Last week, in U.S. v. Miller, a divided panel of the U.S. Court of Appeals for the Sixth Circuit reversed the convictions of sixteen members of an Amish sect who had been charged with violating the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009. As I noted here, the sect members were prosecuted for having committed “hate crimes” by attacking allegedly wayward members of their sect and forcibly cutting off the beards and hair of their victims to punish them for their alleged religious transgressions.
The defendants’ committed federal crimes, prosecutors claimed, because some of the implements used to commit the crimes had, at one time, been items in interstate commerce. Even accepting the expansive post-New Deal understanding of federal authority to regulate interstate commerce, this seems like something of a stretch. Recent Supreme Court decisions, including Bond v. U.S., would seem to suggest that such an interpretation of the federal hate crimes law goes too far. A 2009 memorandum from the Office of Legal Counsel reached the opposite view.
The Sixth Circuit did not need to reach the federalism question in Miller, however (nor did it reach the defendants’ interesting religious freedom claims). The panel majority reversed the defendants claims because the district court provided erroneous jury instructions. Specifically, the majority concluded that the jury instructions were erroneous because they did not require the jury to find that the victims’ religion was the “but for” cause of the attacks.
Judge Sutton, writing for the court, summarized the case:
At stake in this appeal is whether their hate-crime convictions may stand. No one questions that the assaults occurred, and only a few defendants question their participation in them. The central issue at trial was whether the defendants committed the assaults “because of” the religion of the victims. 18 U.S.C. § 249(a)(2)(A). In instructing the jury on this point, the district court rejected the defendants’ proposed instruction (that the faith of the victims must be a “but for” cause of the assaults) and adopted the government’s proposed instruction (that the faith of the victims must be a “significant factor” in motivating the assaults). Regrettably for all concerned, a case decided after this trial confirms that the court should have given a but-for instruction on causation in the context of this criminal trial. Burrage v. United States, 134 S. Ct. 881, 887–89 (2014). Because this error was not harmless, and indeed went to the central factual debate at trial, we must reverse these convictions.
Judge Sargus, a district court judge sitting by designation on this panel, dissented. He wrote:
While I respect the majority’s efforts to construe a deceivingly simple, but actually complex, statute, I dissent. In my view, the majority has adopted an unduly restrictive interpretation of the statute.
Since this case was tried, the Supreme Court decided the case of Burrage v. United States, 134 S. Ct. 881 (2014). The majority correctly holds that the “because of” phrase used in § 249(a), similar to “results from,” requires proof that one act would not have happened “but for” the other. I disagree, however, with the majority’s conclusion that the trial court’s causation-instruction error was not harmless. This disagreement stems not from a dispute over the standards governing a harmless error analysis, but rather is from a disagreement over statutory construction.
Over at Balkinization, Georgetown law professor Marty Lederman explains why he thinks the Sixth Circuit’s “conclusion that the evidence did not necessarily prove that the victims’ religion was a but-for cause of the assaults” is “untenable” and “disturbing.”
isn’t it plain beyond any doubt that the victims’ religion was a but-for cause of the type of bodily injury that occurred here–the cutting of beards and hair? The assailants obviously chose to use that very unusual form of assault because the hair and beards were of deep religious significance to the victims–indeed, to strike at a fundamental component of their religious identity, by deliberately imparting a tangible, humiliating public sign that the victims were religious outcasts. . . .
the majority is of the view that where someone decides to assault someone else for nonreligious reasons–where, in the majority’s words, a nonreligious ground was the motive for the assault–but specifically chooses to physically force the victims to violate their religious precepts as a way of hurting them in a fundamental way that a mere ordinary assault could not, the victims’ religion is not a “but-for” cause of the bodily injury. . . .
the Supreme Court has explained that a government can “punish ‘bias-inspired conduct’ without offending the First Amendment because bigoted conduct ‘inflict[s] greater individual and societal harm'” (quoting Wisconsin v. Mitchell). In the Amish case . . . the assailant’s deliberate choice to physically force the victims to violate their religion, and to do so in a way that is designed to leave a conspicuous public sign of their religious transgression, obviously inflicts much greater “individual and societal harm” than if the assailant had chosen merely to, say, strike the victim in the face, as in an ordinary assault. And that is so regardless of whether the fact of the assault was motivated by the victim’s religion. The victim’s religion plainly is a “but-for” cause of the way in which the “bodily injury” was inflicted, and the but-for cause of the special and distinctly acute harm in such cases that distinguishes them from ordinary assaults.
Harvard law professor Noah Feldman takes a different view. Writes Feldman:
the real reason the Sixth Circuit was right lies in the policy that the hate-crimes law is meant to effectuate — and the real-world consequences of its application. The law was aimed at punishing true hate crimes, classically committed by members of one group against another. It was never meant to criminalize all attacks among members of a group who define themselves on the basis of religion.
Yet as applied by the trial judge, the law would have covered almost any case where co-religionists attacked one another as part of an intra-religious dispute. In such cases, the religion of the victim is certainly a significant factor. Mullet and his followers were trying to sanction their Amish victims in part for violating what they believed to be Amish norms. And the symbolic nature of the attacks made sense only if the victims were Amish.
Yet in cases of intra-religious controversy, the victim’s religion is almost never the main cause of the attack. Mullet’s victims weren’t singled out primarily because they were Amish — a classic hate crime — but because there was a dispute among various Amish people about internal ideological and political matters.
If the hate-crimes law is used to punish intra-religious crimes, it could change from a shield to protect minorities into a weapon against them. Religious groups whose beliefs pervade their whole world view see everyone in terms of religion. Any assault they commit might be considered a federal crime.
Such application of the federal hate crime law — or any hate crime law for that matter — could be troubling. Yet as noted in my original post, I think the larger problem here is that this is a question of federal law. There’s a reasonable debate to be had over the utility or desirability of hate crime statutes, but those debates should occur at the state and local level. If the Miller defendants are to be prosecuted for their violent acts, it should be done under state law. However outrageous their actions, they should not be a federal crime.
[Note: As originally posted, I was somewhat sloppy in characterizing Marty Lederman’s argument. I regret the error and have made a small correction.]