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Michael F. Pabian

excerpted from:  Michael F. Pabian, The Hate Crimes Prevention Act: Political Symbol or Prosecutorial Tool?, 48 NO 2 Criminal Law Bulletin 4 (Spring 2012) (121 Footnotes Omitted) (Student paper).


The passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act in 2009 represented the culmination of a twelve year struggle over the enactment os legislation. Proponents of the statute reacted with great enthusiasm. Joe Solmonese, President of the Human Rights Campaign, declared the Act a historic milestone in the inevitable march towards equality. The news media expressed similar sentiments. A Washington Post columnist called the legislation a watershed moment in the history of our nation and Congress' first acknowledgment of the fact that gay people are citizens. President Obama also weighed in, asserting that the passage of the Act isn't just about our laws; this is about who we are as a people. This is about whether we value one another, whether we embrace our differences rather than allowing them to become a source of animus.

As illustrated by these strong endorsements, Congress' enactment of federal hate crimes legislation was important to many Americans. It remains unclear, however, whether the Hate Crimes Prevention Act can fulfill this great promise. While there can be little doubt concerning the Act's power as a social symbol, the extent to which it will be utilized remains to be seen. Will the Hate Crimes Prevention Act lead to federal prosecutions and convictions, or is it merely a piece of feel-good legislation which has already served its purpose? In order for the Act to be used by federal prosecutors, it must survive constitutional scrutiny. Prosecutors must also decide that bringing cases under the Act is worthwhile even though the conduct it prohibits has traditionally been addressed by state and local officials.

This article argues that the Act will likely fail to acquire any significance beyond its power as a political symbol.

Part II traces the long political journey leading to the passage of the Act in 2009.

Part III describes the effects of the Act.

Part IV analyzes the constitutionality of the Act under both the Thirteenth Amendment and the Commerce Clause, concluding that the Act is likely unconstitutional in some of its applications.

Finally, Part V suggests that there is little evidence that federal prosecution of hate crimes is preferable to state or local prosecution.

* * *

The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act raises serious constitutional problems, at least in some of its applications. Additionally, the professed goal of the statute, namely ensuring that hate crimes are adequately prosecuted, can be accomplished through more conservative legislation allowing the federal government to provide support to state and local prosecutors. For these reasons, it seems unlikely that federal prosecutors will have a strong incentive to bring cases under the Act. The legacy of the Act will thus be defined by the grand proclamations that surrounded its passage rather than its significance as a prosecutorial tool.

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