When Dylann Roof, the white man accused of killing nine black people in a church in Charleston, S.C., was charged with 33 federal violations last summer, including hate crimes, Attorney General Loretta Lynch said “this is exactly the type of case” that laws barring hate crimes were intended to cover.
But nearly a year after Ms. Lynch’s announcement amid debates about why Mr. Roof wasn’t charged with terrorism, his lawyers are now attempting to challenge the constitutional validity of those charges. Their argument calls into question not only the charges brought against Roof, but the federal government's latitude in issuing hate crime charges.
The hate crimes law “affords the federal government virtually unchecked discretion to prosecute crimes already being punished by the states,” writes Sarah Gannett, a federal public defender on Roof’s defense team, in a filing on Tuesday.
In a case that has faced a variety of delays, the effort is part of a legal strategy, which the Associated Press calls a “longshot,” that his defense team says they will drop if prosecutors agree not to pursue the death penalty.
They’re arguing that the federal hate crimes charges infringes on the state’s separate murder trial, which is due to begin after the federal case, in January 2017. South Carolina does not have a hate crimes law of its own.
The effort hinges on a debate about whether the federal hate crimes law violates the Constitution’s Commerce Clause, which gives the federal government the ability to charge someone with a federal crime if it involves interstate commerce, or crossing state lines.
In the case of Roof, his defense team argues that all the alleged crimes took place in South Carolina, while the only links to areas outside the state “are the use of the internet and use of a gun and ammunition that had been manufactured out of state.”
Prosecutors say Roof had scoured white supremacist websites, posted a racist manifesto, and told a friend of his intention to start a race war. They say he then visited the Emanuel AME church in Charleston, S.C., where he sat in on a Bible study and killed nine participants.
The hate crimes law has been challenged before on similar grounds. In one case, several Amish men were charged with federal hate crimes for forcibly cutting off the beards and hair of several people who they accused of being “Amish hypocrites.”
In that case, the Justice Department said the followers of a man named Samuel Mullet Sr. could be prosecuted for a federal crime because “the Defendants used scissors and hair clippers, which had traveled from out of state into Ohio, to carry out the assault,” according to US District Court of the Northern District of Ohio, which upheld the men’s convictions.
Jonathan Adler, a law professor at Case Western Reserve University, criticized the government’s case in a Washington Post column in 2014. The government’s theory “implies a nascent federal police power ... without meaningful limits” for items that had traveled in interstate commerce, he wrote.
The Sixth Circuit Court of Appeals later struck down the men’s convictions, a decision which prompted criticism from Martin Lederman, a former Justice Department official and professor at Georgetown.
As a Justice Department official, Professor Lederman had argued that the government’s federal hate crimes law would be constitutional.
Under the 13th Amendment, he wrote in a 2009 memo, Congress has authority “to punish racially motivated violence as part of a reasonable legislative effort to extinguish the relics, badges and incidents of slavery.” He didn’t respond to a request for comment from the Christian Science Monitor.
Attorneys for Roof, 22, have continued to maintain that he would plead guilty in exchange for life in prison, but federal and state prosecutors have pushed for him to face a possible death sentence.
Prosecutors have until July 25 to respond to the defense attorneys’ motion to have Roof’s federal charges dismissed. On Thursday, Circuit Judge J.C. Nicholson scheduled a hearing to determine whether the state should try Roof before the federal government.
State prosecutors are also seeking the death penalty, with Ninth Circuit Solicitor Scarlett Wilson arguing that federal authorities are less likely than South Carolina to execute someone, the Post and Courier reports.
Ms. Wilson has pushed for a new trial date before the start of Roof’s federal trial, a move that defense lawyers have called “reckless” and say risks violating his due process rights, the paper reports. The hearing is scheduled for next Wednesday.