Posts Tagged ‘Fifth Amendment’

Upset by this week’s Miranda decision? Get over it.

Wednesday, June 2nd, 2010

miranda

So yesterday, the Supreme Court ruled 5-4 in Berghuis v. Thompkins (opinion here) that you need to actually tell the cops that you’re invoking your right to remain silent, if you want them to stop asking questions (or at least not be able to use your subsequent responses against you).  Merely remaining silent isn’t the same as invoking the right.

This, of course, got all kinds of clever responses in the media, along the lines of “to invoke your right to remain silent, speak up!”  Very witty, we agree.

But we have to say, this decision is not that big a deal.

Our immediate reaction on reading the slip opinion, right when it came out, was “yeah, that sounds about right.”

We headed over to court for a case later that morning, and while we were sitting in chambers with some other defense lawyers and prosecutors, we summed up the Court’s decision.  The immediate reaction of literally everyone in the room was “yeah, that sounds about right.”  The judge’s law secretary added “isn’t that already how we do it here in New York?”

Later in the day, we discussed the case with some defense types who are fairly well-known for their pit-bull approach to the law.  Their immediate reaction was “yeah, that sounds about right.”

-=-=-=-=-

Here’s how we see it, in a nutshell: (more…)

Holder’s Wrong. Terrorism’s No Reason to Relax Miranda

Monday, May 10th, 2010

terrorist lineup

The Washington Post reports that the Obama administration wants Congress to change the Miranda rule, so that in terrorism cases law enforcement will be able to interrogate longer before having to give suspected terrorists their Miranda warnings.

This is stupid, and unnecessary.

The general idea is to expand the “public safety exception” to the rule. The way that exception works, cops don’t have to Mirandize someone when there’s an immediate danger, and they’re trying to get information so they can deal with it right away. The second the threat stops being imminent, the exception no longer applies.

Attorney General Eric Holder now says that this isn’t enough in terrorism cases, because it doesn’t give investigators enough leeway. Last week’s Times Square bombing suspect was questioned for three or four whole hours before being Mirandized, and last Christmas’ underwear bomber was questioned for (egads!) nearly fifty minutes before the warnings were given. And these delays, Holder says, are already “stretching the traditional limits of how long suspects may be questioned.”

The Obama administration wants to keep terrorism suspects in the civilian criminal justice system, rather than putting them in the military system or designating them as enemy combatants. The Miranda rule is a cornerstone of the civilian criminal justice system, precluding the use at trial of a defendant’s statements made in response to questioning while in custody, unless first informed of the right to remain silent and to a lawyer, and then waiving those rights before speaking. So if the administration is going to keep terrorists in the civilian system, but still wants to get useful intelligence, they’re going to need time to interrogate first before the defendant gets Mirandized and shuts up. That’s what Holder’s saying, anyway.

But that’s complete bullshit, and anyone with any actual experience in the criminal justice system knows it.

First of all, nobody — and we mean nobody — shuts up just because (more…)

New 14-Day Rule in Miranda-Edwards Cases

Wednesday, February 24th, 2010

 

The Supreme Court heard a very important argument this week in the case of Maryland v. Shatzer. It was one of those situations where the oral argument makes a huge difference in the outcome of the case. We read the briefs earlier this month, and remarked to colleagues that both sides’ arguments seemed eminently reasonable. So reasonable that we couldn’t form a strong opinion either way.

But the oral arguments convinced us thoroughly: Both sides are stupid.

So we wrote back on October 8, when this case was argued. This morning, the Supreme Court issued its decision.

While Shatzer was in prison on another conviction, allegations arose that he’d molested his son. A detective went to the prison to interrogate him. Shatzer invoked his Miranda right to counsel, and the detective ended the interrogation and left. Shatzer went back into general population, and the investigation was closed. Three years later, another detective began investigating again, went to the prison to interrogate Shatzer, and this time Shatzer waived his Miranda rights and incriminated himself. The Maryland Court of Appeals said his statements should have been suppressed, because there was no break in custody between his invocation of his right to counsel and his subsequent interrogation, because he’d stayed in prison the whole time.

At oral argument, Maryland proposed an idiotic rule that any break in custody, no matter how short, would end the Edwards presumption that the invoked rights were still invoked. That would just allow catch-and-release until the suspect broke down and waived his rights.

Shatzer’s position was even more idiotic — that invoking the right to counsel in one case now, counts as an invocation of the right to counsel in all future cases he may ever have, even in other jurisdictions decades later.

We suggested a simple rule:

1) If a suspect was in custody, was read his Miranda rights, and invoked his Fifth Amendment right to have a lawyer present during questioning…

2) And if there was a break in custody, so that an objectively reasonable person would have felt free to leave his questioners…

3) Then there is a rebuttable presumption that his invoked right to counsel continues to be invoked with respect to any subsequent questioning about the same underlying allegations.

4) The state can rebut this presumption with facts that demonstrate, by clear and convincing evidence, that the suspect no longer desired the presence of counsel during questioning. (This will necessarily be extremely rare, though not at all inconceivable.)

The rule could be streamlined even further, by deleting the phrase “there is a rebuttable presumption that” from #3, and deleting #4 altogether.
This rule provides all the protections that defendants, law enforcement and the courts require. At the same time, it avoids the absurdities of the existing bright-line rule, and of the more extreme bright-line rules proposed by the parties in this case

In today’s decision, the Supreme Court agreed with us that the positions taken by both sides are absurd. But they didn’t impose a new rule. Instead, they merely focused on what counts as “uninterrupted Miranda custody” for the purposes of Edwards.

First, the Court imposed a bright-line rule, in the hopes of preventing catch-and-release tactics. They said that, once a person has been released from police custody, a period of 14 days must elapse before he can be said to have waived his Miranda rights voluntarily. So if a suspect invokes his rights, ending the interrogation, and he is released from custody, he cannot be interrogated again for 14 days. Once that fortnight has passed, the Court felt that enough time had passed for the suspect to shake off the coercive effects of custody and get back to normal life.

That’s a bright-line rule, and so that’s going to create injustices on either side of the line for suspects who are more or less able to shake off the coercive effects of custody. Which can be truly traumatizing.

The Court has always liked bright-line rules for police conduct, of course, because it leaves less room for police judgment or discretion, which makes it easier for the police to know what they’re allowed to do. The thinking goes that the less gray area there is, the less likely police will be to cross the line, and the more likely individuals will not have their rights violated. That may be true so far as it goes, but only at the cost of new injustice for those whose individual circumstances would move the line. What’s reasonable for me may not be reasonable for you.

Scalia tries to avoid this interpretation by reassuring us that (more…)

Supreme Court Smackdown: Sixth Circuit Gets Lectured on Double Jeopardy

Monday, June 1st, 2009

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In a unanimous decision today, the Supreme Court held that the Double Jeopardy Clause doesn’t prevent Ohio from re-litigating a capital defendant’s mental retardation, after the state’s highest court had opined that he had “mild to borderline” mental retardation.

The case is unique, in that the defendant was sentenced to death before the Supreme Court’s 2002 decision in Atkins v. Virginia, 536 U.S. 304, which outlawed execution of mentally retarded offenders. So the mental capacity of the defendant was taken into consideration at sentencing, but was held to be outweighed by the horrific facts of the crime (the aggravated murder, kidnapping and attempted rape of a ten-year-old boy). Evidence of borderline mental retardation was presented, but no factual finding was reached as to his capacity. On appeal, the Ohio Supreme Court upheld the conviction, and made a passing observation that the defendant had mild to borderline mental retardation, but agreed that its mitigating value was outweighed by the crime.

But then the Supreme Court rendered its Eighth Amendment decision in Atkins, so the trial court ordered a new hearing to make the factual finding of the defendant’s mental capacity, for the purpose of determining whether his death sentence should be commuted to a life sentence.

The defendant, Michael Bies, challenged that on habeas, and the federal District Court said the new hearing shouldn’t be held, and the defendant’s death sentence should be vacated, because the Ohio high court’s observation amounted to a finding of fact that Bies was retarded.

The state appealed that order, but the Sixth Circuit upheld it, holding that the Ohio high court had made a definitive determination of fact, and that determination entitled Bies to a life sentence. Any new hearing would violate Double Jeopardy, by putting Bies at risk of a death sentence again.

Writing for the unanimous Supreme Court today, in Bobby v. Bies, Justice Ginsburg stated that the Sixth Circuit didn’t understand what Double Jeopardy means. The Circuit “fundamentally misperceived the application of the Double Jeopardy Clause and its issue preclusion (collateral estoppel) component.”

Bies was not “twice put in jeopardy,” wrote Ginsburg. Ohio took no action to seek further prosecution or punishment. The new efforts were entirely of the defendant’s doing — rather than serial prosecutions, we have “serial efforts by the defendant to vacate his capital sentence.”

Also, the issues to be litigated aren’t identical. The first time around, the issue was whether his mental capacity mitigated the criminal offense. This time around, the issue is whether he is mentally retarded for the purposes of Atkins, which has not yet been decided.

Also, the Sixth Circuit failed to understand that “issue preclusion” is not a claim that the loser gets to bring. It’s only a claim that winners get to bring, so they don’t have to keep litigating determinations that were necessary to the outcome of a prior proceeding. Here, the Ohio high court did recognize Bies’ mental capacity as a mitigating factor, but that observation was not essential to the death sentence he got — it was the opposite, something that “cut against” it. “Issue preclusion, in short,” wrote Ginsburg, “does not transform final judgment losers, in civil or criminal proceedings, into partially prevailing parties.”

So the upshot is that “the federal courts’ intervention in this case derailed a state trial court proceeding designed to determine whether Bies has a successful Atkins claim.” And the state hearing is exactly what the Supreme Court intended to happen when it wrote Atkins.

* * * * *

Interestingly, in the briefs and arguments, the defense made a point of showing that Ohio wasn’t making much of an argument on AEDPA grounds (the Antiterrorism and Effective Death Penalty Act of 1996). The Supreme Court dismissed the entire issue in a footnote:

This case, we note is governed by the [AEDPA]. Bies plainly fails to qualify for relief under that Act: The Ohio courts’ decisions were not “contrary to, or . . . an unreasonable application of, clearly established Federal law,” 28 U.S.C. § 2254(d)(1), and were not “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” §2254(d)(2).

* * * * *

Although it may seem at first glance that the defendant got a raw deal here — he has to re-litigate an issue he already thought he’d prevailed on — the Court’s reasoning is sound. Double Jeopardy happens when the same sovereign tries to get a second chance to punish you for the same offense.

Here, the state wasn’t trying to do that at all. All Ohio was trying to do was determine whether new caselaw permitted it to let the original punishment stand, or whether the new law required it to reduce the original punishment.

You can see how easy it is to make the Sixth Circuit’s error, of course. It appeared as though the Ohio high court had made a factual determination that, by operation of the new caselaw, automatically required commutation of the death sentence here. So ordering the new hearing looks like the state trying to get a second shot at it. But really, as the Court pointed out, the issues are not the same. There never was any finding of fact that the defendant actually was mentally retarded for Eighth Amendment purposes, and that was precisely what needed to happen.

* * * * *

And Ginsburg is the last person on the Supreme Court to rule otherwise, if there was any chance that the defendant ought to have prevailed.

We recall a case we worked on back in 1995 with the famed Carter Phillips. We worked through our holiday with him, well into the night, trying to get the Supreme Court to commute the death sentence of a mentally retarded convict. But this was pre-Atkins, and the Court rejected our application. Only Justice Stevens and Justice Ginsburg would have granted it. The case was Correll v. Jabe, No. 95-7283, and Mr. Correll became the last mentally retarded person to be executed in the Commonwealth of Virginia. Justice was not done then, and the case has since become the stuff of plays and campaigns, but had Ginsburg had her way then, we might now be discussing the Correll rule instead of the Atkins rule. So it would be dishonest to claim that she is callous to this defendant’s situation.

All in all, this is a good opinion. The clarification of what Double Jeopardy and issue preclusion mean was absolutely necessary. And while Mr. Bies’ situation cannot worsen, it actually stands a good chance of improving after his upcoming hearing.

Mandatory DNA Sampling Constitutional. Expect Ruling to be Upheld.

Friday, May 29th, 2009

dna.png

In a decision sure to be fought before the 9th Circuit, a federal judge in the Eastern District of California yesterday upheld mandatory DNA collection from people merely arrested for federal felonies, regardless of the nature of the crime charged.

Obviously, this raises eyebrows in certain circles. Taking DNA from people who haven’t even been convicted yet? Taking DNA from people who aren’t suspected of committing crimes where DNA would even be relevant? Doesn’t this violate basic principles of our jurisprudence?

Well… and this is a defense attorney talking here… no.

The case is U.S. v. Pool, decided by Judge Gregory G. Hollows. The defendant was charged with possession of child porn, and was released on bond. One of the conditions of release was that he provide a DNA sample.

This requirement was mandatory under two federal laws: the Bail Reform Act, 18 U.S.C. § 3142(b) and (c)(1)(A), which mandates it for pre-trial release; and the DNA Fingerprinting Act of 2005, 42 U.S.C. § 14135a, which mandates it for everyone arrested on a federal felony charge.

DNA is usually collected by dabbing a cotton swab in the person’s mouth or something similar. Rarely, it is collected by a blood test. The DNA is to be used solely by law enforcement for identification purposes.

Pool argued that this warrantless DNA sampling violates the Fourth Amendment. It’s a search, there’s no warrant, and there’s no special need for the testing for nonviolent arrestees.

Judge Hollows rejected that argument, stating that every Circuit to consider the issue has held there to be no Fourth Amendment violation here, and that the criterion is not “special need” but rather the “totality of the circumstances.” The reasonableness “is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy, and on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”

Pool argued that pre-conviction sampling is improper, based on the Supreme Court cases Ferguson v. City of Charleston, 532 U.S. 67 (2001)(unconstitutional search for law enforcement to use hospital’s diagnostic test of pregnant patient to obtain evidence of drug use), and City of Indianapolis v. Edmond, 531 U.S. 32 (2000)(vehicle checkpoint unconstitutional when primary purpose was to detect evidence of drug trafficking). Those cases relied on the “special need” analysis he suggested.

Judge Hollows rejected that as well, as those searches involved police fishing for evidence, before anyone was formally charged with a crime. The statutes at issue here subject people to DNA testing after a finding of probable cause by a judge or grand jury. After someone’s been indicted, courts can impose all kinds of restrictions on liberty. The situation is much more like that of people who have been convicted, than of people who have not yet been charged with anything, and so the “totality of the circumstances” test is more appropriate.

For more than 45 years, it’s been well-settled that someone who’s been arrested has a diminished expectation of privacy in his own identity. He can be compelled to give fingerprints, have his mug shot taken, and give ID information. DNA is no different than fingerprints — a unique identifier that helps law enforcement find the right suspect, and eliminate the wrong suspect. In fact, DNA is more precise than photos or fingerprints, so the government interest in obtaining it is even stronger.

Meanwhile, the invasiveness is minimal. Even blood tests are considered “commonplace, safe, and do not constitute an unduly extensive imposition on an individual’s privacy and bodily integrity.” Oral swabs are considered no more physically invasive than taking fingerprints.

The judge also rejected arguments that DNA evidence, once taken, might possibly be stolen and put to an impermissible use. That risk applies to everything, and there are criminal penalties to deter it. Just because someone might break the law doesn’t mean the setup is improper.

Judge Hollows pointed out that all the same concerns being raised about DNA were raised in the early part of the 20th Century with respect to fingerprints. And since at least 1932 it’s been understood that the public interest far outweighs the minimal burden to the individual being fingerprinted. The same reasons that justify post-arrest fingerprinting without a warrant justify post-arrest DNA sampling without a warrant.

Pool also argued that this violates Fifth Amendment procedural due process, because it’s mandatory, and thus precludes an opportunity to be heard. But that only applies if the defendant’s privacy rights outweigh the government interest, and it’s the other way around here. Pool argued that there is a risk of erroneous deprivation of his privacy interest, for arrestees who are not ultimately convicted. But the system is set up to expunge DNA records if the person is exonerated or the charges are dismissed. So the risks are minimal, and the government interests are compelling, and that means there is no procedural due process problem.

Pool also argued that this violates the Eighth Amendment protection against excessive bail. Bail conditions have to be proportionate to the perceived government need requiring the condition. But the Supreme Court case that set this rule, U.S. v. Salerno, 481 U.S. 739 (1987), specifically rejected any idea that this “categorically prohibits the government from pursuing other admittedly compelling interests through regulation of pretrial release.” This being nothing more than a booking procedure, and not comparable to conditions of release that actually have to do with the concerns arising from letting someone out on bail, there’s no reason to consider it excessive.

Pool also argued that the statutes violate the Separation of Powers, as Congress has intruded on judicial decision-making in the setting of bail conditions. But here, Congress didn’t direct any judicial findings. It merely directs what the judge needs to do after a certain finding has been made. That’s what Congress is supposed to do. There’s no problem there.

Poole finally argued that this is an unconstitutional extension of power, because the Commerce Clause doesn’t authorize DNA sampling. But the Commerce Clause lets the government make conduct a federal crime. The resulting government powers, such as incarceration and terms of release, have nothing to do with it, and don’t need to be independently authorized under the Commerce Clause.

* * * * *

What to make of this?

Pool’s arguments stem from a presumption that a person out on bail is more like a pre-arrest suspect. Judge Hollows’ decision stems from the opposite conclusion, that a person out on bail is more like a person on post-conviction supervised release. Any arguments before the 9th Circuit will have to focus on which it is, and we are inclined to believe that the Circuit will side with Judge Hollows here.

Central to the distinction is the fact that there has already been a judicial determination here, separating the defendant from the class of unarrested individuals. Either a judge or a jury has found that it is more likely than not that a federal felony was committed, and that this person did it. Once that has happened, a person’s rights are substantially changed. Society has an interest in ensuring that they come back to court to be judged. Society has an interest in ensuring that they don’t cause more harm in the meantime. These interests outweigh a defendant’s interests in liberty and property, to varying degree depending on the individual. That’s why we have bail and bail conditions.

What is odd, however, is that Congress made DNA sampling a mandatory bail condition, when it has nothing to do with pre-trial release.

Judge Hollows correctly points out that, conceptually, DNA sampling is no more invasive than fingerprinting, and is used for the same purposes. It’s a booking procedure, not a release consideration. Congress could just as easily have made DNA sampling a mandatory part of post-arrest processing, along with the mug shot and fingerprints. It would have been just as constitutionally sound.

By calling it something that it’s not, Congress subjected DNA sampling to this exact challenge.

Now, the ACLU differs with us, and calls the ruling “an incredible threat to civil liberties.”

“We think this ruling is incorrect,” ACLU attorney Michael Risher told reporters. “It ignores the presumption of innocence and it does not pay enough attention to the protections of the Fourth Amendment.” He also opined that police now have an incentive to make pretext arrests, just to get people’s DNA to help them solve crimes. How this changes things from the already-existing incentive to make pretext arrests to get fingerprints is unclear to this defense attorney. And anyway, police don’t need to arrest someone to get DNA or fingerprints — they can be collected by pretext in any number of ways, without a warrant, and often are.

With respect to the Fourth Amendment, what is clear here is that this is not a search for evidence. The crime has already been charged. It’s very clearly an administrative tool for establishing the identity of the defendant. Evidentiary consequences are merely hypothetical, if the person should somehow commit a violent crime in the future and leave behind DNA that gets compared to the database. That’s no different from mug shots, and unlike mug shots (where the chances of a false positive are unreasonably and embarrassingly high, given their variety and the innate unreliability of eyewitness recognition) DNA has an insignificant risk of identifying the wrong person. Mug shots aren’t a Fourth Amendment issue, neither are fingerprints, and neither is DNA, really.

* * * * *

One issue, however, is when the DNA is being taken for the purpose of gathering evidence, in the investigation of a crime.

That’s not the case here, and it’s sort of off point, but should a warrant even be involved then?

Well, isn’t it a Fifth Amendment violation then? You’re making someone incriminate himself against his will, right?

Wrong. Self-incrimination doesn’t enter into it, because what’s important there, the underlying policy of the right, is that we don’t want the government overriding people’s free will, and making them convict themselves out of their own mouths. We don’t want another Star Chamber. We don’t want the government using its overwhelming power to extort unwilling confessions, whether by thumbscrews, lead pipes, or simple custodial interrogation.

But taking blood samples has been held not to involve the right against compelled self-incrimination. Nobody’s being forced to say “I did it.” All they are being forced to do is provide physical evidence. There is no free will involved in the creation of that physical evidence — it exists whether the person wants to hand it over or not — but there is free will involved in the creation of confessions and incriminating statements.

But that brings us back to the Fourth Amendment. If someone is being compelled to give a swab or blood sample, then the government is seizing pre-existing evidence just as if they were seizing drugs from someone’s home. So shouldn’t a warrant be required after all?

Yes it should. But that’s only when the evidence is being sought as evidence. Constitutional rights really do depend on what’s going on. An administrative requirement is not the same thing as a criminal investigation. A DNA sample for administrative ID purposes is not the same thing as one taken to identify a potential suspect.

That’s the big difference here. And even given the 9th Circuit’s pro-defendant tendencies from time to time, we have a hard time predicting anything but an affirmation of Judge Hollows’ decision when this comes up on appeal.

Nat Hentoff Wrong on Rights? Say It Ain’t So!

Monday, May 11th, 2009

The clip above is from a speech Nat Hentoff gave a little while ago, summarizing some of the problems he has with hate crime legislation in general, and with the bill currently being rammed through Congress. The day after he gave that speech, we wrote in more detail about our own concerns with the law.

Although we do not like hate crimes any more than Mr. Hentoff does, we differ with him in that we don’t think they’re per se unconstitutional or inconsistent with American jurisprudence.

Hate crime laws stink because they fail to distinguish between criminal conduct and that which is merely nasty. They take something offensive, and call it an offense. That’s not what criminal law is for. The purpose of criminal law is to identify those acts that are not merely unpleasant, but which are so dangerous to society that they call out for the State to impose its might on the individual and punish him by taking away his life, liberty or property.

Now, there is a PC echo chamber that has a disproportionate voice in today’s government, and in that chamber “hate” really is seen as something requiring extra punishment. Commiting a crime with hate required more punishment than if you committed the same crime for some other reason. But outside of that echo chamber, the mainstream culture just doesn’t see a distasteful motive as a justification for extra punishment.

Hate crime laws also stink because they are inherently un-American. They’re something you’d more expect to see in continental Europe, where state dominion over the individual has been the norm since time out of mind, and there are fewer protections for offensive thoughts. Hate crimes are the stuff of the horror show that England has lately become, as London’s Mayor Boris Johnson writes today, complaining of an England with “its addiction to political correctness — where people are increasingly confused and panic-stricken about what they can say and what is forbidden, a culture where a police officer can seriously think he is right to arrest a protester for calling a police horse ‘gay.’ [England’s] courts and tribunals are clogged with people claiming to have suffered insults of one kind or another, and a country once famous for free speech is now hysterically and expensively sensitive to anything that could be taken as a slight.” That is not the direction in which Americans tend to see themselves heading. Off campus, America simply is not a place where the ASBO could exist. And so it is not a place where hate crimes ought to exist.

That doesn’t mean such laws are necessarily inconsistent with the underlying principles of how we make criminal laws in general. They may not fit with American sensibilities, but they don’t violate our jurisprudence. As we wrote last time, the general idea of hate crimes is simply to add a new level of mens rea. It’s not only doable, it’s something that we’ve done before.

Today, Mr. Hentoff published another piece on the upcoming hate-crimes law, spelling out why he thinks it is unconstitutional and not merely a bad idea. It “violates all these constitutional provisions,” he says: the First Amendment, equal protection of the laws under the Fourteenth Amendment, and the double jeopardy clause of the Fifth Amendment.

We do think the bill, as written, is so vague that is must be voided by the Rule of Lenity. And we do think that, as written, it could well have unintended consequences, and create far more injustice than it’s supposed to prevent.

But unconstitutional? We hate to say this, but we think Mr. Hentoff… we think he… (we can’t believe we’re saying this about one of our intellectual idols)… we think Mr. Hentoff has mischaracterized the rights and protections of the Constitution.

How does it violate the First Amendment? Hentoff acknowledges that the bill explicitly says that it isn’t to be read so as to “prohibit any expressive conduct protected from legal prohibition” or speech “protected by the free speech or free exercise clauses in the First Amendment.” But he alludes to 18 U.S.C. § 2(a), which makes you punishable as a principal if you merely “abet, counsel, command or induce” a crime. Speech that induces a hate crime would make you guilty of the hate crime, and so free-speech protections would be violated.

This point was raised in 2007, the last time this bill was considered, when Democratic Rep. Artur Davis said that the law could conceivably be used to prosecute a pastor who had preached that homosexuality is a sin, if it induced someone else to commit violence against a gay person.

There are two big problems here. First of all, the First Amendment protection of free speech is not absolute, and Hentoff of all people should know this. There is always a balancing of the right to free expression against the harm to society that such expression may cause. You don’t have a free-speech right to shout that you have a bomb while standing in line at an airport. You don’t have a free-speech right to offer to sell crack to an undercover. When speech makes out an otherwise criminal act, you’re going to face jail for having said those words. And the First Amendment won’t protect you.

The other problem is that 18 U.S.C. § 2 does not impose criminal liability for unexpected consequences. A pastor who speaks about the Bible to his congregation isn’t going to be liable for subsequent acts of a deviant member of his flock. That’s not the same as a similar authority figure instructing an unstable young man that God wants him to kill gay people. There’s an element of willfulness or recklessness that’s required. And if you willfully said something to induce an act of violence, then it is not speech that the First Amendment protects.

How does this hate crimes bill violate the Fourteenth Amendment? Hentoff says it violates equal protection, not in the way it’s written, but in the way it will be enforced. A white person targeting black people will be punished for the hate crime, but a black person targeting whites won’t be.

That may make intuitive sense, as the law was originally conceived to battle discrimination against minorities. And prosecutors may choose not to apply it if the victim is a white male. That has happened before, as Hentoff points out. A gang in Colorado had an initiation ritual of raping a white woman, and the prosecutor in Boulder opted not to charge a hate crime there.

Nevertheless, the law itself, as written, does not violate equal protection. Yes, prosecutors will (and must) always have the discretion to choose whether to bring a charge or not in a given case. And it is entirely likely that a black guy who punches someone in the nose just because they’re white may not be charged with a hate crime, even though it clearly fits the bill, because of other factors going through the prosecutor’s head — it might not be politically savvy to further penalize someone who (to the paternalistic PC) already had to suffer the discrimination and indignity that made him act out like this. Or it just might not feel right.

But then again, this bill, as amended, is now written very broadly. It casts a much wider net than mere black vs. white. In addition to race, it considers violence committed because of national origin, religion, sex, sexual preference and disability. Everyone is a potential victim of a hate crime now. There are going to be plenty of opportunities to charge members of “victim classes” for hate crimes when they attack members of other victim classes. A disparate effect has yet to occur, and there’s good reason to believe that it never will.

And how does the bill violate double jeopardy? Hentoff is concerned that someone could be charged with an assault in state court, and be found not guilty, only to find himself haled into federal court to face a new prosecution for the same act under the federal hate crime law.

Unfortunately, this is not a double jeopardy problem. It is not unconstitutional for the feds to prosecute someone for a federal crime after he’s already gone through a prosecution for the same act in state court. Double jeopardy does not apply to prosecutions brought by different sovereigns. Each state is a separate sovereign, in addition to the federal government. If you stand in Manhattan and shoot someone on the other side of the Hudson in New Jersey, both states are allowed to prosecute you for it. Some states have extra protections for the individual here — New York won’t prosecute someone after the feds did — but the feds are not so constrained.

And the feds already do this kind of thing routinely with gun laws. If you committed certain crimes with a gun, you can be prosecuted in state court for the crime, and then afterwards get prosecuted in federal court for possessing the gun at the time. These cases are extremely straightforward — either you possessed the gun or you didn’t — and they often go to trial, because of mandatory sentencing, so young federal prosecutors tend to cut their teeth on this stuff. It’s routine, and it does not at all violate double jeopardy.

* * * * *

Hentoff ends his piece today by urging President Obama, before signing the bill into law, to refresh his understanding of the Constitution. He suggests that, as the “former senior lecturer in that document at the University of Chicago, [Obama] should at least take it with him on Air Force One, where there are fewer necessary distractions, and familiarize himself with what the Constitution actually says.”

We love Nat Hentoff. We idolize the man. We agree that hate crime laws have no place in this country. But we think he ought to take his own advice and re-familiarize himself with what the Constitution does and does not protect.