There have been several attempts to expand federal hate-crime statutes, both to incorporate sexual orientation as one of the specified classes in the law and to increase federal involvement in the investigation and prosecution of these types of crimes. Each time the proposed bill has failed to pass.
The latest iteration of this legislation is the Local Law Enforcement Hate Crimes Prevention Act of 2007, approved by the U.S. House of Representatives on May 3 and now under consideration by the Senate.
One might oppose this bill for the wrong reasons, motivated by an animus against gay and lesbian Americans that refuses to acknowledge them in the law.
One might also oppose this bill for the right reasons, supporting the dignity of gay individuals but objecting on constitutional, legal, and philosophical grounds.
Hate-crime laws at the federal level violate the constitutional division of government by federalizing crimes that should be handled by state authorities.
Legal scholar Timothy Lynch of the Cato Institute told members of the House Judiciary Committee in April that the proposed law expands federal authority in an unconstitutional manner. He cited Chief Justice John Marshall, who observed that Congress had "no general right to punish murder committed within any of the States" and that it was "clear that Congress cannot punish felonies generally." Over time, however, Congress asserted that the Commerce Clause of the Constitution granted it the authority that Marshall said did not exist. Regarding this development, Lynch testified:
This Congress should not exacerbate the errors of past Congresses by federalizing more criminal offenses. The Commerce Clause is not a blank check for Congress to enact whatever legislation it deems to be 'good and proper for America.' The proposed hate-crimes bill is simply beyond the powers that are delegated to Congress."
From a legal standpoint, such a federal law would be redundant, at best.
One can understand if the call for hate-crime statutes comes from evidence of bad enforcement of the laws already on the books. We know that, in the past, police and prosecutors have been willing to look the other way when victims came from disfavored groups.
But as senior editor Jacob Sullum of Reason magazine pointed out in a recent column, "Unlike the situation in the Jim Crow South, there is no evidence that state and local officials are ignoring bias-motivated crimes."
Indeed, as Lynch testified, "all of the violent acts that would be prohibited under the proposed bill are already crimes under state law." Referring to the murders of James Byrd in Texas and Matthew Shepard in Wyoming, he added, "The individuals responsible for those murders were quickly apprehended and prosecuted by state and local authorities. Those incidents do not show the necessity for congressional action; to the contrary, they show that federal legislation is unnecessary."
Philosophically, passing this law would be wrong because hate-crime laws, however well-intentioned, are feel-good statutes whose primary result is punishing thought, violating our freedoms of speech and of conscience.
Wayne Dynes, editor of the Encyclopedia of Homosexuality, has noted that hate-crime laws, to be just, must be content-neutral. Yet in judging individual cases, he said, we would have to "get into the question of whether some hate" -- his example was that directed at an evil dictator -- "is 'justified' and some is not." He concluded that hate-crime prosecutions "will be used to sanction certain belief systems -- systems which the enforcer would like, in some Orwellian fashion, to make unthinkable. This is not a proper use of law."
Hateful thoughts may be repugnant to us, but they are not crimes in themselves. And crimes that follow hateful thoughts -- whether vandalism, assault, or murder -- are already punishable by existing statutes.
Passing this bill would also be wrong because it suggests that crimes against some people are worse than crimes against others. Hate-crime laws set up certain privileged categories of people, defined by the groups to which they belong, and offers them unequal protection under the law.
Beyond this philosophical objection, however, federal hate-crime laws -- those on the books now, those proposed -- are outside the scope of the authority granted Congress by the Constitution. New laws of this type should be rejected; older laws should be repealed.
20 Comments for “Good Intentions, Bad Laws”
posted by Craig2 on
As a matter of fact, our hate crimes laws are content-neutral. They include sexual orientation as one of the terms of reference, but our anti-discrimination laws include lesbian, gay, bisexual *and straight* people under the ambit of its coverage, thus dealing with the ‘special privileges’ argument. Our hate crimes laws also include age, disability, ethnicity, religion, and gender identity.
This is not about identity politics, it is about punishing violent crime, or even homicide,
directed against vulnerable individual members of specific communities, which often takes the form of aggravated assault.
If someone could be proven to have committed an analogous crime against a heterosexual, she or he would be similarly liable for conviction.
You’re confusing hate speech with hate crimes here, too. I oppose censorship of hate speech, but not hate crime legislation. As with the old feminist argument about straight porn and rape, I am not sure that there is neccessarily a causal relationship there.
Craig2
Wellington, NZ
posted by Brian Miller on
our anti-discrimination laws include lesbian, gay, bisexual *and straight* people under the ambit of its coverage, thus dealing with the ‘special privileges’ argument.
Such efforts to “deal with the special privileges argument” are fundamentally dishonest. Saying that “straight people are protected too, so the law doesn’t give special treatment to gays” is as disingenuous as the popular argument from the right in the USA that “gay marriage isn’t illegal — gay people can always marry someone of the opposite sex.”
posted by Craig2 on
Yes, but you’ve got to admit, it does provide a reply to the ‘special rights’ argument that the Christian Right uses.
There’s much to be said for pragmatic tactical expediency.
And we’ve had our anti-discrimination laws for the last fourteen years down here.
Incidentally, NZ heterosexuals can also contract civil unions if they so wish, as well.
Craig2
Wellington, NZ
posted by Randi Schimnosky on
Brian said ” Saying that “straight people are protected too, so the law doesn’t give special treatment to gays” is as disingenuous as the popular argument from the right in the USA that “gay marriage isn’t illegal — gay people can always marry someone of the opposite sex.””
Not a valid analogy Brian. In the case of gay marriage straights are disingenously saying gays are allowed to marry if they become straight. The hate crimes law does not similarly say straights are protected only if they become gay, it says straights are protected as they are.
Richard Sincere said “Hate-crime laws set up certain privileged categories of people, defined by the groups to which they belong, and offers them unequal protection under the law.”.
That’s nonsense. What the law does is acknowledge the reality that some people are underpriviledged by society’s biased attacks (such as gays and minorities) and sets out to restore the equality by punishing those bias crimes more severely. This about restoring equality that is currently denied, not about creating unequal classes.
posted by North Dallas Thirty on
What the law does is acknowledge the reality that some people are underpriviledged by society’s biased attacks (such as gays and minorities) and sets out to restore the equality by punishing those bias crimes more severely.
So the punishment for killing a black person should be greater than that for killing a white person.
Got it.
posted by Craig2 on
ND30, the issue here is *aggravated assault*. Personally, I believe that all crimes of violence should be treated with severity and non-parole sentencing.
And incidentally, New Zealand’s definition of hate crimes would certainly deal with those young lesbian thugs cited elsewhere on this site. They would receive equally severe sentences to someone convicted of analogous homicide against a lesbian, gay man or transgendered person.
Hate crimes laws are law and order policies. What do you have against tougher sentences for violent and murderous thugs? Isn’t that an emblematic centre-
right issue?
Craig2
Wellington, NZ
posted by Brian Miller on
In the case of gay marriage straights are disingenously saying gays are allowed to marry if they become straight.
And in the case of “hate crimes laws,” statists are disingenuously saying that there’s an epidemic of “breeder bashing” by queer people against heterosexual individuals — an equally ludicrous proposition.
posted by mrgay on
http://gayfriendfinder.com/go/g879284
posted by North Dallas Thirty on
What do you have against tougher sentences for violent and murderous thugs?
Nothing.
But this bill only toughens sentences for violent and murderous thugs who attack a specific type of victim in a specific fashion.
The best argument against hate-crimes laws is that the two cases both cited as examples — Matt Shepard and James Byrd, Jr. — both were prosecuted and punished to the satisfaction of all in their complete absence.
To me, what that shows is that our system works as-is. That makes “hate-crimes laws” at best to be window-dressing for minorities, and at worst, an unconstitutional abrogation of equality of justice for the sole purpose of exploiting minority victimization complexes for winning votes.
posted by Craig2 on
It would be interesting to assess whether those who engage in aggravated or homicidal assault against ethnic minorities, LGBT folks and other marginalised groups *do* get comparatively severe and punitive sentences to the other way round, wouldn’t it?
Craig2
Wellington, NZ
posted by North Dallas Thirty on
Um…..if they are getting penalties that are severe and punitive in comparison, we have a problem.
The idea here is that they should receive the same type of penalties.
posted by Lori Heine on
I’m trying to figure out how any violent crime committed against another human being could ever be anything but a hate crime.
It sure as heck isn’t a “love” crime.
The whole problem really started when we began coddling violent criminals. Instead of putting them behind bars (or, if appropriate marching them off to the gas chamber), we hugged them and tried to understand their childhoods.
What this brought us — not at all surprisingly — was merely more violent crime. And more, and more, and more.
Hate crimes legislation is a spotty and specious attempt to redress the problem — a problem caused by do-gooder tinkering — with more do-gooder tinkering. Let’s identify special little groups who are more aggrieved than other groups and restore (but only to these groups) the sort of justice we used to give everyone.
I’ve got a better idea. Why don’t we simply go back to seeing every violent crime as a hate crime — regardless of whom it’s against — and punish them all the way we used to back when we had the problem a lot more under control?
Of course I will be accused of being soft on hate crimes. Honest minds would understand, however, that I’m actually doing just the opposite.
posted by Lori Heine on
The flaw of reasoning, on the part of the do-gooders, basically seems to be their adoption of the notion that some violent crimes are somehow less justifiable than others — and therefore should be punished more severely.
That is just another way of saying that some criminals were more justified in committing their crimes than others. Which has bred the sort of resentful, whiny-little-kid attitude we hear from so many of those, today, who run afoul of the law.
“It’s not MY fault…”
“What Johnny did was worse…”
“You let Susie get away with it…”
Hate crimes legislation merely builds another shaky story onto this same crumbling foundation. It is, as such, not a move toward greater public safety but further away from it.
posted by Craig2 on
Uh huh, so, violent crimes against African Americans do get punished with equal severity and parity when it comes to the Deep South?
So there’s no such problem as ‘homosexual panic defence’ on the basis of ‘provocation’?
ie “Your honour, I felt deeply
threatened when ninetysomething
Mr Jenkins put his hand on my
knee, so I was ‘provoked’ into
bashing his brains out with a baseball bat…” said the hulking
linebacker for the Pittsburgh
Prunes.
“Not guilty, due to extenuating circumstances…” said Judge Homer Gitt of Inbred, Tennessee.
What if hate crimes laws actually *increase* the *severity* of sentences for aggravated assaults against marginal groups so that they reach parity with non-marginal
ones?
It occurs to me that Lori’s point about mollycoddling criminals would be well-met by such an option…
Craig2
Wellington, NZ
posted by O. J. Simpson on
I didn’t do it, but if I did it, it was because I loved her. Here’s how I would have done it, if I did it…..but I didn’t do it. Really! I didn’t do it, and in between the first and eighteenth holes, I am looking for her killer.
posted by Brian Miller on
So there’s no such problem as ‘homosexual panic defence’ on the basis of ‘provocation’?
To the degree that there is one, the solution is to eliminate that unequal treatment as well — not further poison the well of justice by dumping in additional inequality in an effort to “balance things out.”
Incidentally, gay panic defenses have largely died out — even in “Inbred, TN.”
My biggest fear now isn’t being bashed and murdered, with the perpetrator getting away with a “gay panic defense,” but rather, that I defend myself or a loved one from anti-gay violence and end up charged with “vigilantism” by the same ding-a-lings advocating all these “hate crimes” laws.
posted by SteveMD2 on
Hate crimes are crimes typically against one or a few individuals, but are intended to terrorize and send a message of fear to an entire community. Generally the community is one that has been marginalized and discriminated against for eons. So when one e.g gay person gets beaten up or murdered, it is really done to terrorize all members of that community. That is why hate3 based crimes should have much more severe punishment – did one person get beaten, or really did a whole community get beaten, even if it wasn’t physical.
posted by Lori Heine on
“My biggest fear now isn’t being bashed and murdered, with the perpetrator getting away with a “gay panic defense,” but rather, that I defend myself or a loved one from anti-gay violence and end up charged with ‘vigilantism’ by the same ding-a-lings advocating all these ‘hate crimes’ laws.”
I’m with Brian on this. All I want is an even chance at defending myself. I will not be a sitting duck for any whacko who happens to come along.
If the police protect me just like they do everybody else, that’s fine with me. Once we put ourselves, as a society, in the position of splitting hairs over who’s been victimized longer, there is simply no end in sight.
The Left holds out the fantasy that if we can just place the blame in the right place, we can even it all out. There is absolutely zero evidence that this fantasy has in relation to fact.
What the advocates of hate crimes legislation have done is contribute to the balkanization of our society and make the rights of every human being a political football, dependent upon our characteristics as members of some group.
That is not a step in the right direction.
posted by Carl Hendrickson on
Thank you SteveMD2: “Hate crimes are crimes typically against one or a few individuals, but are intended to terrorize and send a message of fear to an entire community.”
As for most of the other comments: Libertarian masturbation. Expect hair to grow on the palms of your hands!
posted by Thomas Henning on
The purpose of a hate crime law is to recognize that certain crimes have secondary victims: members of the group to which the first victim belonged. Thus an additional sanction is called for.
These seemingly random crimes, which inevitably become publicized, can by their arbitrary nature terrorize a large group of people. The criminals often commit these crimes with full knowledge of this dynamic, and with the hope that their singular act of violence will hurt many others when it reported in the press. Why else would they, in the midst of a violent act, bother to identify the group to which they think the victim belongs? : “Die faggot!”
Such crimes demand extraordinary punishment.
Hate crime laws don’t add extra penalties because of (in this case) the sexual orientation of the individual. That is irrelevant. All that matters is that the criminal thought the victim was gay or lesbian. Thus it is a law that protect all people equally: gay, straight, and otherwise.