Mimesis Law
21 April 2019

Punish For The Crime they Commit, Not The Hate in Their Hearts

July 27, 2015 (Mimesis Law) — It’s not just a power play, says fellow Fault Liner Cristian Farias. It was righteous.

I mean, there’s this federal hate crimes law. And Dylann Roof obviously committed a hate crime.* And South Carolina doesn’t have a hate crime law. So what else could Loretta Lynch, the fair-minded “daughter of a fourth-generation Baptist minister” (hyperlink removed) do?

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.” (Hyperlink retained, this time)

But of course, it doesn’t follow that because there’s a law under which a prosecution can be brought that the prosecution should be brought. Hell, pretty much everyone can be prosecuted every day. Harvey Silverglate’s Three Felonies a Day doesn’t even touch on state crimes.

But the federal/state tango is delicate, and the intentionally limited (but practically universal) reach of federal police power teaches which should lead the dance. And yes, they can both lead, at least as a legal matter. Farias emphasizes that the crimes are different. They are. It doesn’t matter to the law.

The feds and the states can both prosecute the same person for the same crime. Double jeopardy, that protection against being tried twice for the same crime, doesn’t apply (forget everything you know about language and logic; this is the Constitutional rights of the accused we’re talking about) because the feds and the states are “different sovereigns” which can each do whatever the fuck they want.

Anyhow:

South Carolina is charging Roof with various counts of murder. They could make it a death penalty case, and maybe they will. Officially, there’s no decision yet.

The feds are charging Roof with various hate crimes in which he happened to kill people. They could make it a death penalty case, and maybe they will. Officially, there’s no decision yet.

The feds, that is, find it necessary to charge him with being a bad person who killed people because he’s a bad person. South Carolina is just charging him with killing people. Either way he could end up on death row. Either way, there’s no particular reason to think he’ll ever actually get executed (though it could happen).

The underlying idea of the criminal law – an idea largely ignored by the lawmakers, but still – is that we prosecute and punish people for what they do, not for who they are or what they think. We’re not big on thought crimes as a concept (except for people and thoughts we hate [commies, Nazis, arabs, jews, white folks, black folks, doctor, lawyer, indican chief). And despite the dual sovereignty doctrine, the idea that the feds should sit it out is generally a good one.

This isn’t – at least not yet – one of those jury nullification cases from the 50s or 60s where an all white southern jury acquitted white guys for killing civil rights workers or black activists despite all the evidence. In those cases, at least, you could squint a bit and concede that maybe it was just to try those factually guilty folks for violating the civil rights of the people they killed. And maybe if Roof is acquitted in state court by a jury of Klansmen.

Beyond that, though, is there any particular reason not to sit it out in this case? Other than politics?

Oh, yeah, of course there is.

Because they can.

_____________________________

And see Greenfield, Two Courtrooms at Once.

* Would someone, somewhere, in what’s supposed to be legal commentary, please back off from simply assuming that the allegations and declarations against Roof are true? I know it looks bad for the kid. I’ve seen the photos and read the news stories and followed the press conferences.

But unless and until some of it is proved in a court of law, he’s legally innocent. Completely and totally.   Thane Rosenbaum and the official haters won’t get it, but we shouldn’t be feeding their dishonesty and the public’s stupidity.

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    27 July 2015 at 10:40 am - Reply

    […] Gamso, who makes this point in a response to Cristian Farias’ post embracing the notion that federal hate crimes law has […]