Amicus Brief

Cannon v. United States of America

The Court should decide now the constitutionality of Section 249(a)(1) of the Hate Crimes Prevention Act of 2009

Brief of Amici Curiae Cato Institute, Reason Foundation, and Individual Rights Foundation in Support of Petitioner

Cannon v. United States of America

The George Zimmerman case was the most recent example of a highly publicized, controversial episode in which a state acquittal results in vociferous public demands for federal re-prosecution under the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009 (“HCPA”), 18 U.S.C. § 249. There will no doubt be future cases where emotions run high. The Court should hold that Section 249(a)(1) is not authorized by the Thirteenth Amendment now, because waiting risks that a case will capture the public’s imagination in a way that will make it more painful and institutionally costly for the Court to invalidate the provision.

HCPA Section 249(a)(1) adds yet another provision to the federal criminal code that will be used by the government to preempt adequate state prosecution or to re-prosecute people who have already been prosecuted by state authorities. The federal government will face enormous public pressure to re-prosecute or preemptively prosecute in the high-profile, racially-charged cases that Section 249(a)(1) often covers, which increases the chances of double prosecutions and the unnecessary expansion of federal criminal jurisdiction.

Instances where state authorities have dealt inappropriately with a crime that Section 249(a)(1) prohibits are exceedingly rare. And yet there was considerable pressure on Congress to pass a federal hate-crimes law. Emotions run high in cases in which the defendant is accused of a hate crime. These are exactly the kinds of cases for which the guarantee against double jeopardy was written. Sadly, the government’s ability to re-prosecute and take over otherwise adequate prosecution is likely a large part of HCPA’s purpose, at least to its supporters. The breadth of Section 249(a)(1), which includes all violent crimes in which the perpetrator acts “because of the actual or perceived race, color, religion, or national origin” of the victim, further increases the chances of double prosecution and intrudes on the core police powers of the states. Actual hatred is not an element of the crime.

Although there is a dual-sovereignty exception to the Fifth Amendment’s guarantee that persons will not face a second prosecution for the same offense, that exception does not apply to federal re- prosecutions brought under Section 249(a)(1). For the reasons discussed in the cert petition and the amicus brief of U.S. Civil Rights Commissioners Gail Heriot, and Peter Kirsanow, Section 249(a)(1) is not a legitimate exercise of authority under Section 2 of the Thirteenth Amendment. The provision does not prohibit slavery or involuntary servitude. Nor is it a prophylactic measure intended to assist in preventing the return of slavery or involuntary servitude. The federal government thus does not have jurisdiction over the prohibited acts in Section 249(a)(1), and the dual sovereignty rule does not apply to a government that lacks jurisdiction. See United States v. Lanza, 260 U.S. 377, 384 (1922).

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