On The Other Hand

Does The Matthew Shepard Act Make Double Jeopardy Possible?


Congress wasn’t going to pass the Matthew Shepard Act by righteousness alone. Nor should it. We’re big fans of (smart) open debate even when we’ve already declared our side. (In case you’re just joining us, we’ve been adamant supporters of adding sexual and gender identity to the list of protected classes.) Which is why we welcome the battle back from conservatives, who hope the Senate will back down from passing the Local Law Enforcement Hate Crimes Prevention Act.

The one argument we’re tired of, however, is the religious one — that somehow punishing criminals for violent acts will target priests who preach against homosexuality. It won’t. If a pastor’s sermon doesn’t call for incitement to violence (a crime by itself), then Father O’Henry has nothing to worry about.

Then there’s the free speech argument: Punishing someone for why they committed a crime violates their First Amendment rights. And of course, the “special victims” argument: Making “protected classes” of victims means criminals are punished more for targeting minorities than, say, straight white men. (Funny how conservatives are advocates of criminals only when it fits their anti-gay agenda.)


But here’s one argument we’re willing to hear: The double jeopardy factor.

The Matthew Shepard Act does not simply add additional punishment to a criminal sentence; it creates a whole new class of crime. Which means a defendant who is acquitted on a murder charge in state court could face a second round of federal charges — for committing a hate crime alone, but for the same act.

Some, like David Freddoso in the National Review, argue this scenario amounts to double jeopardy, and thus violates our constitutional rights against being charged with the same crime twice. He explains: “If someone is acquitted of an alleged hate crime at the state level, this bill allows federal prosecutors to haul him into federal court for the same alleged act, based only on evidence that ‘hate’ motivated the crime that the jury says the defendant didn’t commit. This makes use of a loophole in the constitutional protection from double jeopardy.”

As Rep. James Sensenbrenner (R, Wis.) explained on the House floor: “At the first trial, the person is acquitted of the violent crime, and at the second trial the person is convicted of the hate crime, meaning what the defendant says during the commission of that crime. And that ends up criminalizing free speech, because the actual act of violence the jury determined that the defendant was not guilty, but because of what the defendant said during the commission of the crime aimed at the victim, the person is convicted of saying that. That is where we have the First Amendment slippery slope. And I think if this ever happens, you will find this bill declared to be unconstitutional as a violation of the First Amendment in the blink of an eye.”

It’s a reasonable argument — and one any hate crimes defendant with the cash for a decent legal defense will make on appeal.