Constitutional Opinions: More Equal Than Others
Rabkin, Jeremy
CONSTITUTIONAL OPINIONS by Jeremy Rabkin More Equal Than Others R emember the four Los Angeles policemen charged in the beating of Rodney King? After their acquittal of state criminal charges by...
...But the notion that family life is a special danger to women is a twisted feminist fantasy...
...According to another recent study by the Bureau of Justice Statistics, men who kill their spouses are far more likely to be convicted than are female spouse-killers (only 6 percent of wife-killers are acquitted, compared with 27 percent of husband-killers...
...VAWA has a whole subsection called "Civil Rights for Women...
...Are we more shocked by "gender bias" than by murder...
...Simpson, there was no relevant federal statute on which to launch a new prosecution...
...VAWA provides a general civil remedy for victims of "crimes of violence motivated by gender" (so that victims can sue their gender-biased perpetrators in federal court...
...Simpson case could not be pigeon-holed into either of these federal statutes...
...The name is a give-away to the histrionic nature of this measure...
...The substantive prohibitions prohibit "gender bias," affirming a general "federal right to be free from crimes of violence motivated by gender"—rather than specifHas "equal justice" been sacrificed to the feminists...
...Acquitted by a predominantly black and Latino jury, Nelson was also retried on federal charges before a different jury and also convicted on the second go-round and given a severe prison sentence...
...If anyone needs protection from "violence," it is men...
...And why is it that we then deliver these fixes only to the groups with the political muscle to claim them...
...But the Clinton Justice Department has taken the cue...
...On the other side of the continent, Lemrick Nelson was charged in the fatal stabbing of Yankel Rosenbaum, a young Hassidic scholar, in the midst of anti-Semitic rioting in the Crown Heights neighborhood of Brooklyn, New York...
...Why is it that we only get criminal procedure reform, like federal retrial of failed state prosecutions, when organized political constituencies demand it...
...they may prosecute only such crimes that also involve the crossing of a state line...
...B ut these days it takes much less scandal for Congress to unleash federal prosecutors against the sorts of crimes usually handled by the states...
...policemen, the acquittal on state charges provoked several days of ferocious rioting by angry blacks in Los Angeles...
...But it is rather unclear who really suffers more from official "gender bias" in this area...
...Domestic violence" takes less of a death toll among men only in percentage terms, because men are, overall, three times as likely as women to be fatalities of violence...
...So why do we need this special federal back-stop for "domestic violence...
...In the most celebrated cases, however, federal prosecutors essentially have presented the same evidence regarding the same actions of the accused—but before a different and more carefully selected jury...
...But if it is good for juries to hear allegations of past misconduct by an accused rapist, why not also let juries hear about the past practices of accused muggers, terrorists—or politicians accused of bribery...
...The entrance to the Supreme Court building bears the inscription, "Equal Justice Under Law...
...Such assumptions are certainly understandable...
...Nelson was charged with interfering with Rosenbaum's right touse the public streets, where the murder took place...
...VAWA leaves these restrictive rules in place for every crime — except sexual assault and child molestation...
...In fact, Congress did not quite have the courage of its own bombastic rhetoric...
...The rules now allow evidence of past practice by the defendant to be presented to the jury in order to demonstrate "propensity" to commit the crime...
...It now has a special "Office of Violence Against Women" — headed, of course, by a woman, who boasts on her résumé that she was an official delegate to the Beijing Conference on Women's Rights...
...After their acquittal of state criminal charges by an all-white jury, they were retried on federal charges—before a more racially balanced jury—and sent to prison...
...The Justice Department's Office of Violence Against Women does not even try to minimize the altered perspective implied by this change in the rules...
...Federal prosecutors are not empowered to try (or retry) any person's "crime of violence" against "that person's spouse or intimate partner...
...Cases like this, where federal prosecutors get to retry a failed state prosecution, are still relatively rare...
...Is is true that, in the case of O.J...
...The theory is that such information would prejudice jurors, encouraging them to think the defendant was the sort of person who would do the crime or the sort of person who deserved to be punished anyway, no matter what the evidence in the case at hand...
...If we do this for some cases, why was this not considered, say, in the O.J...
...But the absence of other applicable statutes deserves notice in itself Congress has never enacted a generalized authorization for federal retrial of cases that don't come out right at the state level...
...It is true, as VAWA advocates proclaim (and as President Clinton emphasized in a 1995 proclamation on "National Domestic Violence Awareness Month"), that women are relatively more likely to be killed by family members or "intimates" than are men...
...In other contexts, that sort of stereotypical thinking could, in itself, be denounced as "gender bias...
...Now it may be that most juries will discipline themselves to focus on the precise evidence in the case at hand...
...The "past conduct," by the way, can be established by testimony of witnesses who never pursued their charges to police or prosecutors...
...The O.J...
...VAWA's champions insisted that it was necessary because state officials do not take domestic violence seriously—because they do not take seriously the concerns of women...
...So what if the defendant didn't commit the actual crime with which he is charged...
...Whether or not it is now a threat to American ideals of justice to deploy these statutes for prosecutorial appeals, everyone must acknowledge that these statutes were initially devised to deal with criminal-justice systems in the old South that were massively and blatantly racist, and a terrible stain on American justice...
...But they are becoming common enough for some legal scholars to express concern that we are gradually abandoning the Fifth Amendment guarantee against "double jeopardy"—that is, allowing the same defendant to be "twice put in jeopardy" of criminal penalties for "the same offence...
...Men also tend to get much longer prison sentences for such crimes (the spouse-killing average is sixteen years for men, six years for women...
...The likely reason for such disparities is that juries are more inclined to see a female killer as having acted in self-defense or in response to provocation, while they are more inclined to view a male perpetrator as a dangerous killer who will kill again if not punished...
...The federal statute under which the L.A...
...What young black men—by far the largest single category of murder victims —got from the 1994 Omnibus Crime package was midnight basketball...
...A federal appeals court is now weighing claims that this sweeping provision exceeds constitutional limits on federal authority...
...Rules of evidence in criminal cases usually forbid prosecutors from telling juries about the past misdeeds of the defendant...
...If we are going to obsess about "gender bias," the most evident bias in the jury system is anti-male...
...According to a 1993 study by the Bureau of Justice Statistics, women who are unmarried or separated are actually twenty-five times more likely44 These days it takes much less scandal for Congress to unleash federal prosecutors...
...The American Spectator • May 1997 51...
...That is the lesson of the Violence Against Women Act, one of the strangest elements in President Clinton's pork-laden 1994 anti-crime package...
...Is it just a slogan...
...Until quite recently, moreover, both of these exceptional federal statutes were almost always invoked to provide an initial, not a second prosecution— invoked, that is, to remedy the delinquency of Southern sheriffs and prosecutors, not Southern juries...
...It may also be that the existing rules are too restrictive...
...The Lemrick Nelson case was tried under a more expansive 1968 "civil rights" statute, which makes it a federal crime for private individuals to interfere, "by force or threat of force," with any other person's attendance at public schools or use of any other state facility "because of [that person's] race, color, religion or national origin...
...A recent Justice press release boasts that these changes will "provide the basis for informed decisions by juries regarding questions of propensity to commit future crimes in light of the defendant's past conduct...
...In absolute numbers, moreover, far more men than women are killed each year by family members or "romantic partners...
...Perpetrators of domestic violence are less likely than others to cross state lines in the course of their crimes, since their victims, by definition, are quite close to home...
...But that is stereotypical thinking...
...Yet all sorts of criminals cross state lines...
...Simpson case...
...But so what...
...M ore remarkable and more telling than VAWA's selective targeting of new federal jurisdiction are the very selective changes, enacted at the same time, to the federal rules of criminal procedure...
...Technically, the federal trials are not for the state offense of assault or murder but for the separate federal offense of "deprivation of rights...
...Most of them still get prosecuted by authorities in the state in which they committed the crime...
...In contrast, no organized political constituencies rallied to demand justice for the killing of Nicole Simpson and Ron Goldman...
...Men are, in general, more violent than women...
...Why were JEREMY RABKIN is a professor of government at Cornell University...
...Does it have something to do with the fact that a sizable part of New York's Jewish community mobilized to demand justice in the aftermath of the Crown Heights riot, triggering a political upheaval that ultimately helped to drive incumbents Mayor David Dinkins and Governor Mario Cuomo from office...
...the families of Simpson's victims left to pursue civil claims on their own, where they could win punitive financial damages but not have any chance to see Simpson sent to prison...
...50 May 1997 • The American Spectator ically targeting bias crimes against women in particular...
...Perhaps anticipating such objections, VAWA contains much more restricted criminal provisions, covering only "interstate domestic violence" --- a phrase that perfectly encapsulates the statute's weird combination of overreaching rhetoric and oddly legalistic restraint...
...to suffer violent attack than married women who live with their husbands...
...Does this have something to do with the fact that, in the case of the four L.A...
...True, most of the violence that is killing men is not the result of "gender bias...
...No previous Congress would have dared to name a "civil rights" measure as an "act for the special protection of blacks from racist violence...
...cops were tried descends from a "civil rights" measure enacted after the Civil War, and covers only "deprivation of rights" on "account of race" and "under color of state law" (meaning, by state or local government officials, like policemen...
Vol. 30 • May 1997 • No. 5
