THEY WERE CRIMES that shocked the nation.
On 7 June 1998, three white ex-convicts in Jasper, Texas, chained a 49-year-old black hitchhiker to the back of a pickup truck and dragged him down a rough rural road to his death, his mutilated body parts leaving a trail nearly three miles long. Four months later, in Laramie,Wyoming, a young gay man was lured from a student bar, driven out of town, beaten with a blunt instrument until his skull collapsed, hog-tied to a fence, and left for dead.
The murders of James Byrd Sr. and Matthew Shepard scandalized and horrified Americans. Each drew enormous media attention and each was promptly seized upon as proof of the need for more and stronger laws to punish "hate crimes". Violence that stems from bigotry and intolerance, it was said, is worse than other kinds of violence. In President Bill Clinton's words: "Crimes that are motivated by hate really are fundamentally different and I believe should be treated differently under the law."
It is an argument that has met with much success. By 1998 hate crime legislation -- laws increasing the punishment for a given crime when the offender acted out of certain specified types of prejudice or bigotry -- was in force in 41 of the 50 US states. Limited hate crime laws were in force at the federal level, too: the Hate Crimes Sentencing Enhancement Act and the Violence against Women Act, for example. In 2000 and 2001 the US Senate (although not the House of Representatives) voted to expand sharply the federal government's authority to prosecute crimes stemming from bias, and to reach not only crimes based on race, color, religion, or national origin, but those motivated by the victim's sexual orientation or disability as well.
Yet notwithstanding their popularity, hate crime laws are badly misguided. The assumptions on which they are based do not stand up to scrutiny. And their ultimate effect will be to cause more damage than they prevent.
HATE CRIME LAWS are grounded in the conviction that attacks motivated by bigotry are more serious than attacks stemming from other motivations. Certainly it is bad to be beaten by an attacker because he wants your money, the advocates of these laws say, but it is worse to be beaten by an attacker because he hates people of your color or religion or sexual orientation. And since a worse crime deserves a worse punishment, it is appropriate to increase the penalties meted out for hate crimes.
But is the premise really true? Is bigotry a more reprehensible motive than greed? Than lust? Than ideology? Than a desire to humiliate? It is hardly obvious that a hit man who murders for money or a serial killer who does it for a thrill poses less of a threat to society -- and therefore deserves less of a punishment -- than someone who murders out of prejudice.
Hate-crime laws declare, in effect, that the blood of a man attacked by a bigot is redder than that of a man attacked by a sadist or a thief. But what is the case for saying so? Do the children of a man murdered because he had $50 in his pocket grieve less than the children of a man murdered because he was black? Does the victim suffer less? If James Byrd had been dragged to his death by three black men, would his murder have been any less monstrous? In a society dedicated to the ideal of "equal justice under law" -- the words are engraved over the entrance to the Supreme Court in Washington, DC -- it is unjust and indecent for the statute books to enshrine a double standard that makes some victims more equal than others.
Typically, supporters of hate crime laws justify the added penalties by claiming that the attacks cause added harm.
"Hate crimes are a form of terrorism," said Senator Edward Kennedy of Massachusetts at a legislative hearing in 1998. "They have a psychological and emotional impact which extends far beyond the victim. They threaten the entire community, and undermine the ideals on which the nation was founded."
Professor Kent Greenawalt of the Columbia University Law School makes a similar point: "Such crimes can frighten and humiliate other members of the community; they can also reinforce social divisions and hatred."
These observations are true, of course. But they are true of all violent crime. Every murder, every rape, every mugging victimizes more people than just the victim himself. That is one reason criminal prosecutions are always conducted in the name of the citizenry: People v. Gacy, United States v. McVeigh, Commonwealth v. O'Neal.
No reasonable person would deny that a violent crime committed against a member of a minority group can strike terror in the hearts of other members of that group. But non-hate crimes can do so as well. The kidnapping and murder of a child, the rape of a jogger in a public park, a drive-by gang shooting, the mugging of an elderly woman: don't these too "have a psychological and emotional impact which extends far beyond the victim" to "threaten the entire community"? It is not easy to see why the fear and menace felt by one segment of society -- Jews, say, or blacks -- warrant the imposition of an extra-severe sentence, while the fear and menace felt by another segment -- senior citizens or residents of public housing or parents -- don't.
Hate-crime laws create an indefensible double standard: There is no way around it. A statute that imposes harsher penalties for hurting certain kinds of people proclaims by definition that hurting other kinds of people isn't quite as bad. Thugs who like to beat up Jews or Hispanics are on notice that the criminal code will increase their sentence if they are prosecuted and convicted. Thugs who like to beat up fat people -- or socialists or businessmen or redheads or football fans -- can do so with greater impunity. Those groups don't enjoy special protection.
ALTHOUGH MOST of the states had enacted hate crime laws by 1998, two of those that hadn't were the ones where Byrd and Shepard were lynched: Texas and Wyoming. Things would have been different, it was suggested, if they had.
"His death", editorialized The New York Times after Shepard was killed, "makes clear the need for hate-crime laws to protect those who survive and punish those who attack others, whether fatally or not, just because of who they are."
Likewise, Byrd's murder was cited as proof of the need for a tougher federal hate crime law. "A strong response is clearly needed," said Senator Kennedy not long after the killing in Jasper; to drive home the point, Byrd's daughter was brought to Washington to testify in the bill's favor.
But what difference could another hate crime law -- state or federal -- have possibly made? "A strong response"? Of the three men who killed Byrd, two were sentenced to death and one is to spend the rest of his life behind bars. How much stronger a response did Kennedy have in mind? Shepard's killers, too, were sentenced to life imprisonment. One of them, Aaron McKinney, was facing a death sentence when Shepard's parents proposed a deal: two life sentences in exchange for a permanent gag order preventing McKinney from ever appealing the verdict or discussing the case in public. What could a hate crime law have done that the existing murder law didn't do?
"I'm convinced," Kennedy said at another hearing in 1999, that "if Congress acted today, and President Clinton signed our bill tomorrow, we'd have fewer hate crimes in all the days that follow."
But this is specious. There is no state where prosecutors would ignore a monstrous violent crime or fail to demand a harsh punishment. Everything the murderers in Jasper and Laramie did -- kidnapping, aggravated robbery, assault, murder -- is already a crime in every US state and in every civilized nation on earth. Existing law provides harsh punishments. All that is necessary is to enforce the statutes already on the books.
THE PUSH for hate crime laws is fueled by the belief that crimes based on hate have reached epidemic proportions.
"It has become nearly impossible to keep track of the shocking rise in brutal attacks directed against individuals because they are black, Latino, Asian, white, disabled, women, or gay," write sociologists Jack Levin and Jack McDevitt in their 1993 book Hate Crimes: The Rising Tide of Bigotry and Bloodshed. "Almost daily, the newspapers report new and even more grotesque abominations. . . As ugly as this situation is now, it is likely to worsen throughout the remainder of the decade and into the next century as the forces of bigotry continue to gain momentum." The same claim has been made repeatedly by politicians, scholars, and various racial, religious, and sexual activist organizations -- and then amplified and rebroadcast by the media.
In the most thoughtful book yet published on the subject -- Hate Crimes: Criminal Law and Identity Politics -- James B. Jacobs and Kimberly Potter round up an extraordinary collection of the alarmist rhetoric to which Americans have been exposed in recent years. Some sample headlines: "A Cancer of Hatred Afflicts America." "Rise in Hate Crimes Signals Alarming Resurgence of Bigotry." "Black-on-White Hate Crimes Rising." "Decade Ended in Blaze of Hate." "Combating Hate: Crimes Against Minorities Are Increasing Across the Board."
But dig into the statistics, and these turn out to be wild exaggerations. Hate "crimes" are often not much more than incidents; in the FBI's official statistics, "intimidation" is the most common offense, while the actual number of violent bias crimes identified by the FBI is minuscule. Politicians, journalists, and advocates find the notion of a hate crime "epidemic" irresistible, perhaps because it is easier to denounce bigotry than to seriously confront violent crime in general. But the data are clear: Of the roughly 15,000 homicides, 30,000 rapes, 150,000 robberies, and half a million aggravated assaults for which police will make arrests in the United States this year, only the tiniest fraction would qualify as hate crimes. Nothing is gained by shining a spotlight on that fraction and eclipsing the rest.
ONE OF THE WORST defects of hate crime laws is that they punish not just deeds, but opinions: not just what the criminal did, but what he believed. This amounts to an assault on freedom of speech and belief, and ought to have no part in the criminal justice system of a liberal democracy.
"There is no such crime as a crime of thought," the renowned defence lawyer Clarence Darrow once said. "There are only crimes of action." In a free society, everyone is allowed to think bad thoughts and hold pernicious points of view. But contemporary hate crime laws turn those thoughts and points of view into crimes themselves. Certain states of mind, they announce, are so objectionable, so intolerable, that anyone who acts on them deserves especially severe punishment. Defenders of hate crime statutes argue that it is not the state of mind that is being punished, it is the crime it led to. But when the judge can send you to prison for an additional ten years because the aggravated assault you committed was motivated by your bigoted opinion of the victim, it is hard to reach any conclusion but the obvious one: Your opinion has been criminalized.
"Thought crime," George Orwell called it in Nineteen Eighty-Four. A government that can punish you for your unorthodox thoughts about blacks or Jews or homosexuals is that much closer to being able to punish you for your unorthodox thoughts about anything else. That is a prospect that should alarm any citizen who treasures his liberty.
IN AN AGE when citizens are under constant pressure to splinter into groups -- to see themselves first and foremost as members of an aggrieved race, class, or gender -- the last thing they need are more laws emphasizing their differences and calling inordinate attention to bias and hatred. Hate crime laws further a deeply destructive trend: an insistence on casting violent offenders not merely as criminals who threaten society's well-being, but as various kinds of bigots: racists, sexists, gay-bashers, Jew-haters. This is profoundly wrong. The purpose of criminal law is not to protect blacks from whites, Jews from neo-Nazis, women from misogynists, gays from straights, or immigrants from nativists. It is to protect all of us from lawbreakers.
Every offense covered by a hate crime law was illegal to begin with. Each one could have been prosecuted under the existing criminal code. It may sound admirable to talk of "preventing hate crimes" with new laws, but such laws prevent nothing except social unity. What they promote is balkanization, class warfare, and identity politics. Equal protection under law is the ideal of every democratic society. A government that takes that ideal seriously will tell potential criminals that they will be punished fully and fairly, without regard to the identity of their victims. Hate crime laws declare that some victims are more deserving than others. That is a message no citizen should ever be willing to accept.