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Hate Crimes and Double Jeopardy:

The Cato Institute's David Rittgers explains one of the more disturbing aspects of the new federal "hate crimes" law passed by Congress.

States and the federal government are considered separate sovereigns. If someone has broken both state and federal laws, he can have a day in court in both systems. . . . A trial by a state does not rule out federal prosecution for the same crime, and this does threaten to thwart the Fifth Amendment's demand that no person suffer double jeopardy. In practice, however, this hasn't happened too often; until now, limited federal jurisdiction meant that Uncle Sam usually didn't have the ability to try or retry a state defendant.

That's what makes the new hate-crime law so remarkable. Its defining feature is not that it allows federal prosecution of crimes motivated by the race, gender, sexual orientation, or disability of the victim. What's significant is that it greatly expands the federal government's jurisdiction to prosecute cases that properly belong in a state court.

In legal terms, this law achieves its aims through federal authority over interstate commerce. If someone assaults you by throwing a cell phone at you, what Congress has done is enabled the prosecution of the thrower as a function of the fact that the cell phone was made in Japan, and therefore must have crossed state lines. To non-lawyers, that surely sounds absurd — which is precisely why this law's drastic overreach is so stark. This is a sea change in the power of the government to reach into a state and define violence between two people as a federal matter, one traditionally handled by state laws and state prosecutors.

An equally striking feature of the law is that the federal power to prosecute is not dissipated even if the defendant is found guilty by the state. It explicitly says, in fact, that federal charges should be pursued if the state verdict "left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence."

Thus, the bill simultaneously expands federal jurisdiction to cover yet more criminal offenses traditionally handled at the state and local level and encourages reprosecution if a state verdict is insufficiently harsh to satisfy federal prosecutors.

yankev (mail):
Isn't this equally true of prosecutions for civil rights violations? E.g., when the police officers who arrested Rodney King were aquitted of state charges, they were retried and convicted in federal court for violating his civil rights under federal law. The same thing happened when the thugs who killed Yankel Rosenblum H"yd during the Crown Heights pogrom were acquitted of murder in NY state court.

In each case, the predicate acts were the same, but the elements of the the federal crime differred from those of the state crime.

Or have I answered my own question? Under the federal hate crimes law, the elements are the same as the crime under state law, with the one additional element of animus.
8.7.2009 1:15pm
EH (mail):
Jeez, I'm no lawyer and am about as lefty as left gets when it comes to social issues and quite disciplinarian when it comes to interpersonal violence, but this commerce clause b.s. totally bugs me. Perhaps I have a blind spot.
8.7.2009 1:16pm
ruuffles (mail) (www):
Have no fear! S.T.A.R. to the rescue!
8.7.2009 1:19pm
ShelbyC:

Or have I answered my own question? Under the federal hate crimes law, the elements are the same as the crime under state law, with the one additional element of animus.


Don't matter. The elements can be exactly the same. The state and the feds each get a swing.
8.7.2009 1:23pm
whit:
yankev, i have made that point several times. iow, you are wicked smaht
8.7.2009 1:31pm
PatHMV (mail) (www):
yankev... yes, the legal reasoning for determining that the double jeopardy provision of the constitution does not prohibit prosecution by both the state and the federal government for exactly the same actions. They don't have to have mutually exclusive elements in order to avoid double jeopardy; each is its own sovereign, and double jeopardy gives each separate sovereign one bite at the apple.

But there is a significant difference between the two. Violence against black Americans was extensive enough, in the decades leading up to the Civil Rights Act of 1964 (and its predecessor in the 50s) that the violence itself was having a material impact on the constitutionally protected right of black Americans to travel in interstate commerce. State action which, as a functional matter, deprived black Americans of the equal protection of the law to be free from murder and physical assault demonstrated a legitimate need for federal action.

Today, there's no indication that any state refuses as a matter of course to seriously prosecute crimes, particularly physical assaults, merely because they are animated by bias by the criminal against someone's race, religion, gender, or sexual orientation. Any such violence is not so widespread as to have any real impact on interstate travel. The law is unnecessary, and its only purpose is political.
8.7.2009 1:35pm
jpe (mail):
Note also that the current bill completely eliminates any sort of interstate commerce element for crimes based on religion, race, and national origin.
8.7.2009 1:35pm
Cato The Elder (mail) (www):
Has this been passed already? I was under the impression that it had only passed the House, which passes anything that's remotely legible.
8.7.2009 1:44pm
Prosecutorial Indiscretion:
An equally striking feature of the law is that the federal power to prosecute is not dissipated even if the defendant is found guilty by the state. It explicitly says, in fact, that federal charges should be pursued if the state verdict "left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence."

This is simply codification of the existed Petite Policy - while the broader jurisdiction is ripe for debate, successive prosecutions to vindicate the federal interest are nothing new.
8.7.2009 1:45pm
A.C.:
The whole thing is completely absurd and offensive, and I say that as someone who is strongly supportive of gay rights. Trouble is, I'm also strongly supportive of federalism.

The answer, of course, is state-level bias crimes legislation.
8.7.2009 1:46pm
PatHMV (mail) (www):
Prosecutorial Indiscretion... That demonstrates again why it is an irrelevant and useless bill.
8.7.2009 1:47pm
Seamus (mail):
I thought the whole point of the legislation was an end run against the prohibition of double jeopardy.
8.7.2009 1:51pm
Bob Goodman (mail) (www):
AFAICT, hate crimes deserve less punishment than non-hate ones, because they target only a minority, hence are less of a threat to the community at large than those crimes that can be committed against everybody.
8.7.2009 1:59pm
shocking:
Because "interstate commerce" provides the jurisdictional hook for most federal offenses, it's disingenuous to describe this particular bill as "absurd" and a "drastic overreach" on this basis.

As for the dual sovereignty issue, again, that's a longstanding doctrine that has been applied for years to allow a wide range of federal prosecutions -- interestingly, without much complaint from conservative judges and law professors.

The hate crimes bill at issue is actually unique in that, unlike other federal criminal provisions, it attempts to impose criteria limiting the circumstances in which a federal prosecution may be brought. You may disagree with the criteria set forth in the bill, but it is wildly misleading to suggest that the bill breaks new ground in allowing dual-sovereign prosecutions.
8.7.2009 1:59pm
einhverfr (mail) (www):
Yankev, not quite:

Part of the issue with criminal and civil lawsuits is that they are not really comparable. Being found "not guilty" in a criminal prosecution says absolutely nothing about whether the individual is "liable" under a tort claim. These are separate questions of law based on very different applications of facts.

A.C.:

The answer, of course, is state-level bias crimes legislation.


I disagree. Bias-crime legislation is dangerously similar to thought crime legislation. It is better to criminalize the practical elements rather than the motivation. This is different than premeditated murder penalties, because premeditation is a practical element. Bias crime legislation though is inherently unequal in the level of protection it extends to people.

The answer instead is "crime with intent to intimidate" legislation, so that if someone spray paints "die, fags!" on the door of a college dorm, one can arrest that person and charge them, REGARDLESS of what group was targetted. I.e. IMO, the core shouldn't be whether the crime was motivated by bias, but rather

1) Whether there was a crime against persons or property and
2) Whether the crime was intended to intimidate a discrete group of people.

In short, if a property crime is intended to intimidate blacks, gays, Jews, or teachers at a specific high school shouldn't matter. The issue is that using crime to intimidate folks undermines our rule of law and should be subject to sentencing enhancements.
8.7.2009 2:00pm
PatHMV (mail) (www):
Seamus... no. The feds could already prosecute, say, a guy who murders a black man because he is black, for depriving the victim of his civil right to life. As long as there is some federal crime which was broken at the same time by the defendant, he can legally be prosecuted by both the state and the federal government. -- Incidentally, it works the same way for states. If you kidnap me in Louisiana, then drive me through Mississippi to Arkansas, you've committed the crime of kidnapping in each of those states, and each one of them could prosecute you, as could the federal government, and no double jeopardy would occur, even if they each waited to take turns to prosecute you to see whether you were convicted or not.

As Prosecutorial Indiscretion notes, the Justice Department currently follows its administrative policy known as the Petit Policy. It provides that, as a general rule, the Department of Justice will use its prosecutorial discretion to refrain from prosecuting crimes which are also being prosecuted by the state, unless in the DOJ's judgment the state prosecution and its end result will be insufficient to vindicate an important federal interest.

This statute just gives more crimes for the federal prosecutor to consider.

Under this law, if you beat up a straight guy in a bar for hitting on your girlfriend, then you'll only be prosecuted by the state, period. But if you beat up a gay guy in a bar for hitting on you, then you may well be prosecuted by both the state and the feds for a "hate crime."
8.7.2009 2:01pm
Stash:
The "separate sovereign" rule is pretty well established and I think it is probably constitutionally correct with respect to double jeopardy. The troubling aspect of federal crimes is the breadth of regulation allowed under the commerce clause, not the separate sovereign doctrine. Less clear, I think, is how the excessive fines and cruel and unusual punishment applies to the "double punishment." While the discretionary part of sentencing should take the state punishment into consideration, I believe that the "separate sovereign" doctrine also dictates that each sentence be separately evaluated and not aggregated for constitutional analysis as each sovereign has the independent right to punish within constitutional constraints.
8.7.2009 2:16pm
Larvell Blanks:
if you beat up a gay guy in a bar for hitting on you, then you may well be prosecuted by both the state and the feds for a "hate crime."

But if you're a Black Panther, you'll get a pass.
8.7.2009 2:18pm
ShelbyC:

If you kidnap me in Louisiana, then drive me through Mississippi to Arkansas, you've committed the crime of kidnapping in each of those states, and each one of them could prosecute you, as could the federal government, and no double jeopardy would occur, even if they each waited to take turns to prosecute you to see whether you were convicted or not.


Of course, Louisiana would have to prove you were detained in LA, etc. It almost counts as three seperate kidnappings.
8.7.2009 2:38pm
einhverfr (mail) (www):

Under this law, if you beat up a straight guy in a bar for hitting on your girlfriend, then you'll only be prosecuted by the state, period. But if you beat up a gay guy in a bar for hitting on you, then you may well be prosecuted by both the state and the feds for a "hate crime."


So... It seems to me that if you beat up a lesbian for hitting on your girlfriend or a gay guy for hitting on your boyfriend, having prior convictions against the opposite sex for similar behavior would be an affirmative defence against federal charges, no?
8.7.2009 2:45pm
Danny (mail):

But if you beat up a gay guy in a bar for hitting on you, then you may well be prosecuted by both the state and the feds for a "hate crime."


No. A hate crime has to be an act of terrorism aimed at a group of people, not at a single individual. The intent to intimidate the group has to be the motive, not an interpersonal motive.
8.7.2009 2:45pm
yankev (mail):

Being found "not guilty" in a criminal prosecution says absolutely nothing about whether the individual is "liable" under a tort claim.
As every first year law student knows. But who said anything about tort claims? The federal actions in the Simi Valley case and the Crown Heights case were both criminal prosecutions.
8.7.2009 2:54pm
William Spieler (mail) (www):

This is a sea change in the power of the government to reach into a state and define violence between two people as a federal matter, one traditionally handled by state laws and state prosecutors.


Of course, the 14th Amendment totally overturned that tradition, but we're still waiting on anyone to notice.
8.7.2009 2:58pm
M. Gross (mail):
Violence against black Americans was extensive enough, in the decades leading up to the Civil Rights Act of 1964 (and its predecessor in the 50s) that the violence itself was having a material impact on the constitutionally protected right of black Americans to travel in interstate commerce. State action which, as a functional matter, deprived black Americans of the equal protection of the law to be free from murder and physical assault demonstrated a legitimate need for federal action.

It was still a real stretch, back then. But really, after Wickard v. Filburn, there wasn't a whole lot you couldn't do with the Interstate Commerce clause.

I'd like to think we've stepped back from using the Commerce Clause to justify absolutely everything, since then.
8.7.2009 3:05pm
Jeff R.:
So is the cell phone argument in the main post the actual theory of the law? Hate crimes performed with bare hands only are non-interstate and thus exempt from this particular law, then?
8.7.2009 3:08pm
Danny (mail):
Publius has a good post called Hate Crimes Hatin' about these anxieties and distortions over hate crimes.

A brief quote:
In one sense, all crimes criminalize "thought." The American criminal justice system requires showing not merely an act, but an intent. If I fall down accidentally and kill you, I can't be prosecuted. Yes, I committed an act of homicide, but I didn't intend to do that act.

Hate crimes work the same way...We inferring a specific type of criminal intent from tangible evidence -- just like we must infer intent to murder from tangible evidence. There has to be something more than the act itself.
8.7.2009 3:17pm
PatHMV (mail) (www):
Danny, so very, very wrong. According to Senate Bill 1105, titled the "Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act of 2007":

(2) the term `hate crime' has the meaning given such term in section 280003(a) of the Violent Crime Control and Law Enforcement Act of 1994 (28 U.S.C. 994 note); and


When you click through the links to the underlying statute, which was a 1994 act directing the Sentencing Commission to enact harsher sentences for hate crimes, you find the definition:

SEC. 280003. DIRECTION TO UNITED STATES SENTENCING COMMISSION REGARDING SENTENCING ENHANCEMENTS FOR HATE CRIMES.

(a) DEFINITION- In this section, `hate crime' means a crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime, because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person.


No terrorism involved, no requirement that the offender be trying to send a message to a group. If the offender selected the victim because of the actual or perceived sexual orientation (in this example) of the victim, that's enough. Would a bar fight count? I certainly hope not. As a lawyer, could I give a client a reasonable assurance that no court would ever hold that hitting a guy for hitting on him could be a hate crime? Nope. I mean, we can likely establish that such an offender has never hit a woman who hit on him, so the only difference would be the gender (and sexual orientation) of the victim. But for the victim being gay, the offender wouldn't have hit him. Bingo, hate crime.
8.7.2009 3:20pm
PatHMV (mail) (www):
Danny, the "so very, very wrong" was aimed at your previous post, no the one immediately above mine, in which you said that an intent to terrorize, basically, was required. That's not so.

As for your last statement, it's partially correct, but there's a huge difference between the thought penalized in "hate" crimes and the mental state which gives rise to criminal penalties in other laws.

When we conclude that the defendant intended to murder the victim, because he pointed a loaded gun at him and then intentinoally pulled the trigger, well, that's a safe conclusion to make because no sane person could possibly believe that anything else would result from that action. There's nothing really subjective about that intent.

But motivation, which is very different from intent is on the other hand highly subjective. Yes, if the offender starts beating on a gay man with a baseball bat while screaming anti-gay insults and obscenities, a jury could potentially conclude that the offender was motivated by bias against homosexuals. But what if the offender was himself gay? It's hardly unheard of for minority groups to use slurs against other members of the same minority. Some black people call other black people by the n-word (in a derisive manner, not just as the equivalent of "hey, my brother"). When people snap to the point of violence, what they scream out may or may not actually reveal their motivation; when we call somebody a mother-f***er, or a c**k-sucker, we don't mean that literally; we're just screaming out any insult we can think of.

Likewise, violent attacks can also be made in silence. If a black teenager robs an elderly white man on the street, do we presume that he committed a hate crime because there was a difference in the races? Must the black man present affirmative evidence that he robbed black people, too? Must the government, to convict him of a "hate crime," affirmatively establish that the defendant never robbed any black people?

I hope that more tangible evidence is required than simply that the offender is not in the same race/gender/religion/sexual orientation/whatever as the victim. But I'm not sure it is, under this bill.
8.7.2009 3:32pm
traveler496:
"If someone assaults you by throwing a cell phone at you, what Congress has done is enabled the prosecution of the thrower as a function of the fact that the cell phone was made in Japan, and therefore must have crossed state lines. To non-lawyers, that surely sounds absurd..."

David Rittgers has certainly read this non-lawyer correctly.

So, here's a chance for you lawyers who see this as not absurd to educate the masses: How does it make sense that the thrower would be subject to additional prosecution based on the location of manufacture of the cell phone?

[Please note that I'm not asking "how does this comport with precedent" or any of a number of other questions that some of you might wish to answer. Rittgers seems to imply that lawyers might see the above scenario as other than absurd; I'm just following up by asking how.]
8.7.2009 3:36pm
Danny (mail):
Patty, with all due respect I think you are not getting the point of the law. This is my reading of it:


the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime, because of the actual or perceived race, color, religion,


If person A hits on person B in a bar and person B hits person A, it is not a hate crime, even if A and B have different races / sexual orientations, whatever. B is angry with A because of something that A did, there is an interpersonal motive. The victim was not selected because of his identity, the identity is incidental.

It would be the same if a straight man hit on a straight man in a bar (although that is even less likely).

Let's imagine that a raving anti-Semite kills a Jewish guy because he's furious that the Jewish guy scratched up his car. It's not a hate crime because there was a motive, the perpetrator's biased attitudes are incidental. He would presumably have behaved in the same way towards a Christian.

Conversely, if a straight guy is walking his dog through the gay ghetto and a group of thugs attacks him because they think he is gay, it is still a hate crimes aimed at politically threatening gay people with no other motive.
8.7.2009 3:37pm
PatHMV (mail) (www):
First of all, Danielle, I didn't insult your name, so please don't insult mine.

Notice that the law does not say "solely because of..." In my example, of all the people that hit on the guy in the bar, the only ones he selected to physically strike in return were the ones who were gay men. Thus, he selected them "because of" their sexual orientation and gender. The law recognizes that there can be many causes of a particular action or result. My example actually meets the test for "but for" causation. But for the victim being gay, the offender would not have hit him (if only because the victim would not then have hit on him).

There's not a single word in the statute about "politically threatening" or "no other motive." Adding such words would go a long way towards making me feel more comfortable with the bill. Let me know how far you get, asking the author to amend the bill to make those clarifications. Meanwhile, why don't you do a quick survey of your friends who support the law, and see whether they think the guy in my example has committed a hate crime. I bet that most of them will say "yes."
8.7.2009 3:49pm
PatHMV (mail) (www):
traveler... the bill lists 5 ways in which hate crime violence "affects" interstate commerce. #5 is:

(E) Such violence is committed using articles that have traveled in interstate commerce.


Now, 6(A) is legitimate, if not nearly as applicable today as the same reasoning was back in the 50s and 60s regarding racial violence. But 6(E)? It would allow the federal government to prosecute any crime it wanted, simply because the object used in the crime had traveled in interstate commerce. Ridiculous.
8.7.2009 3:53pm
David M. Nieporent (www):
Conversely, if a straight guy is walking his dog through the gay ghetto and a group of thugs attacks him because they think he is gay, it is still a hate crimes aimed at politically threatening gay people with no other motive.
No. It is a crime against that individual. "Politically threatening gay people" is not required. No "motive" relating to terrorizing other gay people is required, nor is the prosecution required to show that the crime had the effect of so doing. The mere fact that you selected a victim because of his race/sexual orientation/etc. is sufficient.

So, in other words, when you said, "The intent to intimidate the group has to be the motive, not an interpersonal motive," you were mistaken. You're correct that if I punch a gay guy for denting my car, that's not a hate crime. But if I first yell, "Why can't you [gay slurs] drive?" and then punch him, it can be prosecuted as such.
8.7.2009 4:04pm
TruePath (mail) (www):

(a) DEFINITION- In this section, `hate crime' means a crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime, because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person.


I find the word selects here very interesting. It doesn't say that the crime is motivated by the existence of people of a given color, religion, national origion, etc.. nor that any of these charachteristics trigger the crime. Merely that the victim is selected on account of one of these properties.

If I had to guess I would say that was intended to encompass situations where a bunch of good old boys get drunk off their ass and jump in their pickup truck looking to cause some trouble and then pick their victim because they're black. Indeed, given how hard it would be to prove the crime wasn't instigated by just a bad mood the only reasonable interpratation is that one must only choose your victim based on race, sex, gender, disability, etc.. to be guilty.

This has the interesting consequence that picking a fight in a bar is virtually guaranteed to be a hate crime if you won't hit women. After all if I go out looking to get into a brawl (not really caring with whom) but select only men to attack I just selected my victim based on gender.

----

Hell, if you want to get super picky the definition doesn't actually say it has to be the victim's orientation, gender etc... that causes me to select them. Suppose I'm really really angry about being gay and I blame my parents so I vandalize their house. I've selected the property that is the object of the crime because of the sexual orientation of a person (me). I could go on but it seems any kind of anger about being a member of one of these groups that motivates you to go out and attack someone for totally random reasons (they were the closest person when you realized you were born in Canada) would technically count.
8.7.2009 4:11pm
PersonFromPorlock:
PatHMV: Ah, but with law, "ridiculous" isn't disqualifying.
8.7.2009 4:15pm
ShelbyC:
So rape is pretty much automatically in. Burgularizing a deaf person's house because they can't hear you is a hate crime. How 'bout prostitution?
8.7.2009 4:24pm
Danny (mail):
@ PatHMV

Oops, I wrote your name wrong because I had only quickly glanced at it, sorry.

It may be that I have a narrow reading of the law. I guess we will find out if the language is left ambiguous.
If it is applied too broadly, for example to that stereotypical bar scenario, then it would be a misuse of the traditional, established hate crimes concept which is basically terrorism or ethnic (etc.) intimidation. It might be helpful if they actually called it that. It's the randomness of hate crimes that makes them intimidating for the group. If a gay guy walking his dog in my neighborhood is attacked by some thugs just for being gay then I might think "wow, maybe this neighborhood isn't very safe for gay people to work/live/study in". If I heard that a gay guy got punched for hitting on a straight guy in a straight bar, I would think "wow, what an dumbass, to go hit on a straight guy in a straight bar". In no way would I feel intimidated by it, even if I wanted to have a rum and coke at the same bar.

Another element that has been missing from the discussion is the public nature of hate crime. In my opinion, for a group to be intimidated they have to know about the crime. If person A kills person B in a private setting, even out of bias, and buries the body out in the woods so no one in the wider community even knew that the crime occurred, how can it be classified as a hate crime aimed to intimidate?
Again I am not sure how the law is really applied there.

How would the law normally treat a case of a disproportionate reaction to a provocation, as in the bar scenario (imagining if a man hit a woman)?
8.7.2009 4:27pm
PLR:
Good link, and a timely reminder that Cato can actually be useful when it's not out whoring for oligopolists.
8.7.2009 4:33pm
einhverfr (mail) (www):
Danny:

No. A hate crime has to be an act of terrorism aimed at a group of people, not at a single individual. The intent to intimidate the group has to be the motive, not an interpersonal motive.


But that isn't the way the law is written. I oppose most hate crime laws because they fail to live up to the just motivation you have articulated.

Would you support my idea of replacing hate crime legislation with something like "crime with intent to intimidate" or "crime with intent to terrorize" legislation?

I.e. right now, hate crime legislation consists of two prongs:
1) A crime must occur against person or property and
2) The victim must be selected due to some off-limits criteria.

I would suggest replacing this with the following two prongs:
1) A crime must occur against person or property and
2) The intent of the crime must include intimidating a discrete group of people.

The differences might be:

1) Someone starts robbing homes of Jewish folk because he thinks they have lots of money. Or maybe robbing gay folks homes because statistically gay couples are more affluent. A hate crime under current law, not a crime with intent to intimidate under my proposals, because the intent to intimidate isn't there.

2) Someone spray paints on a school wall "All teachers must die!" Not a hate crime because teachers aren't a protected class. However, under my proposal, it WOULD be subject to sentence enhancements.
8.7.2009 4:47pm
Danny (mail):

So, in other words, when you said, "The intent to intimidate the group has to be the motive, not an interpersonal motive," you were mistaken. You're correct that if I punch a gay guy for denting my car, that's not a hate crime. But if I first yell, "Why can't you [gay slurs] drive?" and then punch him, it can be prosecuted as such.


Well, if that is the case then maybe it was not explained to me accurately. I would not call that a hate crime (even speaking as a gay guy who is also a really bad driver), although it is a bias-related excessive reaction. I'm not a lawyer, I am just going by what I have always read.
8.7.2009 4:51pm
AJK:
Just to be clear, Danny, you're talking about the hate crime legislation you'd like to see passed, right? Because there's nothing about intimidation anywhere in the legislation.
8.7.2009 5:00pm
Danny (mail):
Yes, I am talking about the general concept of hate crimes as I see them (which have guided my assumptions about this specific law)
8.7.2009 5:05pm
einhverfr (mail) (www):
Danny:

Yes, I am talking about the general concept of hate crimes as I see them (which have guided my assumptions about this specific law)


Then you would support my proposals as a better alternative which would better live up to the ideals we share on this subject?
8.7.2009 5:34pm
ShelbyC:
Hold on. Why would robbing gays/jews because you think they're more affluent have a different effect in terms of intimidating a group than robbing them because you don't like them?
8.7.2009 5:54pm
PatHMV (mail) (www):
Danny, thanks for the apology; mistakes happen.

I'm curious now, though, from where you get your "general concept of hate crimes." There really aren't any "traditional, established" hate crime, I don't think. We have occassionally criminalized in the past things (like planting a burning cross on somebody's lawn) in part because of the terrorizing effect they will have on the victim, but they were never called "hate crimes."

"Hate crimes," as such, are a pretty new invention (specially classifying and prosecuting them as such, that is; people have been committing crimes out of hatred since we became homo sapiens, and probably before). I believe the term only came into use in the 1980s, and I'm pretty sure that most of the state definitions are along the same lines as the one I quoted.

I fear you are confusing the rationale underlying the law with the actual language of the laws themselves.
8.7.2009 5:54pm
traveler496:
As yet another pathological consequence of this apparently execrable definition, beware the con man who stutters irrecoverably on initial V's, stuck in a waiting room with potential dupes Silas and Victor.


Is it really credible that not one of the people in the creation/review loop of such a definition is simultaneously willing and able to think clearly about its, er, meaning?

No, it's not credible. So maybe there's a legal convention concerning how definitions such as this are to be circumscribed/overridden/whatever by the common English meaning (however vague by comparison) of the term ostensibly being defined?

Nah, that can't be it. So what gives? Is it process failure? Deliberate error (but why)? Somehow not an execrable definition for reasons that totally escape me?
8.7.2009 5:57pm
PatHMV (mail) (www):
I also think the phrase itself is so misused as to be almost Orwellian. The proper term would be "bias crimes," but that doesn't have a nice emotional ring to it, but it's far more accurate. "Bigotry crimes" would work better, perhaps, to convey our emotional disapproval.

But "hate" crimes? The man who shoots his wife's lover is motivated by hate. Just about any family murder or assault is done from some fucked-up combination of love and hate and lack of self control. Lots of robberies are committed out of a combination of envy and hatred. Heck, even some white collar crimes are committed primarily because the offender has grown to hate his employer (for example) and wants to exact revenge. "Hate" is not what distinguishes bias crimes from all other crimes.
8.7.2009 5:59pm
PatHMV (mail) (www):
Danny, why not back up and ask what purpose is actually served by this law, whether as it's written or as you've believed it to be?

In many instances, the name of the bill itself gives away its uselessness. The murders who killed Matthew Shepard are serving life without parole. One of them plead guilty in order to avoid the death penalty. No meaningful additional penalty can be imposed on them (personally, I'd be happy to enhance their sentence in a lot of ways, as I would for most murderers, but the same folks who want hate crimes legislation would likely oppose my ideas as cruel and unusual punishment). Nobody will be deterred from murdering a black man for being black just because the crime will be labelled a hate crime.

So then the question shifts to lesser crimes than murder. This brings up two questions. First, do we want to punish the same actual conduct differently based on the motive, rather than the legal intent, of the offender? I'm not aware of anyplace else in the criminal law where we actually do that. What rehabilitative or other impact will it have on the offender, to know that his extra 2 or 3 years in jail will be because he beat up the victim because of the color of his skin (rather than a desire for his wallet, or his personal hatred for him, or whatever)? Will that knowledge make him more or less likely to commit future crimes when released? Will it merely teach him to not scream the n-word when beating up on a black man?

The second question is whether the additional punishment will have a deterrent effect. Will the dumbass racist redneck stop and think, before beating up the gay guy passing by, that if he does that and gets caught, he'll get not just 10 years for attempted murder or aggravated battery, but an additional 5 years for a "hate crime"? Is there anybody whose behavior we want to target with this legislation who will actually be deterred by these increased penalties?

To me, the answer is probably not.
8.7.2009 6:11pm
Danny (mail):

Then you would support my proposals as a better alternative which would better live up to the ideals we share on this subject?


Yeah, I guess so.


I'm curious now, though, from where you get your "general concept of hate crimes." There really aren't any "traditional, established" hate crime, I don't think. We have occassionally criminalized in the past things (like planting a burning cross on somebody's lawn) in part because of the terrorizing effect they will have on the victim, but they were never called "hate crimes."


Well this sort of action has been around forever. I've seen discussions and read articles (in the popular press, not academic articles) about this sort of terrorizing action and the related laws, in the US and in Europe. There has been a rapid increase in these intimidation attacks in Europe recently (against different European nationalities, gypsies, gays and lesbians, and non-European immigrants), sparking debate and legislation. I am in favor of laws that criminalize intimidation of groups of people. Burning a cross in the yard of a black person or gay person to "send a message" should not be treated like burning trash in their yard. Writing "kill the Jews!" on the car of someone you think is Jewish should be treated more severely than drawing a smiley face on it while drunk. A neo-Nazi beating up a black or gay person at a bus stop commits a qualitatively different crime than a white straight person who beats up a black or gay person because of a quarrel over a traffic accident or a sexual misunderstanding. Motive matters, it changes the nature of the crime, which should reasonably be reflected in the punishment. Society has an interest in deterring extremists from engaging in acts of ethnic (etc.) intimidation.

Since the term "hate crimes" is too vague, why don't we just call it "terrorism" or "group intimidation" - in fact aren't there are already US laws on "ethnic intimidation"? Other groups like religion or sexual orientation could simply be added to those).
8.7.2009 7:40pm
tarheel:
As a complete aside, I went to law school with Rittgers and worked on a journal with him. Good lawyer, and I'm pretty sure he could kill any of us with one finger. Good work, Rittgers!
8.7.2009 7:52pm
Danny (mail):
I should have said "intent matters" above
8.7.2009 7:57pm
traveler496:
PatHMV, thanks (but I was actually seeking the perspective of someone who thinks the cellphone scenario is not ridiculous:-)
-----------------------
Having looked fractionally more at the context, I now see that my con man example is bogus absent bodily harm etc.; sorry about that.

I'm still curious how a definition so central to such a high-profile piece of legislation can be so - bad.
8.7.2009 8:02pm
Putting Two and Two...:

Is there anybody whose behavior we want to target with this legislation who will actually be deterred by these increased penalties?


The criminals who currently receive minimal jail time or suspended sentences -- if they're charged at all -- in those parts of the country where prosecuting bias crimes (of particular sorts especially) isn't much of a priority.
8.7.2009 8:11pm
ShelbyC:

The criminals who currently receive minimal jail time or suspended sentences — if they're charged at all — in those parts of the country where prosecuting bias crimes (of particular sorts especially) isn't much of a priority.


If those folks exist, why did they have to call it the Mathew Shepard law instead of the [one of those folks] law?
8.7.2009 8:20pm
PatHMV (mail) (www):
Danny, I don't have a problem with some law like that. I agree that the harm from burning a cross in a black man's yard in the 1960s was far greater than simply burning some trash in the same location. I'm certainly open to consideration of a bill which does as you describe.

But it must be narrowly drawn to target primarily actions, not thoughts and words and even conduct which is fundamentally expressive. It is legal to burn the American flag (and it should be; I agree with the Court's decisions in that regard), even if one's intent is to damn Americans, or scare them or otherwise intimidate them. I don't see how one can constitutionally protect burning the flag, but not a cross, in a public place or on private property with the consent of the owner.

So we're limited to actions which are already a crime, and we're going to make them worse crimes based on the thoughts and beliefs of the person committing the crime. I'm generally in favor of sentencing the person, not the crime, so I'm in favor of this, but the courts are slowly moving away from the concept in most cases.

And Putting Two and Two, can you name those parts of the country and give me some statistics and examples, please? I mean, examples that didn't lead to fairly widespread public condemnation of the judges and prosecutors involved?
8.7.2009 10:09pm
Prosecutorial Indiscretion:
But 6(E)? It would allow the federal government to prosecute any crime it wanted, simply because the object used in the crime had traveled in interstate commerce. Ridiculous.

As I understand it, this is the current state of the law under any statute where Congress is exercising the full measure of its jurisdiction under the commerce clause (e.g., where the statutory element is "in or affecting interstate commerce"). So while the proposed 18 USC 249 enumerates things a bit more specifically, Congress is not actually claiming any additional jurisdiction beyond what they've claimed in other statutes.
8.7.2009 10:29pm
Bob Goodman (mail) (www):
A neo-Nazi beating up a black or gay person at a bus stop commits a qualitatively different crime than a white straight person who beats up a black or gay person because of a quarrel over a traffic accident or a sexual misunderstanding. Motive matters, it changes the nature of the crime, which should reasonably be reflected in the punishment. Society has an interest in deterring extremists from engaging in acts of ethnic (etc.) intimidation.

But what about my argument that targeting a minority makes the criminal less of a threat to people in general, and so the crime should be punished less? The smaller the minority targeted, the less your chance of being a victim. Ideal would be the case where the criminal killed off the last person of the class, in which case we're all safe, and the crime can never be committed again, not only by the same criminal, but anyone else too.
8.8.2009 12:10am
Danny (mail):

But it must be narrowly drawn to target primarily actions, not thoughts and words and even conduct which is fundamentally expressive. It is legal to burn the American flag (and it should be; I agree with the Court's decisions in that regard), even if one's intent is to damn Americans, or scare them or otherwise intimidate them. I don't see how one can constitutionally protect burning the flag, but not a cross, in a public place or on private property with the consent of the owner.


I think you're taking the wrong lesson from the cross-burning. Some people wanted to ban burning the American flag (not other flags) because it is considered a sacred symbol. The problem with cross-burning is not the fact that the cross is a sacred symbol, but that burning a cross is interpreted as a conventional ethnic death threat in some places. It is a gesture designed to intimidate an ethnic group. Burning an American flag in the United States where 95% of people are Americans cannot be interpreted as a threat of imminent violence against any and all Americans. Burning an American flag in front of the house of an American living in a very anti-American country might be more in line with ethnic intimidation IF flag-burning is a conventional death threat in that culture.

Death threats are culture-specific. In Italy leaving a bullet in someone's mailbox, or mailing them severed rabbit heads, can be interpreted as a death threat. Cross burning would be interpreted more like flag-burning than as a death threat in Europe. It is the intent to communicate the threat of violence to a group of people, not the action, that counts as ethnic intimidation.
8.8.2009 12:24am
Danny (mail):

The smaller the minority targeted, the less your chance of being a victim.


That's a silly thing to say in the context of ethnic intimidation, the purpose of which is precisely to target a minority. The bigger the group of people the harder to single them out. The situation is precisely the opposite of what you describe.
8.8.2009 12:28am
neurodoc:
<blockquote><b>Bob Goodman</b>: But what about my argument that targeting a minority makes the criminal less of a threat to people in general, and so the crime should be punished less? The smaller the minority targeted, the less your chance of being a victim. Ideal would be the case where the criminal killed off the last person of the class, in which case we're all safe, and the crime can never be committed again, not only by the same criminal, but anyone else too.</blockquote>How to make sense of something so bizarre. Here are a couple of clues:

- "Reviewed medical abstracts and edited publications for general audiences for broadcast personality Gary Null." (Qauckwatch has an informative profile of this charlatan. http://www.quackwatch.com/04ConsumerEducation/null.html)

- "Medical, 1975-9: University of Health Sciences, Chicago Medical School. All basic medical sciences, some clinical work. Passed National Board of Medical Examiners, Part 1." (4 years medical school with no degree)
8.8.2009 12:45am
PatHMV (mail) (www):
Now there I disagree, Danny. You can't say that burning one thing is, in all circumstances, protected expression, but burning something else can be penalized, if we don't like the intended communication enough.

Which illustrates my other significant concern with the expansion of "hate crime" laws. They tend to expand, to creep into criminalizing things which do not actually cause physical harm or violate anybody's property rights, just because we don't like the thoughts being expressed.

Notice in my example that I was talking about cross-burning on private property, with the consent of the owner. If you burn a flag on somebody else's property without their permission, that is a crime and can be prosecuted. If you can prove that the intent was to threaten them with murder, that's a crime all by itself.
8.8.2009 1:13am
PatHMV (mail) (www):
You related to that asshole Borat, Bob Goodman? Your idea is so stupid it strikes me that you can't possibly be serious.
8.8.2009 1:17am
Kirk:
"the constitutionally protected right of black Americans to travel in interstate commerce."

I thought the events of 1861-65, and the amendments that followed, put an end to that sort of thing.
8.8.2009 10:27am
Hans Bader (mail) (www):
Some supporters of the federal hate crimes bill are so wacky that they claimed that the Duke Lacrosse players should have been reprosecuted in federal court, even though DNA evidence showed they were innocent.

Supporters of the bill like the Obama Justice Department have been glaringly biased, turning a blind eye to hate crimes committed against whites that violate existing federal civil rights laws, even as they seek to reprosecute in federal court innocent people who were acquitted of hate crimes against minorities in state court.

When black panthers were caught on videotape menacing white voters in Philadelphia, using nightsticks and racial epithets to drive them away from the polls, Obama political appointees, including Assistant Attorney General Tom Perelli, intervened to dismiss the lawsuit that had been won against them by career Justice Department lawyers -- dismissing the case after it had already been won! The Obama political appointees insisted that the Justice Department should throw out its victory by not permitting a default judgment against two of the defendants even after the court clerk had already entered a default, claiming lack of evidence -- even though the evidence of voter intimidation was captured on videotape! (The Obama appointees did allow the court to enter a toothless injunction against the third of the three defendants, which did nothing more than instruct him not to engage in such criminal acts again. But the defendants have paid no penalty for their crimes).

While bending over backwards to protect black hate-criminals who menaced voters in violation of the Voting Rights Act, the Administration has insisted that others found innocent of hate crimes in state court should be prosecuted all over again in federal court, relying on a loophole in Constitutional protections against double jeopardy. The recently passed federal hate-crimes bill, which Obama has pledged to sign, broadens the federal hate crimes law to the point where it punishes the same conduct already prohibited by state criminal laws and hate-crimes laws, allowing federal prosecutors to bring charges all over again after a jury has found that the defendant is not guilty of hate crimes.

As law professor Gail Heriot, a member of the U.S. Commission on Civil Rights, notes in the Philadelphia Inquirer, advocates of the federal hate crimes law have insisted that even in state cases where the evidence of a hate crime was very weak, leading to acquittals, federal reprosecution is warranted. For example, "Some have even called for federal prosecution of the Duke University lacrosse team members--despite strong evidence of their innocence." Amazingly, even though DNA evidence proved the Duke Lacrosse players did not commit any rape (much less the racially-motivated rape they were accused of), and the North Carolina attorney general has admitted that they were innocent, there are still those who wish they had been prosecuted in federal court.

The U.S. Commission on Civil Rights voted 6-to-2 to oppose the federal hate-crimes bill. The Commission called the bill a "menace to civil liberties" because "its most important effect will be to allow federal authorities to re-prosecute a broad category of defendants who have already been acquitted by state juries." Thus, it will erode protections against double jeopardy.

But Congress chose to heed instead the 2 dissenting Commissioners, such as Michael Yaki, who has argued that the bill was necessary to allow people found not guilty of a hate crime in state court to be reprosecuted all over again in federal court. In his July 6 San Francisco Chronicle website commentary "Why We Need the Matthew Shepard Hate Crimes Bill," Yaki points to the example of Joseph Silva and George Silva, who were found guilty of a crime in California state court, but not guilty of committing it for racial reasons, as an example of people who need to be reprosecuted for hate crimes in federal court. In fact, the Silvas are already being reprosecuted by the Obama Justice Department in federal court under the existing, narrow federal hate-crimes law, which only reaches the minority of hate crimes that affect federally-protected activities. The new hate-crimes law eliminates the longstanding requirement that hate crimes affect federally protected activities before federal prosecutors have jurisdiction to reprosecute them, making most state hate-crimes federal hate-crimes as well. (The Obama Justice Department "strenuously resisted efforts to tighten the bill's language" to eliminate unjustified prosecutions).

A desire to get around constitutional double-jeopardy protections was also voiced by many backers of the bill, like the Leadership Conference on Civil Rights and MALDEF, which pointed to a state jury's acquittal of Pennsylvania teenagers accused of a hate crime against an illegal alien as a reason for passing the federal hate-crimes bill.

Ironically, while seeking to circumvent the constitutional rights of American citizens accused of hate crimes, the Obama Administration has given foreign terrorists rights that they are not entitled to under the Constitution, such as giving enemy combatants captured in Afghanistan Miranda warnings even though that is not legally required. Terrorists captured overseas by U.S. troops are not entitled by the U.S. Constitution to Miranda warnings. Nor are Miranda warnings required by Afghan law, international law, or treaties like the International Covenant on Civil and Political Rights.

Many supporters of the federal hate-crimes bill want to allow those found innocent to be reprosecuted in federal court. As one supporter put it, "the federal hate crimes bill serves as a vital safety valve in case a state hate-crimes prosecution fails." The claim that the justice system has "failed" when a jury returns a not-guilty verdict is truly scary and contrary to the constitutional presumption of innocence and the right to trial by jury.

But it is a view widely shared among supporters of the hate-crimes bill. Syndicated columnist Jacob Sullum pointed out in 1998 that Janet Reno, Clinton's Attorney General, backed the bill as a way of providing a federal "forum" for prosecution if prosecutors fail to obtain a conviction "in the state court."

Supporters of the hate crimes bill also see it as a way to prosecute people even in cases where the evidence is so weak that state prosecutors have decided not to prosecute. Attorney General Eric Holder has pushed for the hate crimes bill as a way to prosecute people whom state prosecutors refuse to prosecute because of a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each, a federal jury acquitted the accused, finding them not guilty.

Advocates of a broader federal hate-crimes law have pointed to the Duke lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players -- even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina's attorney general conceded, and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations.

Given the politically-charged nature of many hate-crimes trials, Kimberly Potter of New York University was probably right when she told Congress back in 1998 that if the federal hate crimes bill is enacted, "the acquittal of defendants in state court will frequently trigger demands for federal prosecution."
8.8.2009 10:30am
Kirk:
PatHMV,

Sorry, given that the preface to (6) reads
Such violence substantially affects interstate commerce [emphasis added]
I can't see the faintest hint of legitimacy to it. (Yes, it's once again those invisible words "or anything construed as having an effect on interstate commerce" that my flawed eyes just can't seem to find in the text...)
8.8.2009 10:38am
Prosecutorial Indiscretion:
Now there I disagree, Danny. You can't say that burning one thing is, in all circumstances, protected expression, but burning something else can be penalized, if we don't like the intended communication enough.

Speech can be penalized if we don't like the intended communication enough. Granted, there's a very narrow category of speech that can be so penalized, but the content of that speech is the same as a cross burned under prosecutable circumstances.
8.8.2009 11:30am
Bob Goodman (mail) (www):
The smaller the minority targeted, the less your chance of being a victim.

That's a silly thing to say in the context of ethnic intimidation, the purpose of which is precisely to target a minority. The bigger the group of people the harder to single them out. The situation is precisely the opposite of what you describe.

No, you just didn't get it in the context I explained it in, so I'd better do better. The smaller the minority targeted, the less your chance of being a member of that minority, so the less your chance of being a victim.

I'm getting at the purposes of penal law. What reasons are there for the differences in penalties? Here the whole issue is to have different penalties for what is mostly the same act. I'm giving the case for the penalty's being smaller in these cases, because the fraction of persons potentially affected is smaller. If it's all about how much danger is posed to society, it would seem that the range of potential victims would be an important factor.

Now, it could be argued that everyone is potentially part of some minority, and therefore that my statement was like that of people who thought it would be safer to avoid the falling Skylab satellite by avoiding being on water, because it was projected to have a much greater chance of falling on water than on land. ;-) But that's not the case here, because these bias/hate crime laws don't deal with all potential minorities, only certain identified or identifiable ones.

And neurodoc, maybe things have changed, but I took Part 1 after the basic medical sciences, not after 4 yrs. And just because some things Gary Null asserts are questionable, does that mean he'd've been better off not having scientific consultation with any of his material? I worked at a nursing home that a year later was indicted on a large number of counts of Medicare fraud. I worked at NMC, Inc., and a year after I was fired they were under a grand jury probe for false statements about their hemodialyzers, and a year after that they no longer existed. I can't take responsibility for everything my employers and clients do. What about criminal lawyers?
8.8.2009 2:56pm
PatHMV (mail) (www):
If you view the purpose of criminal law as protecting some numerically average citizen, ok, Bob. But if you view the goal of criminal law as protecting everybody, then you're view is moronic. The question is how likely the criminal is to repeat a crime against anybody, not just against the numerically "average" citizen. So someone with a bias against minorities sufficient to lead him to commit violence against one member of that minority, then he's much more likely to commit such violence against a member of that minority.

Idiot.
8.8.2009 4:26pm
Bruce_M (mail):
I agree this law is horrible. Just wanted to chime in and note that the commerce clause doesn't only include interstate commerce. It also includes foreign commerce and commerce with indian tribes. So it's not that the Japanese-made phone crossed state lines, it's that it was imported into the United States (foreign commerce).

It's still a stupid, horrible, and unconstitutional law.

But both conservatives and republicans both have vested interests in overly broad, all-encompassing readings of the commerce clause (for different things).
8.8.2009 5:25pm
Bob Goodman (mail) (www):
The question is how likely the criminal is to repeat a crime against anybody, not just against the numerically "average" citizen. So someone with a bias against minorities sufficient to lead him to commit violence against one member of that minority, then he's much more likely to commit such violence against a member of that minority.

So what about the case of the person who kills off the last member of the minority he hated? There's nobody left to commit violence against, so the likelihood is 0. BTW, this is just like Ernest van den Haag's example of the person who kills the only person he ever hated (his mother in law or whomever), and so is immediately rehabilitated by the act itself.

Idiot.

Hey! Just because you don't get what I'm writing...!
8.8.2009 5:51pm
Clayton E. Cramer (mail) (www):
But both conservatives and republicans both have vested interests in overly broad, all-encompassing readings of the commerce clause (for different things).
Huh? I notice that the left end of the Court generally bought into the "interstate commerce" clause argument in Raich, because this is the secret key to unlimited federal power over matters traditionally left to the states (such as Heart of Atlanta Motel).
8.8.2009 10:43pm
Clayton E. Cramer (mail) (www):

I'm still curious how a definition so central to such a high-profile piece of legislation can be so - bad.

I would rather ascribe this to the stupidity of the idiots that write our laws--but you can see why some people see this legislation as a Trojan Horse for punishing free speech, if the person speaking unPC things ends up ever getting into a fight with a member of America's most favored minority group.
8.8.2009 11:06pm
LarryR (mail):
The support most lefties give to cutting back on Fifth Amendment protection using the dual sovereignty concept shows they are for Constitutional protections unless their favorite causes are involved.

The words of the Fifth Amendment are fairly clear. It is law professors and courts who have created this doctrine to deprive individuals of this clear constitutional protection.

If the left had spent the last decades allied with libertarians and conservatives who supported individual rights, we could have established a strong tradition of protecting these rights.

But what we have now is one side creating legal arguments to diminish Constitutional protections.

For the past 70 years the left's views on civil liberties have largely prevailed in the courts. I wonder whether they have given much thought to what happens if they really lose control of the courts. What if, say, multiple terrorist acts in this country lead to the election of a hard-core law and order president who seriously attacks individual liberty and orders his Justice Department to craft arguments explaining why the fairly clear language of the First Amendment, Fourth Amendment or Fifth Amendment should be interpreted in ways that previous courts would never have allowed?

One good thing about originalism is that Constitutional provisions mean some particular thing rather than whatever the political climate dictates.
8.10.2009 11:38am
Bob Goodman (mail) (www):
One good thing about originalism is that Constitutional provisions mean some particular thing rather than whatever the political climate dictates.

So? What if the political climate dictates that originalism, hitherto employed, be suspended? -isms are operated by -ists.
8.10.2009 7:36pm
Starchild (mail) (www):
In order for anyone to be prosecuted, whether by state, federal, or other officials, there should have to be a victim willing to press charges. In cases where the only victim is dead, non-human, or otherwise unable to file or have parents or guardians file on his/her behalf, civilians not having a connection to the case should be allowed to file charges (including non-profit groups, etc.), but in no case should government officials be allowed to initiate a prosecution on their own. This is the only effective solution I can think of to the rampant problem of prosecutorial abuse.
8.11.2009 6:20am

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