Recently, Representative Ken Buck introduced the Blue Lives Matter Act of 2016, which would amend the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009 to make any attack on a police officer* a federal hate crime.
It is indisputably true that blue lives matter and that lives of any and all other colors matter. Nonetheless, Congress needs to think carefully about whether it is really advisable to expand existing hate crimes legislation in this way.
The modern federal criminal code is hardly modest in scope. As the The Heritage Foundation’s Paul Larkin notes, more than 40 percent of federal criminal laws enacted since the Civil War have come since 1970, and between 2000 and 2007, Congress legislated more than 450 new crimes — more than one a week.
Prudence is always necessary before enacting new criminal laws, but given the metastasis of federal criminal law, it is important now more than ever. Because federal and state governments are “separate sovereigns,” trial by both the federal and state government is not a violation on the Constitution’s prohibition on double jeopardy. When the federal criminal law was more limited in scope, it was rare that anyone would twice face trial for the same crime because of this exception. But as federal criminal law expanded, it has more commonly come into play. Cases that are brought a second time as federal cases are likely not a random sample of state cases that ended in acquittal. Rather, they are more likely to be emotionally charged cases in which prosecutors strongly desire convictions for political reasons.
Like the crimes prohibited by the Shepard-Byrd Act, all of the conduct penalized by the Blue Lives Matter Act is already illegal. Violence against police officers (as of all persons) is criminalized across the country. Additional penalties for crimes committed against a police officer are also overwhelmingly common at the state and local level. If there are any prominent cases in which state courts have failed to punish adequately persons who harm police officers, Buck and the sponsors of the Blue Lives Matter Act have not cited them in media coverage about the Blue Lives Matter Act or in their Dear Colleague letter calling for the Act.
Buck’s Dear Colleague letter claims that “Federal hate crime laws enhance the punishment for criminal activities motivated by hate for the inherent characteristics or closely held behaviors and beliefs of individuals in certain classes, including race, religion, gender, and sexual orientation.” This isn’t quite true: the Shepard-Byrd Act punishes crimes that have been committed “because of” the actual or perceived race, color, national origin, gender, sexual orientation, gender identity, or disability of any person (not necessarily that of the victim.) Hatred or bias is not actually required: a bare causal connection is all that is necessary. The “because of” language means that the Shepard-Byrd Act covers far more crimes than those arguably motivated by hatred or bias: as Gail Heriot** has noted, for example, rapists are seldom indifferent to the gender of their victims, and common thieves often target persons with disabilities not out of anti-disability bias, but because these persons have a harder time physically resisting the taking of their property.
The Blue Lives Matter Act repeats the Shepard-Byrd Act’s error by prohibiting crimes committed “because of” the victim’s actual or perceived status as a police officer. The trouble is that crimes are often committed against police officers not because the offender subscribes to some grand anti-police ideology, but instead because the offender is trying to escape police custody. It therefore makes sense that state and local laws often add additional penalties for crimes committed against police to prevent resistance of arrest. But important as this problem is, it isn’t a bias problem. If Congress wants to prohibit only crimes based on hatred against police officers, then it should amend the Blue Lives Matter Act accordingly — and consider amending the Shepard-Byrd Act at the same time.
As economist Tyler Cowen has observed, much of contemporary political debate boils down to which groups or individuals should be raised or lowered in status. Debates about racial hate crime laws tend to devolve into debates about whether the status of African-Americans should be raised or lowered. So, too, I fear, the Blue Lives Matter Act is really just about signaling that police officers should have higher status in society. The problem is that expanding the federal criminal code has consequences well beyond raising the status of groups. The temptation to grow it for these goals should be resisted.
*Although the act is meant to cover “hate crimes against police officers,” it may be fairly read to cover crimes against prosecutors, judges, and perhaps others. The term “police officer” is defined as “any officer or employee of the United States, any State, or any political subdivision of a State, while engaged in the enforcement or prosecution of any of the criminal laws of the United States, a State, or any political subdivision of a State,” which I believe would include persons from those other groups when performing job duties.
**I work as Gail Heriot’s special assistant and counsel at the Commission on Civil Rights. The views in this post are my own and are not necessarily those of Gail Heriot, the Commission on Civil Rights, or anyone else.