The feds shouldn't prosecute Dylann Roof; redundant charges against the Charleston shooter highlight the unconstitutional absurdity of the federal hate crime statute.

• Author: Sullum, Jacob
• Position: Columns

DYLANN ROOF, the man charged with murdering nine people at the Emanuel AME Church in Charleston, South Carolina, in June, faces execution or life imprisonment if he is convicted in state court. A federal indictment announced in July threatens him with the same penalties, although you can't kill a man more than once or lock him up for more than a lifetime.

What looks like a redundant prosecution is actually something worse. It is an unconstitutional attempt to federalize a crime that South Carolina's courts are perfectly capable of handling, for the sake of sending a message that the criminal law should not be used to send.

The New York Times reports that "Justice Department and F.B.I, officials have said the Charleston shooting was so horrific and racially motivated that the federal government must address it." Noting that "South Carolina does not have a hate crime law," the Times says the feds worry that "a murder case alone would leave the racial component of the crime unaddressed."

In other words, by charging Roof with murdering people "because of their actual and perceived race and color," the Justice Department condemns his benighted beliefs as well as his appalling actions. The Times notes that the evidence against Roof includes his "racist Internet manifesto" as well as his anti-black comments as he shot parishioners at the church.

Since Roof already faces the maximum penalty under state law, he can hardly receive extra punishment for his bigotry. But defendants in less serious cases can and do: An assault that might be punished by a year or two in prison under state law can trigger a sentence up to 10 years under the federal hate crime statute if the defendant has a history of writing or saying racist stuff.

In fact, the offender in such a case can be punished twice for the same crime, once under state law and again under federal law. And if he happens to be acquitted in state court, he can be tried again in federal court.

This sort of serial prosecution looks a lot like double jeopardy, which is prohibited by the Fifth Amendment. But according to the Supreme Court, it is merely "dual sovereignty": The same action is two crimes, one for each...