Subverting symbolism: the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act and cooperative federalism.

AuthorSimmons, Kami Chavis

INTRODUCTION I. CONTEXTUALIZING THE MATTHEW-SHEPARD-JAMES BYRD, JR. HATE CRIMES PREVENTION ACT (THE "HCPA") A. The Prevalence of Hate Crimes in the United States B. Hate Crimes Legislation State-by-State C. Pre-Existing Federal Hate Crimes Legislation 1. Ku Klux Klan Act of 1871 2. The Civil Rights Act of 1968 (18 U.S.C. [section] 245) 3. Hate Crimes Statistics Act of 1990 4. Hate Crime Sentencing Enhancement Act D. Contextualizing the Michael Shepard-James Byrd, Jr. Hate Crimes Prevention Act ("HCPA ") 1. The HCPA: Federal Jurisdiction to Prosecute Hate Crimes 2. The HCPA: Provision of Federal Funding to Address Hate Crimes E. Criticisms of the HCPA 1. Federalism Concerns 2. The Role of Symbolism and the HCPA a. The Dangers of Symbolic Legislation b. The Importance of Enforcing Hate Crimes Legislation II. SAVING THE HCPA FROM SYMBOLISM" A COOPERATIVE FEDERALISM MODEL A. The Concept of Cooperative Federalism B. Cooperative Federalism and the Environmental Protection Measures C. Cooperative Federalism is an Appropriate Model for Crime Prevention 1. Constitutional Support for Cooperative Federalism Programs 2. Benefits of Joint Federal-State Efforts in the Context of Criminal Prosecutions III. ACHIEVING BALANCE: A FUNCTIONAL MODEL FOR PROSECUTING HATE CRIMES PURSUANT TO THE HCPA A. Creating a Federal-State Task Force to Prosecute Crimes Under the HCPA 1. The National Church Arson Task Force 2. Safe Streets Initiative B. Allowing State Prosecutors to Prosecute in Federal Court 1. Proposal to Appoint Special Assistant United States Attorneys to Prosecute HCPA Cases 2. The Importance of Maintaining a Role for Federal Prosecutors IV. CONCLUSION Hate crimes are a form of domestic terrorism. They send the poisonous message that some Americans deserve to be victimized solely because of who they are. Like other acts of terrorism, hate crimes have an impact far greater than the impact on the individual victims. They are crimes against entire communities, against the whole nation, and against the fundamental ideals on which America was founded. They are a violation of all our country stands for. (1)

--Senator Edward Kennedy

And that's why, through this law, we will strengthen the protections against crimes based on the color of your skin, the faith in your heart, or the place of your birth. We will finally add Federal protections against crimes based on gender, disability, gender identity, or sexual orientation. And prosecutors will have new tools to work with States in order to prosecute to the fullest those who would perpetrate such crimes, because no one in America should ever be afraid to walk down the street holding the hands of the person they love. No one in America should be forced to look over their shoulder because of who they are or because they live with a disability. (2)

--President Barack Obama

INTRODUCTION

On April 29, 2010, three men in New Mexico videotaped themselves burning a swastika onto the arm of Vincent Kee, a mentally disabled man of Native American decent.3 Although the three defendants contend the act was consensual, the District Attorney charged them with various state offenses including kidnapping and battery.4 This case, however, is distinct from other violent crimes because a federal grand jury has also indicted the men involved under the Matthew Shepard-James Byrd Hate Crime Prevention Act ("HCPA"), a law President Obama signed on October 29, 2009. (5) Prior to the enactment of the HCPA, the federal government would have lacked jurisdiction to prosecute the defendants in this case or similar cases involving hate crimes.

The HCPA significantly expands the federal government's authority to prosecute hate crimes, also called bias-motivated crimes, in two important ways. First, the HCPA grants broad authority to the federal government to prosecute defendants accused of perpetrating violent acts because of the victim's actual or perceived race, color, religion, national origin, and, unlike other federal legislation, the HCPA expands this class of victims to also include those victimized because of gender, sexual orientation, gender identity or disability. (6) Second, in contrast to pre-existing federal hate crimes legislation, the HCPA does not require victims to be engaged in federally protected activities when the crime occurs.

While there is widespread support for the HCPA, one cannot ignore the long history of strong opposition to federal hate crimes legislation, which has resulted in many failed attempts to enact a substantive federal hate crimes bill. (7) There are various doctrinal and pragmatic objections to such legislation, but opposition is generally premised on two grounds. First, many critics question the utility of punishing "hate crimes," and argue that existing criminal statutes are sufficient without focusing on the underlying motivation of the crime. (8) Second, critics have questioned the propriety of the federal government's role in prosecuting these crimes, and have argued that states, rather than the federal government, should be

responsible for determining whether or how to prosecute such cases. (9) Now that Congress has passed the HCPA, these debates may continue, but policy makers and law enforcement officials are faced with a new law and must refocus the debate toward pragmatic strategies for implementing and enforcing the legislation. The enactment of the HCPA provokes many questions regarding its implementation and effectiveness. What are the implications, real or perceived, of the federal government's authority to prosecute hate crimes? Will the law cause federal courts to be inundated with cases? Or, alternatively, is there a risk that federal hate crimes legislation will be merely symbolic, with an implicit presumption that the federal government will not actively enforce such a law? (10) While symbolic legislation serves an expressive function in criminal law, there are notable deleterious effects of symbolic laws that authorities choose not to enforce. Similarly, increased federal intervention in shaping criminal justice priorities has long been controversial, and critics have labeled this trend the "overfederalization" of the criminal law. (11) For various reasons, critics of federal intervention in criminal justice policies believe if hate crimes are to be punished, local and state governments should retain full jurisdiction over these crimes. (12)

There is an extensive body of scholarship devoted to the concept of the symbolic politics of hate crimes legislation and to the "overfederalization of the criminal law." (13) Although I will briefly summarize these arguments, this Article does not intend to contribute to the debate regarding the merits of hate crimes legislation or the propriety of the federal government's jurisdiction to prosecute it. Instead, this Article begins a new conversation about how the federal government should enforce and implement this legislation now that Congress, after carefully considering these debates, has enacted the HCPA and President Obama has signed the bill into law. The primary objective of this Article is to refocus the debate and discuss new questions that should be considered in light of Congress's passage of a federal hates crimes law. Despite the objections of critics, the federal government now has the authority to prosecute hate crimes and attention must turn to examining the best manner in which to enforce the law. The new dialogue should answer questions about how the federal government might allocate its resources to maximize the benefits for jurisdictions most in need of technical assistance or determining what boundaries should exist between the federal government and states in prosecuting and investigating hate crimes. Drawing upon principles of cooperative federalism, this Article proposes a model that seeks to ensure the federal government's authority to prosecute hate crimes under the HCPA is not merely symbolic, but is implemented in a manner that respects the principles of federalism in the criminal justice context.

The HCPA will require coordinated efforts on behalf of the federal government and local law-enforcement agencies. However, ensuring a proper balance between federal and local governments is an important constitutional tradition, and recognizing the each entities' role is particularly important in the realm of criminal justice. (14) The local primacy of criminal justice issues is well-established, and the overwhelming majority of crimes are prosecuted at the local level. (15) All local crimes, of course, do not warrant federal prosecution, but the nature of certain criminal acts necessitates the intervention and oversight of the federal government. The distinct harm associated with hate crimes, where perpetrators target their victims based on race, religion, ethnicity, or sexual orientation, are the very types of crimes that justify federal intervention. (16) Hate crimes undermine the traditions and values to which the United States has aspired and damages the national character. This harm of hate crimes reverberates far beyond the direct victims and the local communities in which they live. As President Bill Clinton poignantly stated, "[Hate crimes] weaken the sense that we are one people with common values and a common future. They tear us apart when we should be moving closer together. They are acts of violence against America itself." (17)

Two incidents in the late 1990s offer disturbing illustrations of this "violence against America." On June 7, 1998, in Jasper, Texas, three men beat James Byrd, Jr., slit his throat, chained him to the back of a truck, and dragged him for several miles before he died. (18) Several months later, in Laramie, Wyoming, Matthew Shepard's assailants beat him, chained him to a fence, and left him to die. (19) Each of these cases garnered national attention because many people perceived Matthew Shepard and James Byrd. Jr. to be victims of hate...

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