Saturday, October 10, 2009

Matthew Shepard Act Passes House of Representatives

The House of Representatives passed the Matthew Shepard Hate Crimes Prevention Act, as part of the National Defense Authorization Act of 2010.  

The Act, named for Matthew Shepard (pictured below),  


would authorize federal assistance to states and localities in prosecuting hate crimes and would itself criminalize acts of violence "because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person" under these circumstances:

`(i) the conduct occurs during the course of, or as the result of, the travel of the defendant or the victim--

`(I) across a State line or national border; or
`(II) using a channel, facility, or instrumentality of interstate or foreign commerce;

`(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct;
`(iii) in connection with the conduct, the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or
`(iv) the conduct --

`(I) interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or
(II) otherwise affects interstate or foreign commerce.

The Congressional power at issue is obviously the Commerce Clause with the following supporting findings:

(6) Such violence substantially affects interstate commerce in many ways, including the following:
(A) The movement of members of targeted groups is impeded, and members of such groups are forced to move across State lines to escape the incidence or risk of such violence.
(B) Members of targeted groups are prevented from purchasing goods and services, obtaining or sustaining employment, or participating in other commercial activity.
(C) Perpetrators cross State lines to commit such violence.
(D) Channels, facilities, and instrumentalities of interstate commerce are used to facilitate the commission of such violence.
(E) Such violence is committed using articles that have traveled in interstate commerce.

Yet the Congressional findings also include references to the 13th, 14th, and 15th Amendments in relation to "race, color, or ancestry."

A defendant convicted under this federal act would most likely attack the constitutionality of the statute as lacking Congressional power as in the Violence Against Women Act in United States v. Morrison, 529 US 598 (2000) and the Gun Free Schools Act in United States v. Lopez, 514 US 549 (1995). 

Meanwhile, the Matthew Shepard Act might provide an excellent in-class exercise reviewing Congressional power under Commerce Clause and Section 5 [of the the Fourteenth Amendment].


Commerce Clause, Congressional Authority, Current Affairs, Federalism, Fourteenth Amendment, Gender, Sexual Orientation, Sexuality | Permalink

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I've got a couple "layperson" questions.

1. Does this bill state that a person can be tried or sentenced a second time for the same act? It seems to give the attorney general the power to do so if the defendant isn't deemed to be sufficiently punished.

2. Is this "commerce" part kind of a sneaky route to exert state power over assault cases?

3. Could this be applied to border guards attempting to repel illegal immigrants?

Posted by: Curtis Sprissler | Nov 1, 2009 5:55:13 PM

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