Academic journal article American Criminal Law Review

Subverting Symbolism: The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act and Cooperative Federalism

Academic journal article American Criminal Law Review

Subverting Symbolism: The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act and Cooperative Federalism

Article excerpt

INTRODUCTION
  I. CONTEXTUALIZING THE MATTHEW-SHEPARD-JAMES BYRD, JR.
     HATE CRIMES PREVENTION ACT (THE "HCPA")
     A. The Prevalence of Hate Crimes in the United States
     B. Hate Crimes Legislation State-by-State
     C. Pre-Existing Federal Hate Crimes Legislation
        1. Ku Klux Klan Act of 1871
        2. The Civil Rights Act of 1968 (18 U.S.C. [section] 245)
        3. Hate Crimes Statistics Act of 1990
        4. Hate Crime Sentencing Enhancement Act
     D. Contextualizing the Michael Shepard-James Byrd, Jr.
        Hate Crimes Prevention Act ("HCPA ")
        1. The HCPA: Federal Jurisdiction to Prosecute Hate
           Crimes
        2. The HCPA: Provision of Federal Funding to Address
           Hate Crimes
     E. Criticisms of the HCPA
        1. Federalism Concerns
        2. The Role of Symbolism and the HCPA
           a. The Dangers of Symbolic Legislation
           b. The Importance of Enforcing Hate Crimes
              Legislation

  II. SAVING THE HCPA FROM SYMBOLISM" A COOPERATIVE
      FEDERALISM MODEL
      A. The Concept of Cooperative Federalism
      B. Cooperative Federalism and the Environmental Protection
         Measures
      C. Cooperative Federalism is an Appropriate Model for
         Crime Prevention
         1. Constitutional Support for Cooperative Federalism
            Programs
         2. Benefits of Joint Federal-State Efforts in the Context
            of Criminal Prosecutions

  III. ACHIEVING BALANCE: A FUNCTIONAL MODEL FOR PROSECUTING
       HATE CRIMES PURSUANT TO THE HCPA
       A. Creating a Federal-State Task Force to Prosecute Crimes
          Under the HCPA
          1. The National Church Arson Task Force
          2. Safe Streets Initiative
       B. Allowing State Prosecutors to Prosecute in Federal Court
          1. Proposal to Appoint Special Assistant United States
             Attorneys to Prosecute HCPA Cases
          2. The Importance of Maintaining a Role for Federal
             Prosecutors

  IV. CONCLUSION

Hate crimes are a form of domestic terrorism. They send the poisonous message that some Americans deserve to be victimized solely because of who they are. Like other acts of terrorism, hate crimes have an impact far greater than the impact on the individual victims. They are crimes against entire communities, against the whole nation, and against the fundamental ideals on which America was founded. They are a violation of all our country stands for. (1)

--Senator Edward Kennedy

And that's why, through this law, we will strengthen the protections against crimes based on the color of your skin, the faith in your heart, or the place of your birth. We will finally add Federal protections against crimes based on gender, disability, gender identity, or sexual orientation. And prosecutors will have new tools to work with States in order to prosecute to the fullest those who would perpetrate such crimes, because no one in America should ever be afraid to walk down the street holding the hands of the person they love. No one in America should be forced to look over their shoulder because of who they are or because they live with a disability. (2)

--President Barack Obama

INTRODUCTION

On April 29, 2010, three men in New Mexico videotaped themselves burning a swastika onto the arm of Vincent Kee, a mentally disabled man of Native American decent.3 Although the three defendants contend the act was consensual, the District Attorney charged them with various state offenses including kidnapping and battery.4 This case, however, is distinct from other violent crimes because a federal grand jury has also indicted the men involved under the Matthew Shepard-James Byrd Hate Crime Prevention Act ("HCPA"), a law President Obama signed on October 29, 2009. (5) Prior to the enactment of the HCPA, the federal government would have lacked jurisdiction to prosecute the defendants in this case or similar cases involving hate crimes. …

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