Yesterday, the senate passed the Local Law Enforcement Hate Crimes Prevention Act. There’s been a bunch of controversy around this bill, but most of the opinion around it seems terribly uninformed. I believe the are cases for, and against, hate crimes legislation, but before that, it’s important to clear up the biggest myths about hate crimes laws.
Myth: Hate crime laws create ’special’ protected classes.
Fact: Every aspect of the act covers every person in the U.S.
As written in the act, no specific group is protected. There is no mention of the word gay, black, Asian, female, Jewish, etc. anywhere in the act. The act provides provisions for offenses involving *classes* of personal attributes:
(1) OFFENSES INVOLVING ACTUAL OR PERCEIVED RACE, COLOR, RELIGION, OR NATIONAL ORIGIN- Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person – [it then outlines the specific punishments associated with the crime]
(2) OFFENSES INVOLVING ACTUAL OR PERCEIVED RELIGION, NATIONAL ORIGIN, GENDER, SEXUAL ORIENTATION, GENDER IDENTITY, OR DISABILITY-
‘(A) IN GENERAL- Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerouse weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person – [it then outlines the specific punishments associated with the crime]
Everyone has a race, color, religion (or lack of), sexual orientation, gender, national origin and so on. Everyone is protected by this act, if the crime committed is motivated by the characteristic provided for in the act. It doesn’t matter who the victim and assailants are. If the motivation of assailant includes the victim’s race, color, religion, etc. the assailant is subject to the provisions of this act.
If a gay man attacks a Christian woman, because she is Christian, or a woman, he is subject to the punishment for the attack, and the punishments in this act.
If a gay man attacks a Christian woman, without concern for her gender or religion, he is subject to the punishment for the attack alone.
This applies to any combination of assailant and victim – white on black, white on white, Jew on Muslim, Native American on lesbian, and so on – so long as the crime is motivated by a characteristic covered by the act.
It’s also important to remember that this act is not new. Only the provisions of sexual orientation and gender identity are new. The provisions of these laws have covered the other characteristics for some time now. It’s fairly transparent that opponents of this specific bill are concerned not about hate crimes in general, but against the provisions for sexual orientation and gender identity. This leads to the other big myth that I’ve heard.
Myth: The act makes people subject to “thought crimes.”
Fact: The only provides punishment for a person who “…willfully causes bodily injury…” or using a weapon “…attempts to cause bodily injury…”.
The bill doesn’t provide any form of punishment unless there is an associated act of bodily injury. It calls into question the motivation of the act, and can provide for additional punishment, beyond the punishment of the act alone, based on that motivation. The bill (as I read it) also provides clarification in subsection (e) that requires the evidence of hate is expressed in that particular offense:
(e) Rule of Evidence- In a prosecution for an offense under this section, evidence of expression or associations of the defendant may not be introduced as substantive evidence at trial, unless the evidence specifically relates to that offense…
So if you spent the day protesting the St. Patrick’s day parade, and later that night you kill someone robbing your house who is Irish, you should not be subject to the hate crime law unless it can be proved that during the act of killing the robber you were also expressing your hate for Irish people, and would not be evidenced by your protest earlier alone.
This question of motivation leads to my case for and against.
My Case FOR Hate Crimes Laws
Different crimes are different, and individual crimes are not black or white. Stealing candy and murdering someone are not the same crime, and deserve different punishments.
All murders are not the same crime either. That is acknowledged by the fact that we have statutes that cover degrees of murder. Killing someone because you ran off the road while texting someone on your cellphone is a different crime than hunting someone down for the pleasure of killing them.
In both cases you’ve killed a person, but it would be hard to argue that the driver is as big a threat to society as the pathological murderer. As such, the punishment should be different, both for the sake of the criminal and for society’s well being.
With that foundation, I can see an argument for hate crimes laws. If you are a person who is more likely to assault a Muslim because you generally hate Muslims, then you are arguably a greater threat to society than if you’re likely assault someone because they, say, accidentally stepped on your foot, regardless of their religion.
Society is better off when you can walk down the street, minding your own business, and not be in fear of bodily harm simply because of the characteristics that make you who you are. If hate crimes laws make that more possible, then I can certainly see their place.
My Case AGAINST Hate Crimes Laws
I can see two very reasonable arguments against hate crimes laws.
The first is the question of establishing motivation. People hurt other people for all kinds of reasons and knowing why they hurt each other is not always readily apparent.
There is no clear, objective statement in the act for what constitutes the motivation required for prosecution under the act. It would be pretty impossible to write such a statement. The act establishes only this:
(1) [The Attorney General or other officer with the certification required] has reasonable cause to believe that the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of any person was a motivating factor underlying the alleged conduct of the defendant…
If motivation is difficult to establish and potentially highly subjective, and establishing it is key to establishing a punishment that will affect the assailant – it has the potential for mistakes and those should be avoided.
The second question is one of prevention and retribution. Different crimes are different, and there are at least two reasons why their associated punishment is different. A stiff penalty provides proportional retribution to the victim more than small penalty. A stiff penalty should also provide an inversely proportional incentive for committing a bigger crime. That is…
The fine for speeding is $100 because we don’t want people to speed. The fine for DWI is jail, money and losing your license because we REALLY don’t want people to drive drunk. (Even if their caught doing it without having done something that immediately harmed another person).
When I look at a hate crimes law I ask myself about this question of prevention and retribution. Are the victims of hate crimes, or society, better off because their assailants spend more time in jail? The “FOR” argument assumes that at least society is. If you can assume that you’ve passed the hurdle for establishing motivation, then sure, society is better off with someone who’s motivated to harm people based on hate in jail. But… I don’t have any evidence to say that that is true.
What I also don’t see any evidence for is the case of prevention. Are people who commit hate crimes less likely to commit the crime because they know that the penalty could be more severe? I don’t know if there is any evidence for this specifically, and I’d guess that such evidence doesn’t exist. I imagine that hate crimes happen out of a spark of passion that circumvents the same reasoning required to determine that the punishment is not worth it.
I also look at the arguments against the death penalty which cite data that suggests that knowing you could be killed as a result of your crime is not a significant enough demotivator to prevent someone from committing a crime they would have otherwise.
If that establishes that the degree of the penalty is not enough to prevent the crime over and above the established penalty, the goal of prevention isn’t met. If the goal of prevention isn’t met, and the question of retribution is also not evidenced, then what value would the law have?
