Legal Affairs – Let’s Make the Federal Hate Crimes Law Broader-Much Broader

National Journal

Almost two-thirds of voters respond negatively when asked what they would think of a candidate who voted against "strengthening the prosecution of violent hate crimes motivated by prejudice against race, religion, gender, or sexual orientation."

Not coincidentally, the Clinton-Gore Administration and congressional Democrats are putting on a highly publicized push for the House to pass the hate crimes bill that the Senate adopted in June. It would expand the current federal statute-which provides harsher penalties for various crimes if motivated by race, religion, or national origin-to cover a longer list of crimes, including those motivated by sexual orientation, gender, or disability. This has House Republicans (who are trying to bury the proposal) in a box. Who wants to look soft on hate crimes?

Politics aside, the Clinton proposal has one thing going for it: the unassailable principle that murders and other violent crimes motivated by homophobia or gender bias should be treated no less seriously than those motivated by racism, xenophobia, or religious bias. Among the flaws in the proposal-and in the current statute-is that they treat even the most brutal murders as lesser crimes if motivated not by bias, but by bloodthirstiness, greed, depravity, lust, or other base impulses.

So here’s a suggestion, both for Republicans and for any Democrats who pause to reflect that hate crimes laws almost never prevent crime, almost never help victims, and almost always have bad side effects: Why not amend the pending proposal by expanding it? Why not add to the list of hate crimes those "motivated in whole or in part by depraved indifference to the victim’s life or health or to the pain of the victim’s family"? It could be called the Fairness and Family Protection Amendment (FFPA).

Perhaps for good measure we should also include crimes motivated by the victim’s membership in any socioeconomic class, reluctance to be deprived of the fruits of his or her labor, willingness to be a truthful witness, or attractiveness to pedophiles. But we can worry about the detailed drafting later.

The beauty of the FFPA is that its effect would be to enlarge the definition of hate crimes enough to give virtually all crime victims the same status. It would, for example, treat a white career criminal who robs and murders a white bank teller no less severely than a black man who does the same while hurling racial epithets at his victim.

This last hypothetical is not unrepresentative. For all the publicity about hate crimes against African-Americans (the victims of some 40 percent of hate crimes), FBI statistics suggest that they commit two to three times as many hate crimes per capita as whites. And although the hate crimes lobby stresses the need to protect blacks, gays, and other minority groups, the statutes have to be drafted in ostensibly neutral terms to depend not upon the victim’s group status-that would quite clearly be unconstitutional-but upon the defendant’s motivation.

Of course, the FFPA might not appeal to advocates of special laws for their favorite victim groups, because its effect would approximate a simple repeal of the federal hate crimes statute. But Clinton, Gore, and their allies might have a hard time fighting a proposal to be just as tough on the ugly crimes covered by the FFPA as on bias-motivated crimes.

(One difference between repealing the statute and adding the FFPA to it is that the latter course would raise the maximum penalties for virtually all violent crimes, excepting those already punishable by death. But careful drafting could give judges enough discretion to avoid excessive penalties.)

Would the FFPA be a deceptive strategem? Not really. While it might outflank the hate crimes lobby in the PR game by finding a politically congenial route to the fairest-policy outcome, it would not mislead voters. To the contrary, it would expose the double standard inherent in the hate crimes lobby’s notion that victims of most violent crimes should get less protection from the law than victims of bias-motivated crimes.

There was surely some truth to that notion back when some state and local judges and juries refused to punish white men for lynchings and other crimes against blacks. But how many times in the past 20 years have state officials been soft on such bias-motivated crimes? Not many (if any), I suspect. Indeed, local authorities using plain old murder statutes have severely punished the men who committed the monstrous crimes most often cited by the hate crimes lobby. In Texas, two white men have been sentenced to die and a third to life imprisonment for the racially motivated truck-dragging murder of James Byrd Jr. (Would this have been a lesser crime had Byrd been white?) In Wyoming, two thugs are serving life sentences for the sadistic robbery-murder of gay student Matthew Shepard.

This is not to deny that African-American victims, witnesses, suspects, and defendants are often treated badly by police and prosecutors. Racial discrimination in the criminal justice system is still an enormous problem. But no such official discrimination has been shown in cases involving bias-motivated crimes in recent years. And hate crimes laws are not a remedy for official discrimination.

Why, then, do some polls find widespread public support for hate crimes laws? In part, perhaps, because of the way the questions are worded. The outcome might be quite different if the questions described the actual effect of these laws more accurately. For example: "Should murderers and other violent criminals be punished less severely when motivated by bloodthirstiness, greed, depravity, or lust than by bias?" Try polling that one.

Well, one might ask, even if hate crimes laws are unnecessary, at least they make a nice symbolic statement: We hate hate. And what harm can they do?

Quite a lot, actually:

• By blending punishment for constitutionally protected (if bigoted) thoughts and speech together with punishment for violent criminal acts, hate crimes statutes smuggle into the law an unwholesome dose of thought control, which puts defendants on trial for their opinions along with their actions.

• By fostering the false notion that ordinary criminal laws don’t punish bigots adequately for their violent crimes against the usual victim groups, hate crimes laws fuel a wretched and divisive competition for victim-group status.

• Such laws also breed resentment among those who see themselves on the losing side of a double standard akin to racial preferences. "I find it hard to believe," writes crime scholar James Q. Wilson, "that federal prosecutors, equipped with this law, will go around looking for white males who have been beaten up by black gangs."

• Paradoxically, hate crimes laws sometimes operate in perverse ways unintended and unexpected by their supporters, perhaps even leading to conviction of innocent black defendants. That’s because these laws give too much power to prosecutors and police (who are often accused of racial discrimination) to hit defendants (who are often black or Hispanic) with hate crime charges for the purpose of inflaming juries, ratcheting up penalties, or diverting attention from evidence casting doubt on the defendant’s guilt.

• Hate crimes laws divert trials from the straightforward task of determining who did it into an elusive quest to identify the defendant’s inner thoughts-a quest complicated by the realities that motives are often mixed and bias is rarely the main one.

• The federal hate crimes statute undermines constitutional protections against double jeopardy by forcing defendants who have already been prosecuted in state court to face successive prosecution in federal court for the same acts. Moreover, political pressure and victim-group lobbying sometimes spur federal authorities to bring unwarranted prosecutions.

• The federal statute also intrudes into local matters unrelated either to interstate commerce or to official discrimination. For this reason, both the current statute and the pending bill may be unconstitutional (in whole or in part) under the logic of the Supreme Court’s May 15 decision striking down a key provision of the Violence Against Women Act.

New federal hate crimes legislation may be politically unstoppable in the long run. If so, the best course would be to expand the law’s coverage enough to reflect the fact that all violent crimes are in a sense hate crimes. That would make every crime victim special. And when every victim is special, no victim group is specially privileged.