Civil Rights: Lights, Camera, Legislation: Congress Set to Adopt Hate Crimes Bill that May Put Double Jeopardy Protections in Jeopardy

Engage: Volume 10, Issue 1

4 Pages Posted: 29 Dec 2016

See all articles by Gail L. Heriot

Gail L. Heriot

University of San Diego School of Law

Date Written: February 2009

Abstract

School children are taught that the Double Jeopardy Clause of the Constitution guarantees that no person shall “be subject for the same offense to be twice put in jeopardy of life of limb.” They are seldom taught, however, about the dual sovereignty rule, which holds that the Double Jeopardy Clause does not apply when separate sovereign governments prosecute the same defendant. A state cannot oust the federal government from jurisdiction by prosecuting first; similarly the federal government cannot oust the state. This is true even in the event of an acquittal.

Such a rule may (or may not) be tolerable when the number of federal crimes and hence of potential federal prosecutions is small. But when large numbers of crimes are potentially federal crimes, it quickly becomes a “two bites at the apple” rule.

What does this mean for pending hate crimes legislation? The legislation currently pending in Congress this year (2009) defines hate crimes extremely broadly. It is enough that a crime occur “because of” the race, sex, disability, etc. of the victim (or of some other person). But consider: Rapists are seldom indifferent to the sex of their victims. Literally, they are almost always chosen “because of” their sex. A thief might well steal only from the disabled because, in general, the disabled are less able to defend themselves. Again, literally they are selected “because of” their disability. Is it a good idea to have a statute that makes so many traditional state crimes federal crimes also? Are the efforts in the bill to prevent the double jeopardy problem from exploding good enough? Note that “hate crimes” are frequently the most politically sensitive crimes—i.e. crimes where double jeopardy protections are most important.

Keywords: double jeopardy, hate crimes, federal crimes

Suggested Citation

Heriot, Gail L., Civil Rights: Lights, Camera, Legislation: Congress Set to Adopt Hate Crimes Bill that May Put Double Jeopardy Protections in Jeopardy (February 2009). Engage: Volume 10, Issue 1, Available at SSRN: https://ssrn.com/abstract=2891096

Gail L. Heriot (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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