The ACRU Blog

The Washington Post editorialized in its on-line edition yesterday in favor of the Hate Crimes bill recently passed by the House. The editorial is well wide of the mark, but in order to allow readers to draw their own conclusions, I repeat the editorial in full below before stating the bases of my disagreement with it:

"THE LOCAL Law Enforcement Hate Crimes Prevention Act of 2007 (HR 1592) cleared a major hurdle this month when the House of Representatives passed the bill, 237 to 180. Why is this a big deal? Because if it passes the Senate, which could vote on it next month, and gets past a threatened presidential veto, sexual orientation, gender, gender identity and disability would join race, religion and national origin as protected classes under the 1969 federal hate-crimes law.

"This bill has been rattling around Congress in one form or another for nearly 10 years. As time passed, it evolved and incorporated good ideas from both sides of the aisle. And while we have long opposed the inclusion of gender and disability, we believe the bill is worthy of support overall. Under the current hate-crimes law, federal prosecution is permitted only if the offense occurred while the victim was engaged in a federally protected activity, such as voting or going to school. This bill would eliminate that requirement. To ensure that the law would be used only in exceptional circumstances, the U.S. attorney general or key senior Justice Department officials must certify in writing that state and local law enforcement were consulted and that the state lacked jurisdiction or did not intend to exercise it, requested federal assistance or did not object to federal intervention. And the bill would provide financial assistance to local law enforcement agencies investigating hate crimes under their own laws.

"Opponents warned that HR 1592 would enhance penalties for hate crimes against gays and lesbians, for instance. Truth be told, there have been increased penalties for federal hate crimes based on sexual orientation, as well as the other protected classes, including ethnicity, since the passage of the Hate Crime Sentencing Enhancement Act of 1994. Opponents warned that the bill would prosecute people for "thought crimes." Not true. This bill has nothing to do with thoughts and everything to do with violent action motivated by hate.

"And then there are opponents such as Rep. Doc Hastings (R-Wash.), who said after HR 1592 passed, "If someone commits a crime, they should be punished for that crime. Period." So true. But crimes that target someone because of his or her race or sexual orientation are more than an offense against that individual. They are crimes that terrorize whole communities."

The editorial reflects sloppy thinking on several fronts. First and foremost, it fails even to attempt to answer the principal objections to hate crimes legislation. As I have noted earlier, these statutes introduce identity-group politics into law, where it has no business. And its intrusion in this instance is certain to be divisive in the worst possible sense, because it sends the Orwellian message that, before the bar of justice, where all are supposed to be equal, some are more equal than others. Such legislation also Balkanizes the culture of law, telling our citizens that, depending on the politics of the moment, criminal depredations against some groups are taken more seriously by society than identical depredations against different, "less valuable" groups.

Second, the editorial is self-contradictory, although understandably its authors muffle this fact. Specifically, the editorial notes that the Post "has long opposed the inclusion [in hate crimes legislation] of gender and disability..." -- but it never explains why. I believe this is because the reasons for opposing special treatment for gender- and disability-related crimes are essentially identical to the reasons for opposing special treatment for other groups: there is nothing either more appealing or less blameworthy about assaulting someone because of his race than because of his gender. But the Post simply glides past this point.

Third, the editorial assumes, but never demonstrates, that it's a good thing to eliminate the federal jurisdictional requirement that the offense occur while the victim is engaged in a federally-protected activity such as voting. In fact, the elimination of this requirement is problematic on both policy and legal grounds. As a matter of policy, its elimination would expand the already troubling trend toward making more and more crimes of thuggery -- traditionally and for good reason left to the states to punish -- federal matters. There is virtually no evidence that the Framers envisioned such a bloated version of federal criminal law (which they themselves declined to enact). As a matter of law, the elimination of the federal activity requirement creates a significant question whether the bill overreaches the permissible scope of federal power as defined, for example, in the Lopez case (striking down the Gun Free Schools Zone Act).

Fourth, the editorial all but admits that the current legislation is unnecessary and duplicative, quite apart from its other difficulties. Thus, the Postgives away the game when it says, "Truth be told, there have been increased penalties for federal hate crimes based on sexual orientation, as well as the other protected classes, including ethnicity, since the passage of the Hate Crime Sentencing Enhancement Act of 1994." So why exactly do we need more of the same thing now?

Fifth, the editorial says that the bill "has nothing to do with thoughts and everything to do with violent action motivated by hate" (emphasis added). But of course the motivation is precisely a thought, as the Post would have realized with even brief reflection.

Finally, the editorial concludes with a breast-thumping assertion that "crimes that target someone because of his or her race or sexual orientation are more than an offense against that individual. They are crimes that terrorize whole communities." There are two problems with this view. The first is that it is manifestly false (and of course no actual evidence is offered to support it). Precisely because they target only segments of the population, hate crimes -- for however ugly and menacing they are -- do not "terrorize whole communities." Beyond that, the Post's conclusion misapprehends the nature of criminal law itself, which, unlike tort law, always is addressed to the harm to the community rather than to an individual.

The House of Representatives has just passed a federal bill on "hate crimes," which seems headed for a White House veto, if it manages to pass the Senate. This has heightened attention to the half of the several states which also have "hate crime" laws.

There are only two things wrong with the state laws: they are useless and arbitrary. There is a third problem with the federal version. It violates the Constitution.

Every "hate crime" law is based on the commission of an ordinary crime. Attacking, harming, or killing any citizen IS a crime to begin with. Damaging someone's property, whether burning a cross on someone's lawn or any other means, is a crime. People who commit such crimes are routinely tried, convicted and punished, whether or not the jurisdiction has a "hate crime" law.

Judges have some discretion in passing sentences, and legislatures have authority at any time to increase the penalties which judges can, or must, impose. All that "hate crime" laws do is increase the penalty depending on the categories of the criminal and the victim. As if anyone murders anyone else because they love them, rather than hate them, though O.J. Simpson comes to mind.

These laws are also arbitrary, because both prosecutors and press focus on "hate crimes" against blacks by whites, but not the reverse, or against homosexuals by heterosexuals, but not the reverse. So, the published statistics on "hate crimes" are no better than the quality of the reporting, which is dubious at best.

The last point about the proposed federal law is that criminal law is a state matter. Other than crimes against federal personnel or property, the definition of what acts are criminal and what penalties should be applied, belongs to the state legislatures, not to Congress. So said Madison, Hamilton and Jay in the Federalist papers, and they were right.

The bottom line is this: "hate crime" legislation is political pandering for votes from whatever group is apparently benefited by being named as a protected group. This will continue until the vast majority of Americans realize that the reverse is true. Such laws necessarily say to most Americans that it is less important to the government and the courts if your property is damaged, or you are attacked, or a member of your family is killed.

For now, that message is being sent to the American people by the House of Representatives through the bill they have just passed.

The motto "Equal Justice Under Law" is inscribed above the grand entrance to the Supreme Court. Presumably these words are intended to describe what goes on inside. If the hate crimes bill adopted by the House yesterday becomes law, however, something very different will be going on.

Few people doubt that truly hideous crimes, like the murder of James Byrd (a black man chained by three white thugs to the back of a pickup truck and dragged through the streets until he died) deserve severe punishment. To me, that means the death penalty -- and at least one of Byrd's killers got exactly that, ACLU opposition to capital punishment notwithstanding.

What this shows is that we don't need a hate crimes statute to allow courts to impose punishment that will send a message. Such statutes are misguided, however, not simply because they are unnecessary, but because they eat away at the foundations of even-handed justice.

These statutes introduce identity-group politics into law, where it has no business. Its intrusion is certain to be divisive in the worst possible sense, because it sends the Orwellian message that, before the bar of justice, where all are supposed to be equal, some are more equal than others. Such legislation also Balkanizes the culture of law, telling our citizens that, depending on the politics of the moment, criminal depredations against some groups are taken more seriously by society than identical depredations against different, "less valuable" groups. We heard enough of that in the Jim Crow era. We don't need an echo of it now.

James Byrd did not deserve justice because he was a black person. He deserved justice because he was a person. For dealing with criminals and killers, that's what we know, and that's all we need to know.