The federal indictment against Dylann Roof isn’t a libertarian outrage
July 24, 2015 (Mimesis Law) — Mass shootings and police brutality bring out the prosecutor in all of us. It stands to reason that little if any criticism is leveled against the Department of Justice when it decides to intervene in high-profile, though purely local, criminal cases. When DOJ decided to monitor and investigate from afar the killings of Trayvon Martin and Michael Brown — just as the judicial process ran its course at the state level — there was little controversy.
In the aftermath of the racial massacre by Dylann Roof in Charleston, South Carolina, the prosecutor in all of us came out again. Hardly anyone raised an eyebrow when Attorney General Loretta Lynch announced that a federal grand jury had returned a 33-count indictment against the shooter, charging him with a litany of hate crimes and firearm charges for the killing of nine black churchgoers at a historic congregation. All of this, in addition to the state indictment charging Roof with nine counts of murder and three counts of attempted murder for the June 17 massacre at the Emanuel A.M.E. Church in Charleston.
What’s striking about DOJ’s involvement this time is its seeming impatience. If in the Martin and Brown cases federal prosecutors worked quietly and did not interfere with the state cases as they ran their course, here they came out with guns blazing. And reasonably, one could say that Lynch’s move to impanel a grand jury and seek charges a mere two weeks after South Carolina did the same is an affront to a state’s prerogative to seek justice in its own terms. Federalism run amok.
The Cato Institute’s Jonathan Blanks did exactly that and more. Stopping short of praising state authorities for acting “quickly,” “effectively,” “professionally,” and “competently” in Roof’s capture and subsequent murder charges, he mounts a libertarian attack on DOJ, calling the prosecution “duplicative” and taking umbrage for the waste of “funds and resources.”
“Today’s indictment is federal meddling in a case the state already has under control,” Blanks said.
That’s a reasonable critique if one truly believes South Carolina has got the reins of the case. But then Blanks goes on to accuse Lynch of opportunism, premised on the timing of the events and the jurisdictional power of her office: “By not waiting for the outcome of the state’s prosecution, the timing strongly suggests the DOJ wants to assume jurisdiction for Roof’s prosecution. Thus, this indictment is an unabashed political move.”
The federal indictment and Lynch’s accompanying statutory declaration tell a different story. Briefly but with enough particularity to set forth the facts justifying the true bill, the charging document lays out the basics of the federal case against Roof. To be sure, DOJ can’t prosecute for murder, but the Reconstruction Amendments granted Congress the authority to vest it with power to prosecute for racially motivated crimes — like a killing spree at one of the oldest black churches in the South, a sanctuary for former slaves seeking actual and spiritual refuge.
“The parishioners had Bibles,” Lynch said when announcing the charges. “Dylann Roof has his .45-caliber Glock pistol and eight magazines loaded with hollow-point bullets.”
But Roof is also alleged to have had the intent to kill, and to kill black people specifically. South Carolina, perhaps as a result of its own disgraceful past, lacks an analog law to punish such blatant acts of racism, so the federal government has historically filled in the statutory gaps — post-Reconstruction, during the Civil Rights era, and in the Obama years.
One of the laws under which Roof was charged, the Matthew Shepard Act of 2009, is notable for its passage under the Thirteenth Amendment’s “authority to eradicate badges and incidents of slavery,” which effectively eliminates the need to prove the classic jurisdictional “hook” to obtain a conviction. In other words, DOJ need only prove that the act of violence resulting in death was committed on account of race. No reason to engage in esoteric explorations of interstate commerce and the like, which DOJ will need to prove as it seeks to convict Roof for the remainder firearm and religious obstruction charges.
But another feature of the 2009 law was providing funding for states investigating similar crimes, and to establish cooperation between the FBI and local authorities seeking to prosecute acts of violence on account of race and other protected categories. By virtue of this state-federal partnership, it is not entirely correct to state that DOJ is usurping state authority by taking up one of these prosecutions. Lynch’s own certification at the end of the indictment, as required by law, makes clear she is proceeding with the Roof case because it’s “in the public interest” and “necessary to secure substantial justice.”
Blanks may see this as a naked political move. But after a string of civil-rights cases where DOJ has rightfully stayed its hand, it’s far likelier that Lynch — the daughter of a fourth-generation Baptist minister — is proceeding precisely as the law commands for these kinds of atrocities.