Thread by @justinamash

#HR35 bans activities that are already illegal under federal law, and it’s based on the unconstitutional federalization of criminal punishment, which is a threat to civil liberties and civil rights—particularly for people of color.

To be clear, the bill does not make lynching a new federal hate crime. Murdering someone on account of their race, or conspiring to do so, is not legal under federal law. It’s already a federal crime, and it’s already a hate crime.

#HR35 criminalizes conspiracies to violate various federal criminal laws, including many that are unrelated to lynching. But it’s already illegal to conspire to commit any federal crime, so the acts this bill covers are already criminal.

The bill’s main effect is to make these conspiracies punishable to the same extent (or greater) as the underlying crimes, some of which are punishable by death. We should abolish the death penalty, not expand it to more crimes.

Setting aside that the bill doesn’t create new criminality, the conspiracies under the bill cover many crimes that the Constitution leaves to the states, not the federal government.

This federalization of criminal law has serious unintended consequences that put everyone’s rights at risk.

The Constitution lets Congress criminalize only a few enumerated activities, each of which has a federal nexus; all other crimes are left to the states because the Framers recognized the dangers of federalizing criminal law, especially the threat to individual rights.

Creating federal crimes for matters that are normally handled by the state obscures which government—federal or state—is responsible for investigating and prosecuting the crime, and it gives power to unelected federal officials whom voters can’t directly hold accountable.

This allows state officials who don’t adequately address particular crimes to shift blame and avoid accountability. At the same time, it creates an incentive for budget-constrained state and local governments not to prosecute crimes and instead leave it to the feds.

This undermines states’ experimentation with different approaches to criminal justice, uses up the resources available for actual federal issues, and encourages the expansion of the federal police force, which is not nearly as accountable to the people as are local police.

Federalizing crime also creates the possibility that a person may be charged in both state court and federal court for essentially the same crime—a form of double jeopardy, which is a due process violation.

We invite all these problems by criminalizing conspiracies under federal law for activities that largely deal with state-level issues.

It’s even more concerning here because the bill is framed as a protection for people of color, yet it is the rights of people of color that have been disproportionately violated by our massive and unaccountable criminal justice system.