The horrific events in Charlottesville yesterday have prompted a number of important questions associated with the political and moral necessity of condemning the evils of white supremacy and political violence: why did the President fail — once more — to specifically condemn white supremacy and explicitly disavow fascist and racist supporters? Will Republicans condemn the President’s anemic and equivocal response? Should we call this domestic terrorism, and why would that matter? Those are worthy questions.
Now that one person is in custody related to the car crash that killed a 32-year-old woman, however, it is also important to begin looking at the criminal law questions, as well as the political ones. The Justice Department — after an appropriate statement of condemnation from Attorney General Sessions — announced that it has opened a civil rights investigation. It is early, and we need to await more evidence before arriving at any conclusions about charges or guilt. Still, what might the Feds be looking for?
Most likely, investigators will focus on whether there was a conspiracy to violate civil rights of anyone, including the counter-protesters, pursuant to 18 U.S.C. 241. Investigators will also likely focus on 18 U.S.C. 245, which targets actions against those engaged in certain specific federally-protected activities; whether anyone was intentionally obstructed in the free exercise of their religion, pursuant to 18 U.S.C. 247; and whether this was a violent hate crime, pursuant to 18 U.S.C. 249. These latter three charges, in particular, would require evidence that the person had acted with some specifically proscribed animus, such as racial or religious animus. With respect to the car incident specifically, because death resulted from the actions of the driver, capital punishment is available under sections 241, 245, and 247, but not section 249, if those statutes applied.
But the Feds may not need to rely solely upon civil rights enforcement statutes here. For example, 18 U.S.C. 33 makes it a crime for any person, acting “with intent to endanger the safety of any person on board” or “with reckless disregard for the safety of human life,” to damage, disable or destroy any motor vehicle “used, operated, or employed in interstate or foreign commerce.” Section 33 also makes it a crime to, “with like intent,” disable or incapacitate “any driver or person employed in connection with the operation or maintenance of the motor vehicle, or in any way lessen the ability of such person to perform his duties as such.” The video and photographic evidence from the scene in Charlottesville strongly suggests that Section 33 is a potential avenue for prosecution, though this would also depend upon other factors, such as evidence to prove the jurisdictional element (though that should ordinarily not prove to be difficult).
Section 33 does not specifically employ capital punishment, but it need not. Section 33 is a part of Chapter 2. This is important because Section 34 provides that the death penalty applies to anyone convicted of a crime listed in Chapter 2, where the crime has resulted in a person’s death.
Another important question that remains is whether the driver is a member of, or acted on behalf of or at the direction of or in an effort to become a member of or increase status in, some specific entity, organization or association-in-fact. If so, this could potentially implicate the racketeering laws, notably the violent crimes in aid of racketeering (VICAR) statute, 18 U.S.C. 1959. Unlike the RICO statute (sections 1961 and 1962), VICAR provides for capital punishment. Of course, in addition to proving the underlying conduct, the Government would need to prove that the entity met the statutory definition of a racketeering “enterprise.”
Finally, it is worth noting that any mention of capital punishment is subject to both the procedural prerequisites of 18 U.S.C. sections 3591 and 3592, as well as the DOJ’s death penalty protocol.
Virginia has proven itself more than capable of handling high-profile homicide cases. But in recent years, we have also seen the Justice Department take the position that federal action is required when civil rights enforcement is at stake. It will therefore be important to find out whether investigators can uncover evidence of animus, or other evidence, that would be sufficient to implicate the federal civil rights statutes in Title 18. But even without the civil rights statutes in play, federal prosecutors still may have an avenue for federal action, depending upon what the investigation reveals. The question would then be, as it often is, whether the Feds would be content to let Virginia handle the case alone, whether Virginia would defer to the Feds, or whether there would be dual prosecutions, in which case the Feds would have to assert a unique federal interest that would not be vindicated by the state prosecution. If the civil rights statutes are implicated, and if prior similar cases are any guide, the chances of a federal prosecution are very high.