Thought Crimes

Originally appeared October 7, 1991, in The New Republic.

MAYOR DAVID DINKINS marched with the gay contingent this year in New York's St. Patrick's Day parade. Michael Burke, a thirty-year-old resident of New Jersey, threw a can of beer at him. Burke missed, thus avoiding a felonious assault charge. Instead he was charged with reckless endangerment and disorderly conduct. Because the crime was deemed bias-related, and because it was Burke's first offense, the prosecutors recommended, and the defendant and the judge accepted, what's known as an alternative sentence: forty hours of community service in the New York Mayor's Office for the Lesbian and Gay Community.

Burke might have gone to jail, surely an appropriate sentence for a man who tried to brain a public official. He might have done community service at a head-trauma clinic, where he could see the consequences of violent acts like his own. Instead he was sent to work with gays. This penalty makes sense only as a corrective for his repugnant attitude toward homosexuals.

Hardly anyone seems to share my dismay. The New York Times article about the sentence carried the approving headline: "Beer Flinger Sent to a Fitting Cooler. -- At the Sentencing Project in Washington, assistant director Marc Mauer says that such sentences may help prevent violent acts in the future. "I think we do have a responsibility, purely from a crime-control point ofview, to confront the causes of his action. -- Matt Foreman, the executive director of the Gay and Lesbian Anti-Violence Project in New York, said he was thrilled with the sentence.

Should prejudice, which often leads to injustice, be punished? Should hate, which often leads to violence, be a crime? More and more well-meaning Americans are now saying yes to both questions. It's the wrong answer. I say this despite being a member of the class that Burke allegedly sought to denigrate. The minority-led march toward attitude activism and prejudice policing is dangerous and counterproductive.

To see why, consider separately the two component issues in the beer-can incident. One, a man hurled a dangerous object at a public official. Two, he did this because ostensibly?he denied it?he was prejudiced against homosexuals. Obviously the act of violence deserves punishment. The hard question is: What do you do about the prejudice that lay behind the act?

One option is the by-now-familiar inculcation of tolerance - racial, sexual, cultural - being pursued in universities around the country. Everyone has heard the stories. A University of Michigan student who makes a tasteless joke is required to attend gay-sensitivity sessions and publish a piece of self-criticism called "Learned My Lesson. -- The University of Maine posts messages on the inside of bathroom stall doors: "Sexual harassment is not defined by the intentions of the accused... [but] by the effect on the victim." People for the American Way, a liberal group originally founded to counter the thought-policing influence of right-wing fundamentalists, recently issued a report urging universities to combat prejudice even "when there have been few, if any, overt expressions of intolerance on campus."

The campus efforts to stamp out prejudice have been failing egregiously and noisily, just as they should. Universities' business is to test prejudices in debate, not to regulate them. But short of hard-core political correctness is a compromise approach, one that is much harder to object to. This is the hate-crimes approach. It says that prejudice by itself should not be punished, but prejudice together with violence should be.

There's something to be said for hate-crimes laws. The argument is that crimes such as cross burnings are a threat directed against a whole class, and a vulnerable class at that. Clearly, throwing a swastika-emblazoned rock through a synagogue window is not the same as throwing any old rock through any old window. More and more state legislatures agree. At least two-thirds of them, according to the Anti-Defamation League, have adopted statutes against hate crimes. For instance, Michigan's law specifies up to two years in prison and up to $5,000 in fines for "ethnic intimidation, -- in which a person assaults, vandalizes, or threatens "with specific intent to intimidate or harass another person because of that person's race, color, religion, gender, or national origin. "

The trouble is that in practice such laws come close to criminalizing prejudice. Ohio passed an "ethnic intimidation -- law, which deems crimes more serious if committed "by reason of the race, color, religion, or national origin of another person or group of persons. -- This verges on making what a defendant says or believes about race a part of the crime - and, as a state appellate court pointed out in overturning the law, it "vests virtual complete discretion in the hands of the state to determine whether a suspect committed the alleged acts based on... race, color, religion, or national origin. -- A St. Paul, Minnesota, ordinance (also under challenge) goes a step further: the law makes it a misdemeanor to place "on public or private property a symbol, object, appellation, characterization, or graffiti, including but not limited to a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm, or resentment in others on the basis of race, color, creed, or religion." This seems to say that it's a hate crime to upset someone. In Florida a black man has been charged under the state's hate-crime law for calling a white policeman a "cracker."

Why shouldn't the law be used to combat destructive attitudes? For instance, why shouldn't a violent racist be sentenced to work for the NAACP, where he can confront the humanity of the people he hates? Why shouldn't a swastika-scrawler be sentenced to study the Holocaust?

First, because forced reeducation rarely works. A lot of governments have tried it, and the results are to be seen in the rubble of communism.

Second, because the biggest problem in America today for minorities and non-minorities alike is not racism, prejudice, homophobia, or what have you. It's also not drugs, medical underinsurance, or even poverty. It's violence. Young black men face more risk in the streets of Chicago's South Side and Los Angeles's Watts than American soldiers faced in Vietnam. Hate crimes activists argue that bias-motivated crime deserves special handling because it is especially harmful to society. But they have a hard time explaining why this is so. Why is it more terrorizing or socially destabilizing to stab someone because he's Jewish, for instance, than to stab someone for his sneakers? The former signals that Jews are in danger; the latter signals that everyone is in danger. And there's an insidious cost to coming down especially hard on violence that's linked to bias, drugs, or other secondary ills. Necessarily, if you say that assault motivated by bias is especially objectionable, you also say that assault not motivated by bias is less objectionable. Tying the fight against violence to other political agendas clutters and compromises what needs to be a clarion message: violence is intolerable, period.

Third, and most important, because the goal itself is misguided. The ADL, in a 1988 report, said, "Importantly, laws which more severely punish violent manifestations of anti-Semitism and bigotry demonstrate the country's resolve to work toward the elimination of prejudice. -- For private groups such as the ADL and the NAACP, as well as for parents and preachers, "elimination of prejudice -- is indeed a worthy goal. But different groups will have different ideas of what constitutes "prejudice." (Is secular humanism prejudice against Christians? Is Afrocentrism prejudice against whites?) That is why eliminating prejudice is exactly what "the country" - meaning its governmental authorities - must not resolve to do. Not only is wiping out bias and hate impossible in principle, in practice "eliminating prejudice -- through force of law means eliminating all but one prejudice - that of whoever is most politically powerful.

Personally, being both Jewish and gay, I do not expect everybody to like me. I expect some people to hate me. I fully intend to hate those people back. I will criticize and excoriate them. But I will not hurt them, and I insist that they not hurt me. I want unequivocal, no-buts protection from violence and vandalism. But that's enough. I do not want policemen and judges inspecting opinions.

I think it's ironic and a little sad that gays, of all people, would endorse a criminal sentence that has overtones of forced re-education. Homosexuals know a thing or two about being sent for therapy or reeducation to have their attitudes straightened out. Jews, too, know something about courts that decide whose belief is "hateful. -- As on campus, so in the courtroom: the best protection for minorities is not prejudice police but public criticism - genuine intellectual pluralism, in which bigots, too, have their say. Minorities above all should be worrying about Michael Burke's sentence.

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