National gay groups are pushing Congress to pass a new and dramatically expanded federal hate crimes law. While the effort has strong emotional and symbolic appeal, it probably has little practical value and may forestall legislation that really can make a difference in the lives of gay Americans.
The current federal hate-crimes law was passed in 1968. It covers crimes motivated by bias against a person's race, ethnicity, national origin, or religion. It allows federal prosecution only where the victim is engaged in a federally protected activity (like a civil-rights demonstration). A separate federal law requires the FBI to report the incidence of hate crimes, including anti-gay crimes.
The proposed law would add sexual orientation, gender, gender identity, and disability to the already protected categories. But it would do more than simply add these new categories to a pre-existing law. It would also allow federal investigation and prosecution of hate crimes regardless of the victim's involvement in a federally protected activity. Thus while it adds more categories it also enlarges the scope of the existing federal hate crimes law.
Having myself been a victim of such an attack 17 years ago, I know anti-gay violence tends to be especially vicious. Hate crimes put a whole group of people under fear of attack.
Some opponents of hate-crimes laws have worried that they will be used to punish speech or thought because they focus on a person's motivation in committing a crime. This isn't a very strong objection. Law constantly inquires into motive and these laws have not been used to punish "hate speech." Law legitimately gives special protection to especially vulnerable victims.
But will a new federal law do anything to stop hate crimes? Supporters argue it will do two things. First, it allows federal prosecution of anti-gay crimes -- something that until now has been left to the states. Second, it gives resources to local authorities to investigate and prosecute anti-gay crimes on their own.
I am skeptical about the practical value of hate-crimes laws. All but seven states already have them, and 24 of these state laws include anti-gay crimes. Passage of a federal bill will improve by some degree the likelihood of punishing offenders for attacks that have already occurred, but that could be done without creating special categories of protection.
We now have almost 40 years of experience with these laws, yet there's no evidence they have actually reduced hate crimes. A new federal law will not likely deter future violence.
Here's why. Bias crimes are especially irrational, welling up from deep hatreds, resentments, and fears that law can hardly touch. They're often committed by young males in their teens and early 20s who don't know the nuances in criminal law and whose animalistic behavior is probably not very responsive to nice legal incentives. Neither the prospect of federal (as opposed to state) prosecution nor the threat of additional time in prison (beyond what the offender would get anyway) will deter bias attacks.
Supporters also argue that local authorities need federal help to prosecute hate crimes, citing the Matthew Shepard case as an example of the high cost involved. But that crime was prosecuted without federal help and supporters cite no hate crimes that have gone unpunished because of expense.
Besides, lack of resources is a common complaint of police and prosecutors. They'd always love more money, but there is no evidence that this is a problem unique to hate crimes. Perhaps the federal government should help, but why give special assistance to the prosecution of one class of crimes that seems no more costly than another?
Further, the investigation and prosecution of violent crime, with a few exceptions, has traditionally been the job of the states. There is no evidence that local and state authorities are systematically ignoring hate crimes under existing laws.
Sure, some law enforcement authorities in isolated jurisdictions have occasionally seemed insufficiently concerned about anti-gay crimes. But where is the evidence of widespread, systematic underenforcement to justify a federal law covering every jurisdiction in all 50 states? We should have such evidence before the federal government intrudes on yet another area of traditional state authority.
Aside from these dubious instrumental rationales for hate-crimes laws, the purpose of them seems entirely symbolic. Like much other legislation, they are primarily mechanisms for groups to raise morale and achieve recognition. That's not unimportant.
But while law can properly send messages about tolerance and inclusion in a variety of ways, purely symbolic criminal laws are a bad idea. They allow authorities to posture morally at the cost of threatening people with loss of liberty and increasing opportunities for prosecutorial abuse. This was one of many problems with sodomy laws.
No doubt national gay-rights groups, especially the Human Rights Campaign, are looking for a victory early in the new Congress to show long-suffering donors and skeptical bloggers they can be effective. Winning on hate crimes may also reassure members of Congress that they can vote for a pro-gay bill without serious repercussions. Other important issues, like employment protection and DADT, are on the horizon. An "anti-crime" measure is the easiest first step and may actually get President Bush's signature, leading to more progress later.
But passing this seemingly symbolic bill may have the opposite effect. It may give the new Congress a "pass" -- allowing Democrats to say they have done something "pro-gay" and freeing them to avoid the harder and far more consequential questions of military service and protecting gay families in the law. These are issues, unlike hate crimes, about which Congress really can do something of practical value.