the 1990s -- police and prosecutors pursue the perpetrators to the full extent the law allows.

The Matthew Shepard Act is a done deal as far as Congress and the President are concerned. That does not mean we should tolerate it or the further perforation of the lines between federal and state government that is, sadly, sure to follow it.

Update, October 21: The Richmond Times-Dispatch op-ed now also appears on the Independent Gay Forum.

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