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>They are calling for lynching to be made a federal crime. Lynching doesn't already fall under murder? Does America actually distinguish between murdering some

>They are calling for lynching to be made a federal crime. Lynching doesn't already fall under murder? Does America actually distinguish between murdering someone by hanging them publicly as a mob and other kinds of murder? Sorry, I'm not trying to be facetious or anything, I'm not American, I just don't understand how that doesn't fall under other murder laws.

wahern 6y ago
Things are more complicated now but after the Civil War, during Reconstruction, the Federal government began to pass various criminal and civil laws in defense of freedmen. Technically these laws were superfluous to state laws, but necessary as state laws weren't enforced fairly, including in state courts. But after marshal law, these Federal laws had to be narrowly tailored to fit within the powers granted by the 13th, 14th, and 15th Amendments--e.g. addressing lynching. The Federal government had no jurisdiction to enforce general criminal laws, and technically it's still similarly constrained, though the boundaries have been pushed out considerably. The now famous law (currently 42 U.S.C. Sec. 1983, see https://en.wikipedia.org/wiki/Third_Enforcement_Act https://en.wikipedia.org/wiki/Third_Enforcement_Act) granting people a Federal civil remedy for harms by state officials was part of this trend. Though, until the 1960s it was rarely used as Federal courts often interpreted it to apply only when a state-based remedy was unavailable or if the officer was directly enforcing an unconstitutional state law. It was [liberal] "judicial activism" that changed the precedents and made that law more readily available. And then [conservative] "judicial activism" that created Qualified Immunity, partially neutering it all over again.[1] State based anti-hate laws seem to have come about as a way to 1) signal to the community a newfound or renewed commitment to apply laws more fairly and 2) focus resources on certain categories of crime that the community deemed especially egregious. [1] People lauded Justice Thomas' dissent to the refusal to grant certiorari for a Qualified Immunity case. But if you read his actual dissent he not only believes QI to be wrong, but also suggests the court should revisit the 1961 case, Monroe v. Pape, that actually gave S. 1983 teeth. Overturning Pape would be worse than Qualified Immunity in terms of the ability for harmed citizens to hold police officers accountable.
- grawprog 6y ago
  Wow. Huh. Thanks for the explanation. I know a bit of the complications of American laws, especially when it comes to state jurisdictions, though i realize there's much I don't understand, I figured things like that were already federal though. I appreciate you taking the time to explain and take my comment seriously, I understand how it could have come off wrong.
  - wahern 6y ago
    I guess it should also be made clear that in the U.S. there are two parallel court systems, state courts and Federal courts, both of which behave like courts of general jurisdiction. The rules for when and which court system can hear state or Federal civil (non-criminal) cases are complex and have varied considerably over the past 230 years, but for criminal laws only state courts try state law crimes and only Federal courts try Federally legislated crimes. So one reason to create a Federal criminal statute is to empower Federal prosecutors, to ensure Federal judges will hear a case, and for Federal procedural rules to be applied.
- pyuser583 6y ago
  Wait ... is lynching a federal crime or not? If a lynching occurred tomorrow - an overt old-fashioned lynching, complete photographic postcards for sale, could it prosecuted in federal court? I’m confused because places like the New York Times talking about legislation that would make lynching a federal crime. But a few years ago they were talking about how Doug Jones prosecutes historical lynchings as a federal prosecutor. So apparently Doug Jones was elected to the Senate for prosecuting lynchings, which aren’t actually against federal law. Something is wrong with this picture. I suspect that lynchings have been illegal for a very long time, but under more general Civil Rights legislation.
  - wahern 6y ago
    Judging by the article, apparently lynchings aren't a Federal crime, at least not independently of more wide reaching statutes. But a lynching is a category of crime that would readily fall within the purview of Federal jurisdiction under one or more of the Civil Rights amendments. To the original question of why create superfluous crimes, specifically of acts already considered murder under state law, it's because the states cannot always be trusted to vigorously enforce them, yet the Federal government doesn't have the power to criminalize murder generally. I was surprised there's not already a Federal anti-lynching statute, but perhaps it existed and then was rescinded or invalidated during Jim Crow, maybe on the pretense that it was already covered by other Civil Rights statutes or that lynching as a class of crime was too ill-defined. Prosecutorial discretion to abstain from enforcement is more easily abused the more general the statute. During the Jim Crow era both the Federal Congress and Federal Supreme Court were complicit and in some cases active participants with the states in relaxing Reconstruction era reforms. The history is complex, especially when you factor in the period of marshal law. (And it's made more complex by attempts to obscure it. In my high school American history class in the 1990s we were taught that the Confederacy formed principally to preserve "states' rights", not to preserve slavery. Such semantic games work quite well over time.) Unfortunately, I already blew my monthly time budget reading about the history of Qualified Immunity last week, so haven't dug deeply into the history.

wahern 6y ago

Things are more complicated now but after the Civil War, during Reconstruction, the Federal government began to pass various criminal and civil laws in defense of freedmen. Technically these laws were superfluous to state laws, but necessary as state laws weren't enforced fairly, including in state courts. But after marshal law, these Federal laws had to be narrowly tailored to fit within the powers granted by the 13th, 14th, and 15th Amendments--e.g. addressing lynching. The Federal government had no jurisdiction to enforce general criminal laws, and technically it's still similarly constrained, though the boundaries have been pushed out considerably. The now famous law (currently 42 U.S.C. Sec. 1983, see https://en.wikipedia.org/wiki/Third_Enforcement_Act https://en.wikipedia.org/wiki/Third_Enforcement_Act) granting people a Federal civil remedy for harms by state officials was part of this trend. Though, until the 1960s it was rarely used as Federal courts often interpreted it to apply only when a state-based remedy was unavailable or if the officer was directly enforcing an unconstitutional state law. It was [liberal] "judicial activism" that changed the precedents and made that law more readily available. And then [conservative] "judicial activism" that created Qualified Immunity, partially neutering it all over again.[1] State based anti-hate laws seem to have come about as a way to 1) signal to the community a newfound or renewed commitment to apply laws more fairly and 2) focus resources on certain categories of crime that the community deemed especially egregious. [1] People lauded Justice Thomas' dissent to the refusal to grant certiorari for a Qualified Immunity case. But if you read his actual dissent he not only believes QI to be wrong, but also suggests the court should revisit the 1961 case, Monroe v. Pape, that actually gave S. 1983 teeth. Overturning Pape would be worse than Qualified Immunity in terms of the ability for harmed citizens to hold police officers accountable.

grawprog 6y ago
Wow. Huh. Thanks for the explanation. I know a bit of the complications of American laws, especially when it comes to state jurisdictions, though i realize there's much I don't understand, I figured things like that were already federal though. I appreciate you taking the time to explain and take my comment seriously, I understand how it could have come off wrong.
- wahern 6y ago
  I guess it should also be made clear that in the U.S. there are two parallel court systems, state courts and Federal courts, both of which behave like courts of general jurisdiction. The rules for when and which court system can hear state or Federal civil (non-criminal) cases are complex and have varied considerably over the past 230 years, but for criminal laws only state courts try state law crimes and only Federal courts try Federally legislated crimes. So one reason to create a Federal criminal statute is to empower Federal prosecutors, to ensure Federal judges will hear a case, and for Federal procedural rules to be applied.
pyuser583 6y ago
Wait ... is lynching a federal crime or not? If a lynching occurred tomorrow - an overt old-fashioned lynching, complete photographic postcards for sale, could it prosecuted in federal court? I’m confused because places like the New York Times talking about legislation that would make lynching a federal crime. But a few years ago they were talking about how Doug Jones prosecutes historical lynchings as a federal prosecutor. So apparently Doug Jones was elected to the Senate for prosecuting lynchings, which aren’t actually against federal law. Something is wrong with this picture. I suspect that lynchings have been illegal for a very long time, but under more general Civil Rights legislation.
- wahern 6y ago
  Judging by the article, apparently lynchings aren't a Federal crime, at least not independently of more wide reaching statutes. But a lynching is a category of crime that would readily fall within the purview of Federal jurisdiction under one or more of the Civil Rights amendments. To the original question of why create superfluous crimes, specifically of acts already considered murder under state law, it's because the states cannot always be trusted to vigorously enforce them, yet the Federal government doesn't have the power to criminalize murder generally. I was surprised there's not already a Federal anti-lynching statute, but perhaps it existed and then was rescinded or invalidated during Jim Crow, maybe on the pretense that it was already covered by other Civil Rights statutes or that lynching as a class of crime was too ill-defined. Prosecutorial discretion to abstain from enforcement is more easily abused the more general the statute. During the Jim Crow era both the Federal Congress and Federal Supreme Court were complicit and in some cases active participants with the states in relaxing Reconstruction era reforms. The history is complex, especially when you factor in the period of marshal law. (And it's made more complex by attempts to obscure it. In my high school American history class in the 1990s we were taught that the Confederacy formed principally to preserve "states' rights", not to preserve slavery. Such semantic games work quite well over time.) Unfortunately, I already blew my monthly time budget reading about the history of Qualified Immunity last week, so haven't dug deeply into the history.