Is the New Hate Crimes Bill Unconstitutional?

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Jim Kouri, CPP

Wednesday night, while President Barack Obama held his televised press conference marking his first 100 days in office, the federal hate crimes bill passed in the House of Representatives by a vote of 249 to 175.

But not everyone believes this piece of legislation is a great idea. They are cautioning many supporters that such a law is a two-edged sword and may have unintended consequences that includes misuse by overzealous and politically motivated prosecutors.

During a discussion of HR 1913, the Local Law Enforcement Hate Crimes Prevention Act of 2009, opponents of the proposed law offered compelling arguments for scrapping the bill.

For example, Federal Bureau of Investigation statistics contained in the Bureau's annual Uniform Crime Report showed that the number of so-called hate crimes has actually declined over the last 10 years. Also, the last UCR released by the FBI revealed that of the approximately 17,000 homicides that occurred in the U.S., only nine of the murders were determined to be motivated by bias.

Some of the provisions contained in HR 1913 include:

• Federalization of crimes that already are being effectively prosecuted by our States and local governments.
• The forcing of law enforcement officials and prosecutors to gather evidence of the offender's thoughts and words, regardless of the criminality of his actions.
• Blurring the line between violent belief, which is constitutionally protected, and violent action, which is not.

"This new law opens the door to suspects being questioned about their thoughts rather than their actions. Are we going to start interrogating people about what they are or were thinking?" asks a New York City detective who opposes the law.

"We already have a hate crime law in our state Penal Code. What are the feds doing getting involved in state crimes?" said the veteran cop on condition of anonymity.

During a discussion of the new law, US Congressman Paul Broun of Georgia voiced his opposition to HR 1913 and explained why he voted against it.

"Regardless of its motivation, I believe that every violent crime is appalling. Furthermore, I believe that all people should be equally protected by law from violence, no matter who they are," said Broun, who is also a licensed physician.

"In addition to posing a litany of constitutional problems, today's legislation alarmingly overturns the cornerstone of equality in our justice system by placing a higher value on one life over another. In no way could I support a bill that more harshly punishes criminals who kill a homosexual, transvestite or transsexual than criminals who kill a police officer, a member of the military, a child, or a senior citizen. I believe that all victims should have equal worth in the eyes of the law," said Rep. Broun.

Rep.Virginia Foxx of North Carolina said that a federal hate law would preempt the Tenth Amendment which delegates most law enforcement to the states. She said the claim that Matt Sheppard was murdered because he was a homosexual was a "hoax;" he was killed, she said as the victim of a robbery. Sheppard's murderers did not know he was gay at the time of the robbery.

Supporters of the law complain that laws for dealing with hate or bias crimes differ from state to state and that this new law will codify the definition of a hate crime. They believe that the federal government will be able to utilize the Local Law Enforcement Hate Crimes Prevention Act of 2009 in order to force local officials to protect gays, minorities and others as "protected groups."

While opponents support the prosecution of criminals to the full extent of the law, they believe the police power is traditionally mandated to the states by the U.S. Constitution. Murder, rape, assault and other felonies are crimes for individual states to adjudicate, according to several police commanders, some of whom said their politically motivated superiors support HR 1913.

"This unconstitutional hate crimes bill also raises the possibility that religious leaders or members of religious groups could become the subject of a criminal investigation focusing on a suspect's religious beliefs, membership in religious organizations and any statements made by a suspect," said Congressman Paul Broun.

"Religious leaders and others who express their constitutionally protected beliefs should not be silenced out of fear of prosecution," he said,

The U.S. Senate has a similar version of the bill and will no doubt vote soon on their own hate crimes legislation.

FamilySecurityMatters.org Contributing Editor Jim Kouri, CPP is currently vice-president of the National Association of Chiefs of Police and a staff writer for the New Media Alliance .