Civil libertarian Wendy Kaminer warns of The Return of the Thought Police, regarding the proposed federal hate crimes law, in the Wall Street Journal (now online for non-Journal subscribers). She takes on the typical "pro" arguments made by big-government progressives on behalf of such legislaton:
[D]istinguishing hateful bias crimes from other hateful acts of violence punishes ideas and expression, no matter how scrupulously the legislation is crafted. When someone convicted of assaulting one woman is subject to an enhanced prison sentence or a more vigorous prosecution because his assault was motivated by a hateful belief in the inherent inferiority of all women, then he is being punished for his thoughts as well as his conduct.
While motive or state of mind are routinely considered in criminal cases (as mitigating or aggravating factors,) ideology is not routinely invoked in determining the seriousness of an alleged crime. Hate crime legislation, however, is expressly designed to punish particular thoughts or ideas.
Its advocates argue that hate crimes demand differential treatment because they are crimes against communities, not just individuals.... Civil libertarians, however, ought to be more sensitive to the creation of thought crimes-even when "bad" thoughts are only punished in the course of punishing bad acts. Free-speech advocates who believe that misogynist pornography should be legal, for example, should question whether evidence of a defendant's porn collection should be introduced at a sexual-assault trial in order to convict him of a hate crime. It's sophistry to suggest that in such a case the defendant would suffer punishment only for his conduct, and not his beliefs.
She concludes:
Matthew Shepard's killers were convicted of homicide and kidnapping by the state of Wyoming and are serving consecutive life sentences. His torture and murder remain awful to contemplate, but civil libertarians ought not be squeamish about questioning the consequences of the law that would bear his name.
22 Comments for “Hate Crimes, Again”
posted by ETJB on
(1) “Ideas and expression” (intent) are alredy a part of our legal system and have been for a long time. The difference between 1st degree murder versus manslaughter is a good example.
(2) The notion that hate crime laws are creating some “1984” thought-police does not add up, when compare the hate crime laws that exist in many states.
posted by John on
I might have agreed with Wendy Kaminer at one point but we have long since accepted the hate crime statutes on the books in several states. Accepting the status quo as it is now demeans groups not yet protected by hate crime statutes. Victimizing someone because he/she is a member of an uncovered group, it could be inferred, is more tolerable than victimizing someone because he/she is from a protected group.
These laws have to be either repealed or the coverage has to be extended so that protection is offered for every possible group.
posted by Southern Decency on
1. There is no “proposed federal hate crimes law”, there only is a bill to add sexual orientation, gender identity and disability to the already-existing federal hate crimes law.
2. This whole “thought police”/”thought crime” stuff is nonsense. A “thought crime” would be to punish someone for thinking about a crime, even when it’s not actually executed (which is how Jesus punishes adultery).
“Hate crime” laws don’t punish someone for thinking about killing someone for his sexual orientation. They require harsher punishment for an actually executed crime in case of particular motives. Taking motives into account upon sentencing is part of many deontological systems of ethics, Kantian ethics in particular, thus far from unusual or “anti-liberty”.
Paraphrasing “hate crime” laws as “thought crime laws” is thus factually incorrect and serves only to emotionalize the discussion, just as putting Shepard’s name into the bill’s name does.
posted by dalea on
Excellent point Southern Decency. We have had these laws for 40 years and nothing of the sort has ever happened. There have been no ‘thought crime’ efforts. And there is no reason to expect this. What ‘Civil Libertarians’ might do is argue for doing away with the whole of the law, in which case good luck. Or they might consider adding groups that are very much at risk of hate crimes.
But to bring up something that has never happened in an area where there is much experience tends to look silly. Plus treating this as a whole new law shows a lack of knowlege about what she is commenting on.
posted by thegayrecluse on
This is a tough issue, but I think the true focus of the debate should really be on enforcement; clearly the problem is not the lack of statutes on the books for murder, rape, etc., but the reluctance of (certain) prosecutors to take action because they don’t identify with the crime victim. Hate-crime legislation is really a second-best solution to this problem. Another problem with these statutes is that they perpetuate negative stereotypes about the group they seek “to protect.” For example, in a recent New York Times article about the gay kid who was chased into traffic and killed near Sheepshead Bay, the reporter wrote: “To win a conviction under the hate crime law, Ms. Nicolazzi [the prosecutor] seeks to prove the defendants selected a gay man for robbery on the notion that gays are fearful and vulnerable.
posted by Samantha on
I am not completely comfortable with the concept of a hate crime. It seems inherently unfair to punish someone above and beyond the proven crime because he also hated the person. But there’s the other side too, which acknowledges the reality that minorities are targeted because of the group they belong to and not because they personally did anything to the assailant to otherwise make him angry or feel wronged. And since we already have an existing law on the books, it’s appropriate to include, not exclude gays, as they certainly are targeted. Groups which oppose the legistation generally are very conservative or religious, which ironically includes african-americans (one of the protected hate crime groups).
So I suppose I support the legislation. But having said that, I feel that in general hate crime legislation should be reserved for true predatory behavior of a vulnerable class of people, where the crime is not only identified in this manner but also has a chilling effect on the whole culture, such as Matt Shepherd, or painting swastikas on synagogues, or burning black churches because they’re black. That sort of thing. But if someone gets beat up, and the assailant yells faggot, or nigger, or dyke, while he does it…I don’t believe you should add on hate crime penalties. As abhorrant as it is, we all have a right to hate people.
posted by Regan DuCasse on
Quite so, Samantha…we do. And that has proven true of juries, judges and law enforcement officers when it came to the execution of their duties in investigation, prosecution and execution of justice.
Many have been tempted to and have bought into the defense that the gay person was more the assailant, however ludicrous the defense. Often there has been little if any sympathy for gay and lesbian victims, so those who cannot guarantee the prevention of hate crimes, must guarantee at least that justice should be served after the fact.
The motive, opportunity and execution of a crime, all weigh in the severity of the punishment. ONLY it seems, in crimes against gay people, are the perpetrators turned into victims justified in committing their crime.
At any rate, there is precedence where failure of law enforcers to commit fully to investigating crimes against gay people has resulted in collateral crimes and victims.
Such as in the cases of Brandon Teena and Jeffery Dahmer.
It’s taken a long, long time for anyone at the higher level of crime and punishment to take crimes against gays and lesbians seriously, and the road is still long yet.
Case in point, the most homophobic have suddenly decided to conjecture that hate crimes laws will make THEM a victim of government censorship. Citing a single situation in Canada where a minister was brought before a government body to review his public slander and libel of gay people (which is really what anti gay rhetoric is). Most of his activity was NOT in a church, and since much of Canada’s health system is socialized, Candadians considered words that incited violent or hostile action against gay people a public health and welfare issue.
After all, violent crime is expensive. Hospital costs, victim survivor litigation, incarceration and attorney fees…they add up.
I DOES beg the question, why DON’T the anti gay give it a rest already?
Nothing good can or has come of virulent anti gay media or other sources.
So, the Canadian mindset about threatening to divest the minister has more validity than the minister himself has to continue his activity.
In any case, hate crimes are costly anywhere, and being clear about the costs to the victims and ourselves makes fear of the consequences of the law worth it.
posted by Brian Miller on
“Hate crimes” laws say that my life as a gay man is worth more than someone else’s life as a straight man. Thus, they are profoundly immoral. End of story.
posted by Lori Heine on
If anybody makes the mistake of invading my home — whether or not they intend to do me physical harm — they will not leave standing up. My home is insured by Smith & Wesson.
Given the loopy logic of “hate crimes” legislation, the mutant who invades my house is more guilty if he did so because I am a lesbian than if he simply wanted to rape, torture or murder me at randon.
The “hate crimes” legislation crowd is one and the same with the crowd that wants to keep me from being able to defend my home and family. They don’t just want to give every murderer a psycho-test to find out what he was thinking before he killed, they want to subject every peace-loving homeowner to the same sort of headshrink.
Baloney spumoni. Every violent crime is a hate crime. And just as a gay man has the right to defend himself if he’s attacked on the street — without having to endure endless speculation about what his attacker might have been thinking before picking on him — ANY homeowner, car-owner or pedestrian has that same right.
It was all the touchy-feely, psychobabbling nonsense from the Left that permitted our society to become so violent in the first place. Of course they propose still more baloney to “deal with” it.
posted by ETJB on
(1) No a hate crime law that includes sexual orientation does not say that a gay person’s life is worth more then a straight person’s life.
If a straight person is targeted for a crime because they are straight, that would be a hate crime.
(2) Lori; have you gotten your evidnece about Thomas Jefferson, the U.S. Constituition and your argument about civil rights?
posted by North Dallas Thirty on
Then one would think, ETJB, you would be demanding that the Jena 6 be prosecuted for a hate crime, since they assaulted a student based on his skin color.
That is, if one weren’t aware that “hate crimes” laws are actually special-privilege laws meant to ensure that crimes against people are punished differently based on the skin color or whatnot of the victim.
posted by ETJB on
North Dallas Thirty;
(1) The Jena 6 are (like every defendent) innocent until proven guilty in a court of law. The Constitution and the law have clear procedures to be followed whenever anyone is accused of a crime.
(2) The Jena 6 were not charged with a hate crime. That suggests (a) no such law exists in the state and/or (b) the prosceq did not feel that it was such a crime.
posted by ETJB on
By all means, the people who did beat up that student should be located and punished accordingly to the law.
Just as the students who made the death threats should be punished accordingly to the law.
posted by Lori Heine on
“Lori; have you gotten your evidnece about Thomas Jefferson, the U.S. Constituition and your argument about civil rights?”
ETJB, I have already addressed you on both issues, in great detail and to great degree. You simply choose to ignore what I have said. Which isn’t too surprising, since most of your side of the argument has been based upon fiction and fabrication.
As for your fantasy that you are a “liberal” libertarian, that too is sheer fabrication. If you believe that employers should be forced by law to hire people they don’t wish to hire — and forcibly kept from firing those they don’t — then you are no sort of a libertarian at all — left, right or sideways.
Furthermore, the burden of proof that you are a libertarian of any sort, or that your argument — such as it is — has any libertarian component whatsoever — is strictly upon you.
Happy little artful dodge of an Irish jig, babe.
posted by North Dallas Thirty on
That suggests (a) no such law exists in the state and/or (b) the prosceq did not feel that it was such a crime.
Sorry, but you and your fellow leftists disallowed both excuses in demanding that the students who hung the nooses be punished for a “hate crime”. You and your fellow racist liberals claimed it should have been prosecuted under Federal law and that the prosecutor had no right to make that determination.
Now, since you want to prosecute noose-hangers for hate crimes, certainly you should want to prosecute people who violently assaulted someone because of his skin color for hate crimes.
posted by ETJB on
Lori;
So you oppose civil rights laws because they violate employees right, but you can offer no credible evidence to make us this claim and you can keep switching your source; first it was the Constitution, then it was because it was quotas and now it was Thomas Jefferson.
Right-wing Libertarians love to pretend that their are no Left-Libertarians, mainly because the Libertarian Left was here first.
You clearly know little about the right-wing philosophy that you claim to promote. Their is an extensive amount of literature about left vs. right-wing libertarianism and its historical context.
The burden of proof? Setting aside the fact that courts might not exist in a libertarian nation, it is on you. You want to abolish civil rights. You and your right-wing buddies want to radically change the nation, its laws, constitution, society and culture. You have to make the case what such change is good, just, etc.
posted by ETJB on
I said: That suggests (a) no such law exists in the state and/or (b) the prosceq did not feel that it was such a crime.
You said: Sorry, but you and your fellow leftists disallowed both excuses in demanding that the students who hung the nooses be punished for a “hate crime”.
I do not speak for anyone else but myself. What other people — on the left or right — claim does not make it true or false for that matter.
If their was no ‘hate crime’ law on the books (when the crime occured) then the students who made the death threats can not be charged with a hate crime.
If their was a Federal hate crime laws on the books, then can it apply to such a situation or does it only apply to crimes that occur on federal land?
“Now, since you want to prosecute noose-hangers for hate crimes…”
Do you have some type of learning disability? I never said that I wanted to prosecute the students who made the death threat with a ‘hate crime’.
“You should want to prosecute people who violently assaulted someone because of his skin color for hate crimes.”
(1) I do not want to punish anyone for a crime, unless the government follows the legal-constitutional due process rules that apply. I believe in the Constitution, people such as yourself often do not.
(2) IF their was a hate crime laws on the books (that applied) then I would think that both the kids that hung the nose and the kids that beat up a fellow student could be charged with it.
(3) The fact that neither group of young defendents were charged with a hate crime suggests that no such applicable law exists or the state felt that these were not hate crimes.
(4) Also the students that hung the nooses were punished for violating school laws, not state or federal.
posted by Lori Heine on
“You clearly know little about the right-wing philosophy that you claim to promote.”
I am not trying to promote a “right-wing” philosophy. I am trying to promote basic common sense.
How do you propose to keep homophobic people from forcing gay-friendly companies to hire them, or from forcing them to keep them on, even after they have begun persecuting their gay coworkers? You flatly refuse to answer that question.
The real answer is that you can’t. Once you have taken away an employer’s right to choose his or her own employees, you have destroyed the very basis for that.
Libertarians — of ANY stripe — do NOT believe that a private employer should be ordered, by the government, to employ people they do not wish to employ.
Kindly cite a source that says they do. Then quote it. Bring on game, or quit bluffing.
posted by ETJB on
You said: I am not trying to promote a “right-wing” philosophy. I am trying to promote basic common sense.
No, you are trying to promote the Libertarian-Right. You may think that it is ‘common sense’, but it is not.
You said: How do you propose to keep homophobic people from forcing gay-friendly companies to hire them…”
Well, I am still waiting for you to provide some credible evidence that civil right laws are unconstitutional or violate the employees rights. You keep shifting your argument on this topic again, and again, and again.
Much less, how — in your libertarian utopia — would we be able to deal with civil rights violations?
However, since I am not as immature as you; Workplace harassment is covered by civil rights laws.
You said: Once you have taken away an employer’s right to choose his or her own employees…”
Again, you have failed to demonstrate that an employer has such a right.
You said: Libertarians do NOT believe that a private employer should be ordered, by the government, to employ people they do not wish to employ.
I can suggest several books on Left-Libertarianism;
You on the other hand, have been unable to support the claims you make with much beyond personal attacks and bumper sticker slogans.
*Rothbard, Murray N. (2007). Left and Right: A Journal of Libertarian Thought (Complete, 1965-1968). Auburn, Alabama: Ludwig von Mises Institute, USA.
*Otsuka, Michael (2005). Libertarianism Without Inequality. City: Oxford University Press, USA. ISBN 9780199280186.
Vallentyne, Peter (2000). Left-Libertarianism and Its Critics. Basingstoke: Palgrave. ISBN 9780312236991.
*Vallentyne, Peter (2000). The Origins of Left-Libertarianism. Basingstoke: Palgrave. ISBN 9780312235918.
posted by Lori Heine on
“Well, I am still waiting for you to provide some credible evidence that civil right laws are unconstitutional or violate the employees rights.”
ETJB, you will only twist whatever I say — again — for your own dishonest purposes. But I will try one more time.
I do not believe that civil rights laws are unconstitutional. Since the Constitution’s purpose is to fix boundaries on government power — and not to enumerate every single civil right we have, when grandstanding politicians pass ever more laws to “give” us rights we already have, I’m saying it is unnecessary. Who said that? I did. I’m citing the source right now.
Nor did I ever specifically say that civil rights laws violate employees rights. That is a nutty thing to even accuse me of having said.
What I said (and am now saying for at least the third time) is that homophobic Christians — now energetically employed in the strategy of crying and bitching about supposed violation of their own civil rights — can just as easily use legislation that restricts whom companies can hire or fire AGAINST gays.
You know damn well that’s what I said, unless you’re just stupid. I doubt you’re THAT stupid, which means that you are deliberately distorting what I said. Which is called LYING.
posted by Lori Heine on
And as for any of the books you listed here, quote (providing chapter and verse) where ANY of them claim it is “libertarian” for the government to restrict the hiring and firing choices of an employer. I’m still waiting.
posted by ETJB on
Lori;
I see that you are still dodging the question, and trying to use a smoke screen of personal attacks and historical distortions.
The Libertarian Party does oppose civil rights laws. They believe that such laws violate the property and associative “rights” of the business /land owner.
You have been trying to defend this position, while at the same time denying that it is part of the LP’s agenda.
We do not have a constitutional right to employment, education, housing, health care, etc. Maybe we should, maybe we should not, but that is not what the constitution says now.
However, ‘civil rights’ help to ensure equal opportunity or a merit based system. They amend something like ’employment at will’ so say that you can not fire a person or refuse to hire them because of certain reasons; i.e. race.
It does not mean that you have to hire them or cannot fire them. It means that certain factors are not suppose to be used in make certain decisions.
Civil rights laws and Affirmative Action are Constitutional. Aside from the Libertarian Right, few people believe they automatically violate associative/property rights.
The Libertarian Party is probably the only political faction in the nation that opposes such laws.
Now let us get to your recent example;
A homophobic Christian employee would not be able to harass and other employees in a business of a certain size (determined by law).
They could not be fired for being heterosexual (ENDA) or a Christian (1964). But if their is harassment, then their could be a problem.