Yesterday Samuel Mullet Sr., the leader of an Amish sect in Ohio, and 15 of his followers were convicted of federal crimes in connection with a series of bizarre beard- and hair-cutting attacks on other Amish with whom Mullet was feuding. Why was this a federal case? Because Steven M. Dettelbach, the U.S. attorney for the Northern District of Ohio, argued that Mullet picked his victims "because of" their "actual or perceived religion." Specifically, Mullet had said the attacks (which he denied ordering) were punishment for failing to respect his authority as a bishop, including his excommunication orders against those he deemed insufficiently pious. Federal prosecutors said that religious motivation made the attacks hate crimes.
Is that really all it takes to make a federal case out what would otherwise be run-of-the-mill state crimes (albeit with a quirky Amish twist)? No, there are a couple of other elements that prosecutors had to allege. Since the federal hate crime statute applies to offenses involving actual or attempted "bodily injury," they had to argue that shorn whiskers and hair qualify for that description—a bit of a stretch. While it's true that such forcible makeovers are especially humiliating for the Amish, who consider long beards on married men and long hair on women religious requirements, this infliction of extra emotional distress does not change the physical reality of the act.
The government also had to cite an "interstate nexus" to justify federal prosecution. You might think that would be a challenge, since all of these crimes occurred within a single state. But hey, look, Dettelbach says: The "Wahl battery-operated hair clippers" used in the assaults "were purchased at Walmart and had travelled in and affected interstate commerce in that they were manufactured in Dover, Delaware." The defendants also used "a pair of 8" horse mane shears which were manufactured in the State of New York and sent via private, interstate postal carrier to [a retailer] in Ohio for resale." They took pictures of their victims with "a Fuji disposable camera from Walmart" that "travelled in and affected interstate commerce in that it was manufactured in Greenwood, South Carolina." They used "an instrumentality of interstate commerce" (i.e., a highway) to reach victims in Trumbull County, Ohio. (They never actually left the state, but they could have.) The indictment also mentions a letter (carried by the U.S. Postal Service!) that was used to lure one of the victims. An embarrassment of interstate nexuses, in more ways than one.
It seems safe to say that policing internecine squabbles among the Amish was not the sort of thing members of Congress had in mind when they voted for the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, the 2009 law that expanded the Justice Department's power to federalize crimes motivated by bigotry. Among other things, that law added gender, sexual orientation, gender identity, and disability to the list of victim selection criteria (which previously was limited to race, religion, and national origin) and eliminated a requirement that the victim be engaged in a "federally protected activity" such as voting or education. The law was named after two murder victims who were targeted because of their sexual orientation and race, respectively. The focus on the murders of Shepard and Byrd as a justification for federal intervention was puzzling, since state courts proved perfectly capable of bringing their killers to justice. And as with state hate crime laws, the federal statute essentially punishes people for their beliefs by imposing extra punishment for crimes motivated by bigotry. But at least these paradigmatic cases fit the conventional understanding of hate crimes as attacks on despised minorities. Not so the assaults allegedly ordered by Mullet, which were a far cry from beating a gay man and leaving him to die or dragging a black man to death behind a pickup truck—not just in terms of severity but also in terms of motivation.
By the legal logic applied in this case, any religious leader who uses corporal punishment to discipline wayward followers is guilty not just of assault but of a federal hate crime. Likewise a Hassid who slugs another Hassid after getting into an argument about who the next rebbe should be, two Catholics who come to blows over the merits of the Latin Mass, or two Mormons who tussle after one condemns the other for drinking caffeinated soft drinks. In each of these cases, the victim is selected "because of" his religion in the same sense that Mullet et al.'s victims were. Indeed, although the trial judge rejected the argument that bringing this case violated the First Amendment rights of Mullet and his co-defendants, they are effectively being punished for their religious beliefs, since they would not have been prosecuted under federal law if their motivation had been nonreligious. Under the Justice Department's reading of the law, an assault is a hate crime if it is driven by disagreements over religious doctrine but not if arises from political, scientific, philosophical, or aesthetic disputes.
In what sense does federal prosecution amount to additional punishment? The hate crime conviction carries a maximum penalty of life imprisonment (since it involves kidnapping—i.e. the forcible restraint of the victims). The defendants were also convicted of conspiracy and concealing or destroying evidence, enhancing the likelihood of stiff sentences. The New York Times says they face the prospect of "several decades" in prison. Under Ohio law, by contrast, aggravated burglary and kidnapping are first-degree felonies carrying penalties of three to 10 years. Furthermore, Ohio prisoners can hope for parole, which is not a possibility in the federal system.
But why choose? Several of the same defendants were also charged with burglary and kidnapping under state law, and thanks to the doctrine of "dual sovereignty" they can be punished for those crimes as well, even though the underlying actions are the same. Dual sovereignty also means they could be acquiited in state court, then tried again in federal court (or vice versa), notwithstanding the constitutional ban on double jeopardy. This case illustrates once again how the 2009 hate crime law enhanced the Justice Department's already broad power to federalize what used to be considered state offenses, thereby impinging on state authority, triggering serial prosecutions, and arbitrarily meting out extra punishment based on political considerations.
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