Is Hate a Crime?
- “The hate crime bill outlaws thought.”
- “The hate crime bill outlaws speech.”
- “Does it make a difference what they were thinking?”
- “Assault and murder are already against the law. This is just an expansion of powers.”
It’s time for another one of those posts in which I take an argument that’s been getting repetitive (very repetitive) and put the whole thing in one place in the hopes of moving forward instead of arguing in parallel. In this case, we’ve been talking about hate-crime legislation, specifically the bills that have passed in the House and are under consideration in the Senate that would extend the existing definition of hate crimes to cover crimes motivated by the victim’s sexual orientation, gender identity or disability.
The four quotes at the top of the post summarize the objections I’ve seen to the law. Well, the sane objections anyway. I’m not counting the people who argue that the law would protect pedophiles under sexual orientation (“sexual orientation” under federal law has a very strict definition) or who make it clear that they think anything that happens to homosexuals is fine with them. No, these are just the legitimate, if misguided, objections to the bill, and it’s time to tackle them in one place.
“The hate crime bill outlaws thought.”
I understand the thought behind this one. If we call it a “hate crime,” doesn’t that make hate a crime? Well, no. These bills establish a federal interest in already-existing crime that is motivated by specific types of bias. That is all they do.
This claim doesn’t hold up even under the quickest reading of the proposed law. The penalties described under the bills apply to someone who “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”. That’s several steps beyond thought.
In fact, the Senate version of the bill ends, “Nothing in this Act shall be construed to allow prosecution based solely upon an individual’s expression of racial, religious, political, or other beliefs or solely upon an individual’s membership in a group advocating or espousing such beliefs.
“The hate crime bill outlaws speech.”
It may seem redundant to consider this objection separately from the prior objection. Speech doesn’t cause bodily injury any more than thought does, and the Senate version of the bill specifically clarifies that bodily injury “does not include solely emotional or psychological harm to the victim”. Speech is not considered a “dangerous weapon” under the law.
However, there are those, including the ACLU, who are concerned about protections of speech under this law. This is separate from conservative concerns that a pastor who preaches that there is a religious basis for bias could be found guilty of inciting a crime. Both bills specifically state that First Amendment rights are not revoked by passage of the law, and this would include the religious protections offered by the First Amendment.
Rather, this is a technical objection on the part of the ACLU. Specifically, they are concerned that speech or association (ages-old visits to websites, for example) that isn’t connected with a crime could be used as evidence of bias. Nor is the ACLU lobbying to keep the law from passing. They are simply making a statement that they feel the House version of the First Amendment protection, being more specific about rules of evidence, is the version that should remain when the bills are reconciled in conference.
“Does it make a difference what they were thinking?”
This argument comes from those who understand that this legislation only affect existing offenses. The suggestion is that all crime should be treated equally. Motivation shouldn’t be taken into consideration.
The problem with that idea is that we already do take motivation under advisement. This is why murder one (premeditated, deliberate death) is separate from manslaughter (death caused through actions not intended to kill). The standards of proof are different and so is the punishment handed out.
From a strictly preventive point of view, this distinction between crimes makes sense. Someone who intended to cause harm and took steps to make that harm happen has had every opportunity to turn away from committing a crime. They didn’t stop. It isn’t unreasonable to decide that such a person is less likely to stop the next time they are tempted to violence than someone who has committed violence out of carelessness.
Someone who hurts or kills another person because this person is homosexual will have many, many more opportunities to interact with homosexuals over time. If the victim’s sexual orientation is all that’s required to incite violence, this is a dangerous criminal indeed.
The criminal’s motivation is also relevant in terms of the effect such crimes have on society as a whole. The intent of bias crimes is to send a message to a group that they will not be tolerated. As such, the number of victims of a crime motivated by bias is much larger than the number of people being injured.
U.S. law has already recognized the interest of the federal government in dealing with crimes intended to intimidate and coerce beyond their immediate victims. Federal law addresses such crimes under RICO (Racketeer Influenced and Corrupt Organizations Act) when they are motivated by profit. These bills address a smaller group of crimes when motivated by bias.
“Assault and murder are already against the law. This is just an expansion of powers.”
Assault and murder are indeed already against the law. Judges do indeed already have the scope to consider circumstances when setting sentences. This is why federal jurisdiction under these bills is limited. The exact wording will need to be hashed out in committee, but in short, federal jurisdiction for hate crimes occurs only when the state doesn’t have jurisdiction over the crime (e.g., it happens across state lines), the state doesn’t exercise its jurisdiction, or “the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence.
It’s the last two circumstances that are particularly important. The criminal justice system is as prone to bias as any other organization. Judges may refuse to consider bias. Prosecutors may refuse to present evidence of it. Police departments may refuse to investigate, or they may be the source of the bias. Hate crimes legislation will expand the scope of the federal justice system, but it won’t do so in any way that our society has not already determined to be justified to preserve civil rights.
Those are the big objections I keep hearing to the hate crimes bills. I’ve answered them here, not to end debate on the bills, but to clear the way for further discussion. I do like a good argument, but I get tired of having the same argument over and over. Where does this argument go from here?
This entry was posted on Friday, July 24th, 2009 at 7:56 am and is filed under Politics, Stephanie Zvan. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.