Friday, October 09, 2009


I’ve just had a chance to review the text of the Amendment attached to the current Defense Authorization Act; the Amendment is fully entitled “The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act”.*

This is not intended as an exhaustive review and I am not a lawyer. But these are my impressions, and I will only deal with the parts of the thing that strike me as significant.

First, it’s always important to look at the legislative “Findings”: these are the ‘facts’ – as the legislators have chosen to see them – upon which the Act will be justified. These Findings constitute Sec. 4702.

Finding 1 asserts that “The incidence of violence motivated by the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim poses a serious national problem”.

Well, I am no supporter of violence, but that includes the violence latent but potential in poorly thought-out laws that can have hugely unintended but perfectly forseeable consequences to a democratic politics and a Constitutional Republic. So I’m still looking at the tires on this thing.

Second, it’s clear that Congress is trying to cut itself in to a place at the table by claiming it’s a “national problem” – which is true if you mean that this stuff goes on in every State, but every State has laws against ‘violence’ and an assault or an assault-and-battery or anything worse along that spectrum is already illegal in all the States and has been all along. Curiously, this getting-a-place-at-the-table is the same type of objective that got Us into Iraq and so on throughout what is becoming the Beltway attempt at creating a Greater Southwest Asia Co-prosperity Sphere; methods of operating migrate in the hothouse of the Beltway, don’t they?

Ditto that it’s a “serious” national problem, as so many things are. But again, this starts Us towards the ‘emergency’ element that has already been seen in a lot of prior laws of this nature (I’ll discuss my thoughts on that ‘nature’ below.) And of course, if it’s an ‘emergency’ then a) We shouldn’t waste precious time deliberating or even understanding the Act, and b) if it’s an ‘emergency’ than Congress needn’t be held to the high standard of actually coming up with a completely thought-through piece of legislation. We’ve been seeing a whole lot of this in the past 15 or 20 years.

Finding 2 observes that “Such violence disrupts the tranquility and safety of communities and is deeply divisive”. Yes it would tend to do that, although there are a lot of divisive things that really need to be looked at, not simply accepted as the latest Congressional whizz-bang. And the deepest “divisiveness” in the national community these days is not caused by the “violence” – which is still rather rare (though awful when individual acts are perpetrated) and is always under the judgment of State criminal laws. Rather, it is Congress’s decades-long baaad habit of trying to score points with this or that lobby or advocacy by trying to play Big Mama or Big Daddy; no wonder it seems at times that Our national community has become as divided and bickering as a dysfunctional family in a Tennessee Williams play.

Finding 3 assures everyone – including increasingly restive State officials who are still trying to get their minds around – say – the Adam Walsh Act of 2006 – that “State and local authorities are now and will continue to be responsible for prosecuting the overwhelming majority of violent crimes in the United States, including violent crimes motivated by bias”. Gee, that’s nice but the Constitution already has given the States that authority and they don’t need Congressional ‘permission’ or ‘approval’ to do their jobs.

But the Finding then goes on: “These authorities can carry out their responsibilities more effectively with greater Federal assistance”. Well, while I hold no brief for the gentleman, Ronald Reagan got a lot of mileage out of the ambiguity of that old exclamation ‘I’m from the Federal government and I’m here to help’. Looking at the economy, the war(s), and a whole lotta other ‘great’ Federal ideas, I am not reassured.

Finding 4 then exclaims that “Existing Federal law is inadequate to address this problem”. Well, first, which problem? About the violence or about the Federal intrusiveness or about the Federal intrusiveness with ill-considered or genuinely baaad ideas?

And second, Federal law is “inadequate” because it’s not supposed to be here, not to put too fine a point on it.

Finding 5 says that “A prominent characteristic of a violent crime motivated by bias is that it devastates not just the actual victim and the family and friends of the victim, but frequently savages the community sharing the traits that caused the victim to be selected”.

First, I am really put on guard when they start using vivid, emotionally extreme language: this strikes me as the old Goebbels trick of whipping up the public opinion into a frenzy, and while the now-agitated herd is thus kicking up dust then Berlin can quickly issue a new Decree or ‘Emergency Law’ that nobody looks at carefully. We are Citizens, not the herd in the background of a Wild West movie. “Devastates”, and “savages” are too much of too much, and it betrays a certain insidious manipulation that I will not simply accept as a ‘good PR ploy’.

And this is all part of the now way-over-the-top ‘victimism’ philosophy that all people are essentially helpless and psychologically fragile and need Big Mama/Big Daddy to make life bearable for them.

Finding 6 says “Such violence affects interstate commerce in many ways” and it goes on for a bit in that mode.

This is the new ploy: to base Congressional and Federal intrusions on ‘the Commerce Clause’ – that section of the Constitution which gives the national government authority over “interstate commerce”. Apparently that “commerce” is defined now to include any travel for any purpose, or any communication for any purpose, that crosses – actually or virtually – a State line. This is a profoundly dangerous expansion of the definition of “interstate commerce” and “commerce” in general. A crucial insight of the Framers was that the free exchange of persons and ideas and their efforts constitutes the lifeblood of a society, especially the vigorous and vital society that ‘Americans’ were expected to create through their now-freed-up energies, unhindered by monarchical restrictions to keep the peasants and subjects in their place and in one place. This whole trend in Congressional expansion reely reely needs to be looked at.

Yes, persons are sometimes given pause when going into particular situations or places – but that goes with the territory in a free and – may I? – diverse polity. Bad things may happen here and there, but the Federal government is far too blunt an instrument to be used in threading the needle to stitch the fabric in the marvelous web of society’s interactions.

Finding 7 then goes on to talk about “slavery” and how it was “defined by race, color or ancestry” of those held in bondage”.

First, again, this is an excessive historical reference, and smacks of the Goebbels play again. Are We back to ‘slavery’ now? And do these incidents – awful and violent as they are – constitute a national emergency on the level of ‘slavery’?

Thus when the Finding goes on to teach Us that “eliminating racially motivated violence is an important means of eliminating, to the extent possible, the badges, incidents, and relics of slavery and involuntary servitude” I start to wonder if this is a replay of the Civil Rights Act of 1964 (a much more judicious and well-grounded Act).

But of course, the plan here is precisely that: to re-ignite the old ‘flame’ of 1964 and use its bright and urgent aura to slide yet another ‘emergency’ into the national stew, already bubbling with a number of already-stoked ‘emergencies’ in the past few decades.

Finding 9 then leaps into the dust-shrouded space that the foregoing Findings create: “Federal jurisdiction over certain violent crimes motivated by bias enables Federal, State, and local authorities to work together as partners in the investigation and prosecution of such crimes”.

Well, that’s really nice. But the FBI is already around to be called in when needed by those State and local authorities. (The government’s hidden kicker in all this apparent bonhomie will appear later in the text and I’ll get to it when it comes up here.)

And Finding 10 caps it all by deciding that “The problem of crimes motivated by bias is sufficiently serious, widespread, and interstate in nature as to warrant Federal assistance to States, local jurisdictions, and Indian tribes”.

Uh-huh. Once again, the kicker will come a bit later on in the text.

And there’s that “interstate” angle again.

And – permit me a moment of historical awareness – let Us recall that the experience of the “Indian tribes” with the Federal government has been decidedly mixed in the past three centuries, not to exclude the “Indian Wars” where the tribes were pretty much exterminated. And that just goes to show that the Feds’ arrival on the scene bears more than a little resemblance to a knock on a Transylvanian cottage door in the middle of a dark and stormy night: garlic and a cross are recommended to the wise householder.

Section 4703 – “Definitions” – adds “gender identity” after the already-established “gender” in the list of covered crimes from that far too un-studied Violent Crime Control and Law Enforcement Act of 1994 (which year, I still say, ranks as one of the more ominous in the history of American law, which says a lot in such a crowded field).

Section 4704 authorizes the Attorney General to “provide technical, forensic, prosecutorial, or any other form of assistance to criminal investigation of any crime” covered by the Act.

But doesn’t the FBI do that now? But of course, the “prosecutorial” is not part of the FBI menu of available services, and that’s a slip-in that can open up huge new vistas for the national government in these matters.

Of those covered crimes, sub-section C lists any crime of violence, already a felony under State, local, or tribal laws, that “is motivated by prejudice based on actual or perceived … gender identity”.

And my concern is just how they go about determining the “perception” or “motivation”? This is where the “thought crimes” opposition, I imagine, comes in currently among dissenting legislators and others. Perhaps you have to yell out some epithet that reveals your opinion of the person you’re about to wale on? Although it’s not hard to imagine that a fistfight started over a motor vehicle accident, say, can suddenly become a classic ‘Federal case’ if you happen to bolster your position by yelling some epithet while delivering a left-hook or a hay-maker. We are, I imagine, meant to trust the local US Attorney to use his/her discretion in whether to make a Federal case out of it – that doesn’t really reassure.

Then they sweeten the pot with “Grants”: The Attorney General can award grants to State, local, and tribal law enforcement for investigation and prosecution of these crimes.

Well, this gambit has worked well enough before and for quite a while now. The local police get the promise of money if they go after these crimes (nor perhaps will the actual use of those funds be strictly audited) – verrrry neat.

But it’s 2009 and there isn’t that much money going around anywhere, including the Feds who have simply been printing the stuff for quite a while, though there is nothing being produced to actually ‘back up’ the paper money any longer. And I think, if State reservations about the Adam Walsh Act requirements among others is any indication, that a lot of States are now realizing that ‘Federal grants and monies’ cost a lot more than they’re worth. But Congress is, here, running the plays that worked so well in the whoopee days of the 1990s, and those days are gone, baby, gone.

But not to worry. Congress, this time around anyway, wants to see some Reports, and “not later than December 31, 2011”. But not about whether any of this plan is working; just about how the monies, in general, have been distributed – which is not so much a Report with any analysis of the real important questions, but rather an accounting sheet with Who applied and For how much and What amount was granted.

Section 4705 gets a little meatier, by which I mean ominous. Sums will be appropriated “as are necessary to increase the number of personnel to prevent and respond to” these types of crime.
First, the actual types of these ‘personnel’ is left unsaid: clerks and typists and data-entry folks? Sworn police personnel in some new police agency?

Second, you have to note that “prevent” … are We taking yet another foray into “preventive” policing? This is the ‘Minority Report’ gambit of going after folks before they have committed a crime – which is to say before they have committed any crime and therefore when they have actually done nothing against the law. And this is sooooo not-good from the perspective of any traditionally American vision of how law works in Our free society.

Section 4707 – thankfully – defines “Hate crime acts” as requiring the infliction of willful bodily injury or death or the attempt to cause same on the basis of a target’s “actual or perceived race, color, religion, or national origin”. Although it goes on to add ‘especially if’ “the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill”.

But then there’s nothing about “gender identity” or even “gender”.

And while I hold no brief for genuine sexual abuse (let alone aggravated), that definition has proven to be hugely vague and elastic in prior legislative efforts, and while such vagueness gives prosecutors all sorts of nice leeway to achieve their purposes, it isn’t a really wise path for any justice system to take.

And it goes on about if a perpetrator uses “a channel, facility, or instrumentality of interstate or foreign commerce in connection with” the commission of the crime or “interferes with commercial or other activity in which the victim is engaged at the time of the conduct” or “otherwise affects interstate or foreign commerce”, then the sentences or fines are a lot stiffer.

This could mean a telephone conversation to somebody in another State – although you might make a case that simply because a telephone can be used in interstate commerce then any phone call will do. That’s what vague laws can result in.

And again, this trend toward using ‘interstate commerce’ as a legal hook for Congress to break open space at the table is starting to grow and expand. And ‘breaking open’ means breaking down the walls that the Framers built to protect local and State society from national decrees, even if they are ‘well intentioned’ and ‘in a good cause’.

And of course that “otherwise interferes in interstate or foreign commerce” pretty much removes the wall altogether.

But 4707(b)(1) then reassures that “No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in wiring of the Attorney General or a designee”.

Well, OK, but that’s like saying that no Soviet military operations may be undertaken without the written approval of the USSR Minister of Defense. Just how hard is it going to be to get that “certification”?

And that “or a designee” – which could, according to this law, be just about anybody.

BUT THEN – and here’s the kicker – Section 4707(b)(1)(C) includes among the justifications for such “certification” that “the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence”.

So indeed then. If a State doesn’t produce a verdict that Washington likes, then the Feds can take over and do the job themselves. I don’t like this at all – because the whole idea of States taking care of their own criminal justice is a key element in the entire federal arrangement set up by the Framers and their Constitution.

So here, again, Congress’s “partnership” and “assistance” turns out to be window-dressing for something else altogether.

And it means that once Congress has decided to give something to one of its seemingly endless list of Identities, then the overall herd of the citizenry – the members of State juries – can be told to go take a hike if they don’t come up with the verdicts Congressional legislators want their favored Identities to get.

And with all due respect to anybody’s suffering and outrage, this is really not a wise move on soooo many levels.

Further, immediately thereafter, Section 4707(b)(1)(D) adds that the Feds will take over if “a prosecution by the United States is in the public interest and necessary to secure substantial justice”.

How can it possibly be in the public interest for the Feds to override State criminal juries?

And just what is “substantial justice”? I think – and I’m no lawyer – that this has something to do with a distinction between what law schools have taken to calling “procedural justice” and what they have taken to calling “substantial justice”. We really have to pay more attention to what they’re teaching in the law schools now – and have been, I think, for some decades now.

“Procedural justice” is what the average Citizen would consider to be the way things go in the American tradition as set up by the Constitution: you are charged, indicted, tried before a jury while represented by counsel, and the jury makes its decision and that’s that.

“Substantial justice” is hell and gone from that: if the alleged victim doesn’t like the jury’s decision, or if the Feds find the jury’s decision politically inconvenient, then clearly the victim has not received “substantial justice” and thus the Feds have to step in to try the case over again and get the Correct verdict.

And this is not good at all. It undermines all sorts of very profound and deep public things that I’ve mentioned so far.

Again, thankfully, the law includes a “Rule of Construction” in Section 4707(b)(1)(D)92): that “the term ‘bodily injury’ … does not include solely emotional or psychological harm to the victim”. So at least We are spared a torrent of virtually unprovable claims of ‘stress’ or such internal conditions (not to say phantasmagoria) for which, really, only “spectral evidence” such as was presented to and accepted by the Salem Witch Trial court provides any ‘evidence’ at all.

‘Spectral evidence’ is evidence that only the alleged victim can ‘see’ and nobody else can so you have to take the alleged victim’s word for it. People have died from such ‘evidence’.

And there is a statute of limitations, nicely – 7 years.

Sec. 4710(1) adds another Rule of Construction: “Noting in this division shall be construed to allow a court, in any criminal trial for an offense described under this division or an amendment made by this division, in the absence of a stipulation by the parties, to admit evidence of speech, beliefs, association, group membership, or expressive conduct unless that evidence is relevant and admissible under the Federal Rules of Evidence”.

This seems to me to be a nice way of saying Yes but No.

Your religious beliefs or group membership cannot be considered evidence against you, UNLESS the evidence is relevant – but of course, ‘relevance’ is in the eye of the beholder, perhaps the very Feds who will be taking over the case.

And the Federal Rules of Evidence have been rather significantly skewed in the past 15-20 years, in favor of making things easier for Congress’s favorites to get the outcomes they want, so this is a classic protective wall with so many holes in it that it can’t support or protect any defendant as well We would like to assume.

But the law goes on to make all the right noises. Sec. 4710(3) piously insists that “Nothing in this division, or an amendment made by this division, shall be construed or applied in a manner that infringes any rights under the first amendment to the Constitution of the United States”.

Bravely spoken.

But immediately the kicker: “unless the Government demonstrates that application of the burden to the person [the accused, I imagine] is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling government interest”.

So your First Amendment rights (noticeably un-capitalized in the text of the law) are not to be infringed, unless “in the furtherance of a compelling governmental interest” … which is no guarantee at all. The government, of course, gets to define what its “compelling interest” is, and We have seen in the Findings at the beginning of this thing that the government considers the whole thing to be a national emergency of the first priority. So do the math.

Sec. 4711(4) directs that “All prosecutions conducted by the United States under this section shall be undertaken pursuant to guidelines issued by the Attorney General, or the designee of the Attorney General … that shall establish neutral and objective criteria for determining whether a crime was committed because of the actual or perceived status of any person”.

First, you note that Congress fully expects that it’s going to be ‘taking over’ cases for Federal prosecution, whenever it doesn’t like the State jury’s verdict.

Second, the “neutral and objective criteria” mean that Congress and the Feds will presume that if they don’t like the State jury’s verdict, than that means that the State jury was not “neutral and objective” and so the Feds will have to come in to right the wrong. The ‘wrong’ being, again, that “substantive justice” was clearly not done since the alleged victim (or a Beltway lobby advocating for the victim’s Identity) is still displeased with the outcome.

One cannot ignore the similarity of this gambit to the legal strategy of that government which for twelve years following the fall of the Weimar Republic operated on the principle enunciated in the so-called Nacht-und-Nebel law (tr. Night and Fog): if Berlin doesn’t like the outcome of the trial, the procedurally acquitted former defendant may be taken directly away by the Gestapo for further and more ‘substantial’ ‘justice’ in a black SS van parked, conveniently, at the foot of the court-house steps. And it was all legal.

The purpose of this law was to remind the courts, the jurors, the counsel, and all the on-lookers that you’d better do things Berlin’s way because no court and no jury of your peers can save you.
I don’t think this is really the path We want to be taking in a free Constitutional Republic where the federation of States and their federal commonwealth retain serious authority to manage their affairs, responsive to their local Citizen and where the integrity of the justice system and of the government itself rely on the confidence of the Citizens.

Sec.4712, shrewdly, goes into something else altogether: making it a Federal crime to assault or batter a United States serviceman or an immediate family member “on account of the military service of that serviceman or status of that individual as a United States serviceman”.

This may well be an added strategic legislative ploy and cover for tacking this entirely dubious law onto a Defense Authorization bill. And it looks like Congress is looking to protect troops from public opprobrium ala the Vietnam era as the nation – thanks to the Congress – descends into the quagmire of yet another, even more frakked up, foreign military misadventure and promises to enter into even more in the future.

But “simple assault” is verbal, so it’s a Federal case to repeat those Vietnam-era harangues of servicemen that used to make the nightly news.

And if you haven’t been keeping up with the definition of “battering” on the Domestic Violence scene, that needn’t involve physical contact or even any physical presence at all – it can be done over the phone, or – I suppose nowadays – by Tweet, Twitter, or email.

And – who can overlook it? – despite all the brouhaha about Congressional support for feminism and women in the military, the text of the law refers to “serviceman”.

In case you thought the authors of this thing had really read it after they’d stitched it together.

Well, that’s my review of this law.

I’d add a couple more thoughts of my own.

First, I think that after almost half a century We have to consider whether the so-called ‘civil rights strategy’ is really the right way to proceed. In the Fifties and early Sixties just about the entire country (with the exception of numerous Southerners) could and did agree that ‘slavery’ and ‘discrimination’ – especially the still on-going practices of Jim Crow – were wrong, bad, and needed to be finished off once and for all so that the country could get on with things with a clear conscience. (And there were sooo many things that the country needed to be dealing with – including how it was going to pay its way in a world rapidly building and re-building after the wrack of 1914-1945.)

But having observed the effectiveness of the Civil Rights Movement in its halcyon phase up to mid-1965, many other groups in those days of revolutionary excitements decided to adopt a ‘civil rights strategy’ for their own desired agendas.

And thus for decades now We have been confronted with the same play: sensationalist stories of this and that ‘outrage’ and the pointing-out of those who are deemed ‘guilty’, then vocal demands issued by ‘advocates’, then much Congressional harrumphing and stentorian brays, then this or that new law – with all its attendant regulations and implementing bureaucracies – is suddenly produced, nor is anyone supposed to kick any tires, since ‘it’s an emergency’ and to do so would be ‘insensitive’ and even more ‘oppressive’.

But the strong national consensus that existed over the rightness of eliminating ‘slavery’ and Jim Crow’s type of racism did not exist and does not exist for the imitator-emergencies that have followed 1965.

Thus We have been seeing ever-intensifying ‘rushes’ of the game-plan, to side-step, rather than face and overcome, public doubts and the need for a genuine deliberation.

All with the help of a Congress that seeks only to garner the votes assumed to be the reward for its cooperative legislations, and a Supreme Court that kinda likes the excitements of making stuff happen. Any stuff, even.

And now this – where Congressional backers of a dubious initiative literally Trojan-horse their plan, even in the sure and certain awareness that many will find out about it and it ain’t gonna look good, into a major Bill (the military budget) where it certainly doesn’t belong, just to make sure that the appropriate pressure-groups are satisfied. And – I think – like slightly shaky Mob bosses, to show that they can still ‘deliver’.

This wouldn’t be a good thing in the best of times. Let alone now, when We are no longer in the best of times.

And whereas you could understand how Southerners of the era were indeed 'responsible' for Jim Crow and all its frakkery, and endure a certain amount of national civic upset while showing them the error of their ways and making things right, it's hardly wise for any government to continually bethump its own Citizenry with wave after wave of accusations of this or that type of suddenly-discovered 'oppression'; waves sustained over decades and - as We see - clearly not over yet.

Nor is it then so surprising that even after the stunning frakkery of Bush 2, and the alternative of Palin and the man who selected her as his running mate, and an economy gone into a terrifying nosedive, the Democrats barely squeaked by in the last Presidential election. All those decades of scoring points by waling on the general citizenry to the delight and satisfaction of their favored Identities bore their predicatably bad fruit in 2008.

And second, I think this law is another in a disturbing and increasing line of “expressive laws”.

This is another of those things they’ve started teaching in law schools.

The theory of “expressive law” roughly holds that legislators, especially on the Federal level, can and should make laws whose primary objective is to ‘change the mood’ or ‘change the tenor’ of public attitudes. Whether the law is actually a coherent and workable law, whether it sets wise legal and even Constitutional precedents … are secondary if not indeed irrelevant concerns.

Thus, for example, 15 long years ago, defending his “Violence Against Women Act” in 1994, Joe Biden could blurt out happily that “it may be a bad law but it sends a great message”. I recall thinking at the time that this seemed a particularly not-good thing for a Senator to be thinking, and one who is – I think – a lawyer to boot. (Parts of the law were soon declared to be unconstitutional by the Supreme Court, not that it seemed to bother Joe.)

And - knowing as We do now how concepts tend to 'migrate' in the busy hothouse of the Beltway, imagine that concept migrating: It may be a bad economic policy but it sends a great message! It may be a bad war but it sends a great message! Torture may be a bad thing to do but it sends a great message! You see where this sort of thing can go - and clearly already has gone.

I think what they’re trying to do is to get folks to change their opinions and deep-seated attitudes, and using the threat of the law to do it.

It has served Identity Politics and Multiculturalism well, but then there’s the still-open question as to whether those concepts – in their full and not just their smiley-face form – are really wise or workable at all.

I can see why this law’s supporters and advocates are wiling to risk so much to sneak it in on the back of an indispensable military-budget bill.


*It’s a little bit of a job to get to the text but it can be done. Go to ; don’t be impatient, this is a 1500 page document. In the text as it should appear, the Shepard Act takes up pp. 1471-1493, which are Sections 4701-4713 of the entire 1500-page text of the Defense Authorization Act. As you can imagine, all of this is down towards the very end of the document.


Let me say here that I hold no brief for any violence exerted by one person upon another and that what happened to Matthew Shephard and James Byrd, Jr. were outrages and vicious crimes.

But I say as an American that We can't be using the Federal law as the national 'fire truck' in these matters. The States have the power they need to prosecute such crimes. And if juries of citizens can't be relied upon to do justice than the whole idea of the Constitutional vision might as well get tossed overboard.

Which, it seems, is what Congress is trying to do, bit by bit. Whether it intends such a consequence or not ... is another question for another day (but We'd best not put that 'day' off for too long).

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