• Michael Hughes is a second year day student and the Secretary of the Federalist Society.

        It seems that these modern times have brought about nothing less than a direct assault on the foundation and principle instrument of the polity, the individual. The importance of the individual in an open and consensual government is paramount. This nation was founded on the premise that the power to govern is derived from the consent of the governed. There exists among all citizens in a democratic society an obligation to the state and community that might best be summarized by the ever popular "social contract."
        It has become the unfortunate state of affairs that the individual in American politics has attained a sort of hyper-sensitivity in relation to individuals rights. Now mind you these are not the same kind of individualistic concepts that our founding fathers respected and supported.  Equal protection was the mantra of the civil rights movement during the
1960's. The equal application of laws and rights as conferred upon the citizen has been the driving force in every suffrage movement. To be equal before the law is to say that the law will be applied in a uniform fashion without prejudice against particular citizens.
        I argue that prior oppression of some groups has lead to a sort of collective guilty conscience among the populace. The past victimization of such groups serves as the springboard for carving out special legal protection. These "new" rights are highly selective and seemingly beneficial to either one part of the polity or another. While these laws may address certain perceived problems in some communities, Federal legislation such as the Hate Crimes Prevention Act (HCPA) is ultimately a usurpation of power from both the people and the States. The grant of power to the Federal Government to investigate and prosecute what would normally be a local or state crime is an open invitation for Big Brother to snoop around every yard and hedgerow. This law is not beneficial to any one particular group as much as it is detrimental to the whole.  Exclusionary laws such as the HCPA  that bestow a positive right on a specified class of people enforce and promote vast socialist goals at the expense of the entirety. The security of individuals to be free from federal investigation in what would normally be a non federal case will have been eagerly surrendered.
        Each group lobbying Congress hopes to carve its own niche in the law and thus exert some hegemonic civil power over others. Under the guise of equality many private interest groups have prostituted the media of this country to further their private egalitarian principles. Ultimately, such a selective fragmentation in the application of laws will ignore free will eventually destroy this representative government.
        Criminal conduct is behavior that incites unlawfulness and civil unrest to the extent that it threatens the fabric of society. Criminal Law 101 is fraught with cases labeled "Rex v." and "Regina v." Rex and Regina were not rambunctious siblings raising hell in Victorian England. "Rex," as in Oedipus Rex and Rex Philogus means King. The modern day translation for this long lost Latin reference would simply equate to the "state", as in The State of California v. O.J. Simpson. This reference is indicative of the harm suffered, not by Marsha Clark (contrary to popular belief) but the entire populace of California (i.e., the state, the citizens). When a crime is committed, there is a perpetrator and a victim. The immediate harm to the victim is normally all too evident. Criminals break the public trust and sever their social contract by demonstrating their inability to keep the covenant of civility which binds us all. That individual has committed a crime against the victim, against the community in which we live, and against society as a whole.
        Crimes must have punishments. Without getting into the Kantian type debate that generally ensures such a statement it is safe to say that punishments are tailored to fit the crimes to the extent that the legislature or magistrate deems it as conciliatory to society in comparison to the breadth of social divergence. It is the crime itself that begets the punishment.  Murder is a serious crime and the seriousness is reflected in the punishment - death. There exists degrees of murder in order to help define the degree or seriousness of the crime. The extent of the harm is weighed in relation to the sentencing and serves as a mitigating factor in determining the severity of the charge and hence the applicable punishment. The HCPA would in fact prioritize those crimes that can in any rational way be connected to the victims status as a member of a particular "race, color, religion, national origin, sexual orientation, gender or disability."  Robbery is similar in its statutory scheme. Aggravated robbery involves the use of a deadly weapon or grave physical harm to the victim. Typically an aggravated offense carries a more serious punishment.
        Suppose I really have it out for greedy capitalist pigs and I decide to rob Bill Gates. The fact that I admit to picking Bill over some indigent indicates a prejudice on my part. Should my disposition towards the wealthy be considered as an additional (aggravating) factor of the crime? I ask “is it a worse injustice to rob a person because of a particular characteristic or to simply and randomly rob someone?” To make an endemic property of a crime (the selection process) a factor in figuring the punishment of the act itself does not address the crime but punishes solely for motive.   The severity of most punishment is related to the use of force in the furtherance of the crime. The increased harm or probability of harm "aggravates" the crime. The newly revised Hate Crimes Prevention Act (HCPA) punishes convicts under Federal Law by essentially defining motive as an aggravating factor.
        The primary problem with this approach is the wholly subjective interpretation of the criminal act as defined by the victim or prosecutor.  This sort of logic as applied to criminal statutes further defines such conduct not solely on the basis of the action but the motivation of the individual Is it a sound policy to extend federal jurisdiction over a criminal merely because he or she chose a disabled (easy) target?
        This legislative grant and extension of jurisdiction encourages not equal justice but simply the availability of redundant justice in the sense that the case may be heard in federal court. The Hate Crimes Prevention Act would expand federal jurisdiction in regards to "hate crimes". Thus, crimes that involve either "death or bodily injury" may be investigated by the Federal Government and prosecuted under federal law. The great danger here is that this law will be enforced against those whose circumstances the media may choose to promote. It happened to the police officers in the Rodney King case and now we will allow HCPA claims to be initiated upon state acquittal of non-concurrent charges and open the floodgates to what many consider double jeopardy.  The only restraint on this process lies with either the federal prosecutor or the victim.
Essentially there is no restraint.
        It is true that a primary concern of any governing body is to protect its citizens from crime. Let us prosecute individuals for their crime against society not what they were thinking prior to the act.  In effect this poorly worded, well meaning bill will turn 1998 into Orwell's 1984.   Another caveat of this horrible bill that offends the very notion of federalism and the limited autonomy of the individual is the fact that this perversion of authority would  allow for federal involvement even if the victimization was in no way related to any "federally protected right".   It is not difficult to imagine nearly every criminal prosecuted under HCPA.  If the prosecutor or victim believes that the violence was related to the crime to the degree that the victim was "perceived" to be a easy target "because" of his or her behavior (sexual orientation), physical stature (gender), or pacifism (religion) then Federal involvement is warranted.  Is not a rape a violent crime against a woman? To ask whether or not a heterosexual man raped a woman because of her gender really begs the question.  But for the victim not being a female the rape probably would not have occurred so lets further criminalize rape (as another separate crime) by also punishing the person for choosing to rape a woman by virtue of her sex.  The rape charge should be enforced to the fullest extent that the current law allows and sentenced accordingly, without expanding the breadth of punishment due to gender considerations.
        This continual expansion of federal law enforcement power is argued to serve everyone. After all, a crime against the individual is a crime against the polis. But every newly created federal responsibility simply increases the burden on our national government while in many cases superseding local control of such basic necessities as education, highway construction and criminal courts. United States means those individually functioning states as sovereign powers unto their own devices to the extent that national or foreign interests are seriously implicated. It is this shift in defining the offense primarily by the prior "state of mind" of the individual and separating this incident occurrence of thought to the reality of the crime that is dangerous to democracy.