Several of my recent posts have addressed issues related to hate crimes. Obviously, the Roof conviction and upcoming federal death penalty hearing has made that case the leading hate crime story nationally of late. But it seems helpful to note the latest hate crime story of interest, also from the deep South. Like others, it raises important questions about the federal role in prosecuting violent crimes committed with a bias-motivation. As the Justice Department announced here, a Mississippi man yesterday pleaded guilty to brutally killing his former romantic partner because she was transgender, and in order to avoid the wrath of a violent street gang.
According to the DOJ and the defendant’s statements at the plea hearing, Joshua Vallum had been dating Mercedes Williamson, then 17. Vallum knew that Williamson was transgender but he kept this a secret from his family and friends. Vallum was also a member of the Latin Kings. The relationship ended and for about nine months, Vallum had no contact with Williamson. Vallum learned, however, that one of his friends found out that Williamson was transgender. Believing that he would be harmed if the Latin Kings also discovered that he had been dating a transgender person (the gang has strict rules about homosexuality, and Williamson’s birth gender was male), Vallum decided to kill Williamson.
After driving her from Alabama to Mississippi, he shocked her with a stun gun, and stabbed her repeatedly with a pocket knife. Williamson was able to escape from the car where Vallum had stabbed her, but Vallum gave chase and stabbed her again in the head (he believed he had “hit brain”). Although Williamson was still able to stumble into some woods, Vallum again caught up to her and hit her repeatedly with a hammer, killing her.
This case gained special national prominence after Caitlyn Jenner remembered Williamson during Jenner’s 2015 speech at the ESPY awards.
Vallum had already been convicted in Mississippi state court of murder and received a life sentence. But, as has been true in other cases, the Feds believed that it was necessary to pursue a federal prosecution because Mississippi does not have a hate crimes statute for which gender identity is a protected category. Thus, in the language of both the relevant statute (the Shepard-Byrd Act, 18 U.S.C. 249) and the DOJ’s Petite Policy, the state prosecution left the specific federal interest “unvindicated.” It is an open question whether the Trump Administration will take a similar view of how federal interests become vindicated by state prosecutions.
Vallum now faces another life sentence, this time in the federal system. As I have discussed elsewhere, there is no death penalty under the Shepard-Byrd Act, though I believe this case and others demonstrate why there ought to at least be that option for federal juries in section 249 cases involving brutal killings like this one.
But that raises another question: why not also charge Vallum with murder in aid of racketeering (18 U.S.C. 1959)? The VICAR statute reaches murder committed for the purpose of “maintaining or increasing position” in a racketeering enterprise. If the Government’s theory is that Vallum killed Williamson not simply to avoid harm by the Latin Kings (surely a “racketeering enterprise” as defined in VICAR), but in order to remain a member of the Latin Kings, then this would seem to provide sufficient evidence to charge the VICAR offense. That is notable because a killing under VICAR – unlike the Shepard-Byrd Act – does permit the death penalty.
I have not seen the Vallum indictment. Perhaps it does contain a VICAR charge, and that charge was dismissed as part of the plea agreement to the hate crime. If it was not included, perhaps the theory would be that Vallum committed the killing not on behalf of the Latin Kings, or because of a desire to maintain his position in the Latin Kings, but only because of Williamson’s gender identity and his fear of the gang’s enforcement. But it seems hard to neatly separate his killing of Williamson on account of her gender identity from his interest in maintaining a place within the gang – arguably, he did one to preserve the other. And that is precisely what VICAR forbids.
Finally, because this prosecution was based on section 249(a)(2), which is justified only under the Commerce Clause, there is a reasonable question as to whether the federal government properly had jurisdiction in the case. But the statute easily answers that problem, at least as a matter of statutory application. It specifically permits federal jurisdiction where there was travel across state lines, see 18 U.S.C. 249(a)(2)(B)(i)(I), and that was the case here. Perhaps Vallum could have argued that the travel from Alabama to Mississippi was too attenuated from the killing to be justified under the Commerce Clause, but I doubt such an argument would go very far. The statute also permits federal jurisdiction where the defendant uses a dangerous weapon or other weapon that has traveled in interstate commerce, or where the defendant used a “channel, facility, or instrumentality” of commerce “in connection with” the prohibited conduct, or where the prohibited conduct otherwise affects commerce. See 18 U.S.C. 249(a)(2)(B)(ii)-(iv).
Still, in a different case, depending upon the facts, it could make sense to question whether some of these jurisdictional elements are enough to satisfy the Commerce Clause. Watch for a hate crime case presenting a viable challenge to the jurisdictional element and the scope of congressional power.