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Wait ... is lynching a federal crime or not? If a lynching occurred tomorrow - an overt old-fashioned lynching, complete photographic postcards for sale, could

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 I was surprised there's not already a Federal anti-lynching statute, but perhaps it existed and then was rescinded or invalidated during Jim Crow, maybe on the pretense that it was already covered by other Civil Rights statutes or that lynching as a class of crime was too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

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.