1) the standoff between the State Solicitor of the State of South Carolina and federal prosecutors where the State Solicitor asserted that the trial schedule in federal prosecution interferes and impedes the state prosecution in the murder trial of Dylann Roof, who shot to death 9 people and injured 3 in June of 2015 in an African-American church, and
2) general jurisdictional requirements for a legitimate federal criminal charge - and quoted a U.S. Supreme Court that invalidated a criminal conviction because it was based on a federal statute that the U.S. Congress had no power to enact.
I will now analyze each of the statutes that Dylann Roof was charged with violating from the point of view of their validity.
Dylann Roof was charged under the following criminal statutes:
- 18 U.S.C. 247(a)(2), (d)(1)
- 18 U.S.C. 249 (a)(1)
- 18 U.S.C. 924(c )(1)(A);
- 18 U.S.C. 924(c )(1)(C);
- 18 U.S.C. 924 (j)(1), charging:
- Hate Crime Murder;
- Murder to obstruct free exercise of religion and affecting interstate commerce;
- Murder as defined in 18 U.S.C. 1111, with malice aforethought and using a firearm
There is no evidence that Dylann Roof had an intent to interfere with anybody's religious belief.
Dylann Roof shot up the church because it was convenient for his crime-planning, because Dylann Roof knew that the church was a place where, at a certain time, a large number of African Americans will be present.
His crime was a hate crime, but the prosecution will have a really hard time proving that Roof had an intent to interfere with the exercise of religion, and especially proving that beyond the reasonable doubt.
Moreover, subsection (b) which is incorporated into subsection (a) clearly indicates that Dylann Roof was chargeable with this crime is "in interstate or foreign commerce" or "affects interstate or foreign commerce".
And there lays another big problem for the federal prosecution. Worshiping activities cannot, by any stretch of imagination, be equated with interstate commerce, and, under U.S. v Lopez, claiming that committing a crime in a church somehow interferes with interstate commerce is too attenuated to provide for federal jurisdiction.
This statute, 18 U.S.C. 247, goes back, reportedly, to
"the Church Arsons Prevention Act, sponsored by Sens. Lauch Faircloth (R-NC) and Edward Kennedy (D-MA), and, in the House, by Reps.
Henry Hyde (R-IL) and John Conyers (D-MI), was originally designed solely to facilitate Federal investigations and prosecutions of these crimes by amending 18 U.S.C. 247, a statute enacted by Congress in 1988 to provide Federal jurisdiction for religious vandalism cases in which the destruction exceeds $10,000.
Hearings were held on both the impact of these crimes and the appropriate response of government.
Federal prosecutors testified that the statute's restrictive interstate commerce requirement and its relatively significant damages threshold had been obstacles to Federal prosecutions.
Following the hearings, Congress found that "[t]he incidence of arson of places of religious worship has recently increased, especially in the context of places of religious worship that serve predominately African-American congregations."
Legislators appropriately recognized that the nation's response to the rash of arsons should be more ambitious and comprehensive than mere efforts to ensure swift and sure punishment for the perpetrators.
In a welcome example of bipartisanship, both the House and the Senate unanimously approved legislation which broadened existing Federal criminal jurisdiction and facilitated criminal prosecutions for attacks against houses of worship, increased penalties for these crimes, established a loan guarantee recovery fund for rebuilding, and authorized additional personnel for BATF, the FBI, Justice Department prosecutors, and the Justice Department's Community Relations Service to "investigate, prevent, and respond" to these incidents. "
So, criminal federal jurisdiction for 18 U.S.C. 247 was invoked because something MORE than efficient prosecution of perpetrators was needed.
What MORE than efficient prosecution of perpetrators in a criminal case is needed?
And how does this "more" justify invocation of federal jurisdiction over a purely state crime, committed on a state territory, in a church?
But, that pronouncement, in and of itself, indicated that the statute is unconstitutional.
States already have, under the 10th Amendment, exclusive police power over crimes committed in their territories, and exercise that power for the efficient prosecution and punishment of perpetrators of such offenses.
That was the power recognized by the U.S. Supreme Court in U.S. v Lopez in 1995 when the U.S. Supreme Court affirmed dismissal of a conviction based on the Gun-Free School Zones Act of 1990.
In fact, as Dylann Roof's case shows, the State of South Carolina's efforts to prosecute Dylann Roof is impeded by federal prosecution, where the defendant is trying to use the federal prosecution (based, likely, on unconstitutional statute enacted, in its criminal part at least, without any congressional authority) to delay and/or impede state prosecution which hurts, not helps the victims and hurts, not helps, the necessary prosecution of a HEINOUS crime - murder of 9 people and injury to three people.
Same as schools were held in U.S. v Lopez have nothing to do with interstate commerce, churches also have nothing to do with interstate commerce, or with commerce of any kind.
In fact, the Christian religion asserts that the church does not have ANYTHING to do with ANY commerce - where Jesus Christ has actually cleansed the Temple of merchants and money-changers.
Worship is a spiritual activity which has nothing to do with commerce, interstate, foreign or otherwise.