Monday, September 01, 2014

Hate Crimes, Chemical Weapons, and the Persistence of Ordinary Language Concepts Despite Statutory Definitions

by Michael Dorf

The recent 6th Circuit opinion in United States v. Miller provides an opportunity for discussiong a broader question about statutory interpretation: namely, to what extent, if any, does the ordinary meaning and use of a term bear on its legal meaning when the statute contains a definition that expands (or otherwise departs from) that ordinary meaning and use? I shall consider that question as raised by both Miller and last Term's SCOTUS decision in Bond v. United States. The two cases involve, respectively, hate crimes and chemical weapons.

Let's begin with Miller. As Marty Lederman explains succinctly in an excellent post on Balkinization, the Miller decision reverses the convictions of various members of the Bergholz Old Order Amish community, who forcibly attacked and cut the beards of Amish men and the hair of Amish women, in violation of their victims' religious beliefs. The acts were clearly crimes but the question in Miller was whether they were hate crimes in violation of a federal statute. The Sixth Circuit said that the statute requires that the government prove that the religion of the victims must be a but-for cause of the crime but that the jury was instructed that it only needed to find that religion was a significant factor in motivating the attack, and that this was reversible error. Professor Lederman criticizes the ruling on the ground that the evidence was overwhelming that religion was a but-for cause of the assaults in the particular cases, so that a properly instructed jury would also have convicted, and that therefore the error was harmless.

To explain my somewhat different take on the case, it will help to understand the underlying facts in a little more detail. The leader of the Bergholz group had excommunicated the eventual victims of the assault when they complained about his leadership practices. Under ordinary Amish tradition, shunning would result: no other Amish community can accept excommunicated members. Nonetheless, these excommunicates were accepted by another Amish community because they successfully argued that the Bergholz excommunication was unorthodox and unjustified. The attacks followed as retribution.

Professor Lederman notes that the attacks were motivated by the fact that some of the excommunicates were seen by the Bergholz group as "Amish hypocrites." Moreover, he argues powerfully that religion was clearly a but-for cause of the type of attack: beard cutting and hair cutting. Even if the motive for the attack was mixed, but for the fact that the victims were Amish, the attack would not have taken this form, which was meant to be, and was, particulary painful for Amish victims. Thus, he concludes that religion was a but-for cause of the attacks.

I do not disagree with Lederman's analysis but I think it is at least potentially incomplete. For while it jibes well with the text of the hate crime statute, it is an awkward fit with the law's purpose. The relevant portions of the statutory text provide: "Whoever, whether or not acting under color of law, willfully causes bodily injury to any person . . .  because of the actual or perceived . . . religion . . . of any person . . . shall be imprisoned not more than 10 years, fined . . . or both . . . ." If that were all we had, then I would agree with Lederman that the evidence is overwhelming: Religion was a but-for cause of (at least) the type of assault committed by the Bergholz defendants.

But is that all we have? I'm not so sure. The current statutory language was enacted in 2009 in the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. For those with short memories, Congress acted on the view that Shepard and Byrd were, respectively, tortured and killed by homophobic and racist bigots as an expression of their respective homophobia and racism. The Act that bears their name recognizes the special harm that hate crimes perpetrate. It recognizes that, in addition to the harm inflicted by an assault qua assault, the animus motivating the crime is an additional wrong.

Taking what was done to Shepard and Byrd as paradigmatic hate crimes, is it clear that the acts perpetrated by the Bergholz Amish were not only despicable acts but also hate crimes? They certainly did not act out of what we would conventionally call anti-Amish bias, much less hatred.

I don't mean to suggest that intra-group attacks can never be hate crimes. An African American who was victimized by other African Americans for not "acting black" or a member of a religious community who was victimized for marrying outside of the group could, in various circumstances, be deemed the victim of a hate crime. And perhaps even in Miller itself it's possible to think of the assaults on excommunicates as an example of inter-sect violence, akin to, say, Protestants attacking Catholics or vice-versa. Just because both groups are Christian doesn't mean there cannot be in groups and out groups within the larger category; that can be true with respect to sub-sects of the Amish as well. But my larger point is simply that there is a way of viewing the facts of Miller as not fitting within our ordinary understanding of the term "hate crime."

Well, one might say, so what? "Hate Crimes" appears in the title of the Act, but the actual Code section under which the defendants were charged only requires that the attack be "because of . . . religion," which does not appear to require any kind of animus or hatred. Statutes are rarely totally coextensive with their background justifications, and so here, one might think, Congress defined the crime to encompass some conduct that we might not conventionally describe as a "hate crime." In these circumstances, conventional wisdom would say that unless the statutory terms are unclear, the background purpose of or justification for the law is irrelevant.

I part company with the conventional wisdom--which seems to me to be unduly influenced by textualism--with respect to what constitutes lack of clarity. The conventional wisdom says that one first determines whether the text is clear, and only if the answer is no does one look to background purposes to determine the best interpretation. In my view, this approach provides too narrow a scope for the consideration of purposes, which can create ambiguity where the words alone do not appear to contain any.

Miller is an arguable example of this phenomenon. So is the SCOTUS decision in Bond. Recall that in Bond the Court construed the Chemical Weapons Convention Implementation Act (CWCIA) not to cover a garden-variety non-lethal poisoning using commonly obtainable chemicals. When the case was decided, I argued in a DoL post that the reasoning of the majority opinion by CJ Roberts rested on the (reasonable) assumption that harmful consequences of construing a text in accordance with its apparently plain meaning should lead a court to reconsider that meaning in light of the statutory purpose. And it happens that in Bond, as in Miller, the statute's very title tells us the statutory purpose: in one case to implement the Chemical Weapons Convention; in the other to punish hate crimes. Thus in neither case does the inquiry into purpose require the court to speculate about the legislative purpose.

Let me close with four caveats.

(1) I think the argument for finding textual ambiguity is somewhat better in Miller than in Bond. Even if one thinks that Congress was only trying to forbid what are considered chemical weapons in ordinary language, it's still difficult to make that judgment fit with the actual text of the CWCIA. Put differently, the clarity of the statutory definition of chemical weapons may persist, even after one takes account of effects and purposes. By contrast, in Miller, one might think that to attack someone because of of a forbidden ground means attacking someone due to animus based upon that ground. That is a narrower view of "because of" than its most natural ordinary language meaning, but still a fair reading of the language.

(2) Cutting in the other direction, in Bond the Court may have had a better justification for its narrow reading: to avoid the constitutional issue under the Treaty Power. As Professor Lederman notes, there is a similar issue lurking in the background in Miller. Because the hate crimes legislation contains no state action requirement, there is a question about Congress's affirmative power to enact it. As applied to racial attacks, it can be justified on 13th Amendment grounds, at least so long as Jones v. Alfred H. Mayer Co. remains good law. But in some other circumstances, the law would need to be justified under the Commerce Clause, which could be challenging. Nonetheless, constitutional avoidance doesn't fit with the animus requirement, as animus is not a Commerce Clause concept.

(3) I want to be clear that I'm not saying that in Miller the 6th Circuit actually relied on the animus construction of "because of." The dissent in Miller accuses the majority of doing that, but the point is not made expressly by the Miller majority itself; it is at most an implicit assumption in that opinion.

(4) Finally, I also want to be clear that I am not saying that I agree with the application of the principle I have identified here in either Miller or Bond. I am only saying that the principle--that background purposes can identify a lack of clarity that does not appear on the face of statutory text--is sound. The principle makes the results in Miller and Bond more plausible than they would be without it, but I am not claiming that it necessarily renders either decision correct.


Joe said...

I do see some sense of "hate" in the attacks here, including their cruel nature. Yes, they are not really the core example of the crime the law was intended to address. Still, the type of crime, including the sense of shame and physical attack motivated by a belief the victims were shameful and "deserved" it has some salience here.

I'm also wary of the federal government getting involved in this sort of matter. So, do see some constitutional avoidance possibilities though that doesn't seem to be the issue here -- the court applied another case regarding the standards of "but cause" guidelines etc.

Anyway, the issue of statutory interpretation brings to mind Judge Robert Katzmann's new book. He was on Q&A last night:

James said...

This approach to statutory interpretation sounds relevant to the challenge to the grant of ACA subsidies to persons who buy their health insurance on a federal exchange.

Neal Goldfarb said...

If animus is not required, the statute seems to make a federal felony out of any bris in which the mohel came from out of state.

Note in this regard that the statute incorporates the definition of "bodily injury" from 18 U.S.C. 1365(h)(h), which includes "a cut...or disfigurement."

Neal Goldfarb said...

I should add that any criminal charges for performing a religious circumcision would be subject to a RFRA defense.

Neal Goldfarb said...

...and a free exercise defense, as long as nonreligious circumcision is allowed.

Greg said...

After reading your post and Marty Lederman's post, I'm inclined to side with the majority in Miller. Mr. Lederman's primary argument seems to be that "because of" includes at a minimum both method and motive for all similar usage within all U.S. law. I would agree with the Sixth Circuit in its decision (perhaps implicit) that "because of" is ambiguous and has to be interpreted within the meaning of the statute. In the case of Miller, as with the hypothetical proposed by the majority, the "because of" in this particular statute should be limited (at least primarily) to motive.
Mr. Lederman is clearly right that "because of" in the context of title VII should be interpreted to include both motive and method, but that shouldn't constrain the meaning of the phrase in all other statutes.
I'm not arguing that the re-trial won't find but-for religious motive in Miller, just that it was reasonable not to construe it purely based on method without any consideration of motive.
In short "because of" is not sufficiently precise language in this context, and the majority's decision was a reasonable one, without the far-reaching effects that Mr. Lederman implies.

Sam Rickless said...

I'm a bit worried about placing as much weight as you do, Mike, on the *titles* of statutes. Congress often finds very odd, politically motivated names for its Acts, where the names often mean the exact opposite of what the Acts actually accomplish. Here's a hypothetical example. Congress passes the "Expand Voting Access" act, a law that explicitly restricts access to the polls for those who do not have the proper ID. There is a contradiction between the title and the explicit provision of the law. It seems odd to defer to the law's stated purpose in the title. It seems odd to treat the law as self-contradictory, so that all bets are off. The most reasonable position, or so it seems to me, is to ignore the law's title and focus on the "plain meaning" of the statute's content, unfortunate as it may be.

Or suppose the law is called "The Criminal Responsibility for the Death of Innocents Act", but all the law says is that anyone who knowingly causes the death of an innocent person is subject to imprisonment. Even if everyone knows that criminal responsibility reaches further than knowingly causing harm (to gross negligence, for example), should the title be used to second-guess the content of the statute? I think not.

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