For more than a decade, liberal lawmakers have argued that federal "hate crimes" laws should be expanded to include sexual orientation among the categories that have been protected since the first such statute was enacted in the 1960s.
On Oct. 8, the House of Representatives approved the Matthew Shepard Hate Crimes Prevention Act, named for the young gay Wyoming man who was tortured and killed by thugs who now wallow in prison under life sentences. The U.S. Senate passed its version earlier this summer, and the two versions were reconciled by a conference committee.
In both the House and the Senate, this proposed hate-crimes law had been incorporated, with no hint of germaneness, into each chamber's Defense Authorization bill (numbered HR 2647 and S 1390, respectively). The latest version was passed on by the House on a 281-146 roll-call vote. Senate action will be virtually pro forma and is expected to take place soon.
Arguments against hate-crime laws often focus on the "thought crime" aspects of such legislation - noting that a criminal convicted of assault will have his punishment enhanced based upon words he said before, during, or after committing the act.
As retired Hunter College Professor Wayne Dynes once noted, hate-crime laws, if they are to be applied in a constitutional manner, must be content-neutral. He gave this example: "Countless numbers of people, aware of the unspeakable atrocities under his leadership, hated Pol Pot. This hate was surely well warranted. If one of the Pol Pot haters had killed him, would this be a hate crime? Why not?"
Dynes, editor of the Encyclopedia of Homosexuality, added: "In seeking to exculpate the killer, we would get into the question of whether some hate 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."
What is particularly disturbing about the Matthew Shepard Act, however, is that this bill federalizes crimes that properly belong under state or local jurisdiction. It signifies creeping encroachment of federal law on state prerogatives and the dulling of the distinction between the central government in Washington and the various state governments.
Previous federal hate-crime statutes were written when state and local authorities often looked the other way if crimes of violence were committed against members of minority groups. These laws were narrowly focused and meant specifically to prosecute crimes against victims engaged in a federally protected civil-rights activity (such as helping to register African-Americans to vote).
The current bill says the federal government can step in to prosecute a case if "the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence." In other words, if a U.S. attorney dislikes an acquittal or the punishment of someone convicted under state law, he can re-open the case as a federal matter.
By Orwellian logic, this kind of re-prosecution does not violate the Constitution's prohibition on double jeopardy, because the same act becomes two separate crimes - one state and one federal.
Violent crime against any person is deplorable. Fortunately, state and local governments no longer routinely look away when crime victims belong to socially disdained groups. Hateful thoughts may be disagreeable, but they are not crimes in themselves. The crimes that result from hateful thoughts - whether vandalism, assault, or murder - are already punishable by existing statutes.
There is no good reason to expand the reach of the federal government to fight "hate crimes." That would do violence to the Constitution itself.
16 Comments for “An Unbalanced Bill”
posted by TS on
I am 100% with you on this. And sometimes I feel like the only one.
posted by BobN on
Fortunately, state and local governments no longer routinely look away when crime victims belong to socially disdained groups.
Really? And this claim is based on what exactly?
posted by Amicus on
By Orwellian logic, this kind of re-prosecution does not violate ….
====
humm….
So, you were fine that lynching was going on all those years and the U.S. Senate never made it a Federal issue?
You do understand that burning a church, an attack on property, has more federal support for investigation, etc., than do assaults on gay people, yes?
posted by TS on
Gosh almighty, Mr. Sincere. We have no friends on this.
BobN, this issue indeed hasn’t been researched in detail, but I feel quite confident that by and large, most local enforcement agencies are being more fair in equitable prosecution of crimes nowadays, for reasons including PR-conscious government and the breakdown of “good-old-boy” subcultures.
AND even if S and L authorities looking away instead of prosecuting bias-motivated crimes, it would still be hard to persuade me a federal hate crimes law is the answer. See below.
So, you were fine that lynching was going on all those years and the U.S. Senate never made it a Federal issue?
Amicus, you said “So, you were fine that lynching was going on all those years and the U.S. Senate never made it a Federal issue?” seeking to imply that Richard Sincere is a proponent of hate crimes. Please don’t do this; nothing could more effectively de-elevate the discourse.
“By Orwellian logic, this kind of re-prosecution does not violate ….” your mocking truncation of Mr. Sincere’s intricate argument illustrates you don’t understand it. Of course a problem with hate crimes is that they criminalize thought instead of action. As an LGBT person (I assume), you should be very strongly opposed to a legal culture that criminalizes thought as readily as action. The most powerful political bloc in America wants to criminalize your sexual thoughts, after all. But there is also the issue of constitutionality. Most people are fans of the constitution’s ban on double jeopardy- without it, the government could falsely accuse you of a crime, and if the trial returned a result the government didn’t like, they could just keep trying with new juries until they finally won. Hate crimes legislation’s explicit purpose is to allow the federal government to step in if they don’t like the state justice system’s verdict. As LGBT people, we hate to think that some hick court in Alabama would let a gay basher walk free. But a much direr threat to us all is if the federal government is allowed to erode double jeopardy.
“You do understand that burning a church, an attack on property, has more federal support for investigation, etc., than do assaults on gay people, yes?” Here you refer to inequitable legal treatment, a somewhat thornier issue. E.G. do I support gay marriage, an equitable application of current law, even though I believe religious groups should marry people and governments should grant them civil unions? Do I support HC legislation I am opposed to because it applies to other groups? So you’re right to point that out. But the answer is not exactly obvious.
posted by Amicus on
TS,
You intuition is both correct and not accurate. It is understood that certain crimes, including bias crimes against LGBT folks, is under reported. Part of the problem with with local law enforcement. Part of the hope of national hate crimes legislation is to provide training dollars to local law enforcement as well as money for investigations.
I didn’t mean to imply that Mr. Sincere was a proponent of hate crimes. I did suggest, however, that his arguments leave him open to the charge that he has no remedy for, say, lynching, which was carried on right under the noses of local law enforcement (and often enough with its tacit consent).
When there is a criminal action, there is a criminal thought. I am not opposed to the courts or law enforcement seeking evidence of a criminal thought that we might label a hate crime.
Last, as I noted, I’m unimpressed by those who propound parsimony, then “make a federal case” out of church burning. As horrible as church burning is, especially in its principle context in America, I’d like to think that my values put people ahead of property. You?
posted by Amicus on
begging pardon:
“is under reported” s/b “are under reported”
“Part of the problem with with” s/b “part of the problems is with”
“I am not opposed to” for clarity, s/b “In that context, “I am not opposed to”
posted by TS on
“It is understood that certain crimes, including bias crimes against LGBT folks, is under reported.” Understood by whom? I readily admit I’m not one of the experts on this topic. I also know it’s flawed for me to use anecdotes in support of a generalization like I’m about to. But here goes nothing.
a) I am out and I live in Oklahoma, in one of the thicker bands of the Bible belt. Of course, I do spend most of my time on the campus of a secular university- still plenty of fundies around. I have never faced a bias incident. Never a nasty remark to my face or even anything behind my back. Certainly no violence. I suspect many people who follow the simple social principle of “spend time with those who appreciate you and you can trust, avoid those who aren’t interested in knowing you and you can’t trust” have the same experience as me.
b) The vulgar trope in gay-themed literature and film of “bashing,” “hate,” “getting kicked out by evil parents,” etc. This seems to be a plot element in basically everything in the genre. Perhaps this colors people’s perceptions about what are actually quite rare incidents.
c) I’m aware of the danger of blaming the victim. But there are two things to have in mind. One is that bias crimes are almost never visited upon people who keep to their own kind, mind their own business, and get to know new people slowly and safely. The second is that some (maybe a few, maybe quite a few) accounts of “hate” are lies, concocted for political purposes or simply for personal gain. Fundamentalist believers and other “oppressed minorities” have been caught doing this too. I once dated a guy that told me his parents had kicked him out for being gay and he had been gay bashed in his home town. I felt terrible for him, and wanting to be more sensitive to his emotional needs, I asked others for more information. I found out that they were lies. He stopped getting along with his parents because he moved in with some meth heads and tried to keep getting his parents to pay his rent. He had mental health issues, obviously.
posted by TS on
“When there is a criminal action, there is a criminal thought. I am not opposed to the courts or law enforcement seeking evidence of a criminal thought that we might label a hate crime.” This is certainly the next level of discourse about the role of intent in meting out justice. I have never understood the obsession with intent. To me, there are only two levels of intent in a homicide: non-intent (reckless overconfidence in which the perpetrator didn’t believe his dangerous behavior would lead to death) and intent (having too little value for the importance of human life and civil coexistence- and thus being willing to kill for whatever reason). Suppose X kills my dear friend Y. In all cases, I will be aggrieved by the loss of Y and want to see X brought to justice. Only if X didn’t intentionally kill Y would I feel it was just to treat X more leniently. Otherwise, I don’t care if Y died because X hated gays, hated people who slept with his ex, or simply hated going without heroin and noticed Y had a full wallet. Y is dead, and X is culpable. May god have mercy on X’s soul, because I won’t.
posted by TS on
“As horrible as church burning is, especially in its principle context in America, I’d like to think that my values put people ahead of property. You?” Sure I do. Existing case law, unless it has been bought by the rich already acknowledges that hurting a person is more serious than taking or destroying property. Which brings me to my final point.
Simply having hate crimes laws isn’t some magic protection against bad government. You need good people in government, or every aspect of life in the sphere of government, from justice to the forest conservation budget, will suck. You can pass good laws until you’re blue in the face, but bad government will find a way to circumvent them. If good, just people are our rulers, they will appoint professional jurists who understand that the law is not about who is more popular or nicer looking- it’s about fairness. Even if the judge at such a court hated gays, he would sentence a convicted hate killer harshly because that hate killer, by putting some stupid idea ahead of human codependency, is more of a menace than gays will ever be. And if we have bad rulers who appoint dumb cronies for their jurists, we are all screwed. Hate crime laws won’t protect us.
posted by Amicus on
TS,
Understood by whom? Well, local enforcement and others who deal with victims, including battered women and so forth. Local law enforcement groups/associations, by the way, have supported hate crimes legislation.
On your observations, a-c, I think you make the case why these crimes can be most ugly: ‘keep to your own’ (hardly a liberation goal) or you may get what you got coming; if you speak up over bias, someone will suggest that it is your fault, since ‘that kind of language or crime’ just doesn’t happen around here; these incidents are rare or exaggerated, so that if something happens it has to be an oddity and, in any case, the law shouldn’t take notice.
On this last point, if incidents are so rare, why all the visceral hoopla over adding gays to the list, from the Right (it doesn’t add up)?
The bottomline is that there is a bottomline to prosecuting hate crimes and quite a few are just too cheap to pay for it, for whatever ideological reasons they make up.
On your last, I’d like to believe that everyone in society is “good”. Until then, remedies, such as Matthew Shepard Act, are just fine with me. Sadly, a lack of courage among some Senators has kept these laws in abeyance.
posted by TS on
Amicus,
Sorry I have such a wordy opinion about this. If I had more time, I would hack at it to pare it down.
“On your observations, a-c, I think you make the case why these crimes can be most ugly:” The reason I tried to use such careful language is because crime victimization is one of those issues where people seem to relentlessly avoid the middle ground. I try to make it clear that I am a centrist. For example, liberals typically say the criminal is the victim, society has failed him. Conservatives always say criminals are bad people who deserve to be locked away for doing bad things. Both groups always argue that the other side’s perspective must be ignored because if you see the other side’s point, you might forget the importance of their side’s point. This is stupid because it assumes you have to accept one and ignore the other. I don’t think that’s true of the motivation for crime, or of the patterns of victimization.
” ‘keep to your own’ (hardly a liberation goal)” I know. Liberation? Nothing. You might feel liberated, but you are not free to belong somewhere, even though you are free to be there. Harmony is not how diversity, or anything in the world, typically works. Things grind against each other, and sometimes sparks fly. Some people seek out the grinding edge. There’s a long way between they deserve to be ignited and we shouldn’t be surprised if they ignite.
“or you may get what you got coming; if you speak up over bias, someone will suggest that it is your fault, since ‘that kind of language or crime’ just doesn’t happen around here; these incidents are rare or exaggerated, so that if something happens it has to be an oddity” I know the dangers of blaming the victim. Blaming the victim has no place in court, law, or justice for the offender. But it does have a place in referring to whether types of crime are a serious, anomalous problem or something to be expected. Observing the following drastically reduces one’s risk of becoming a victim in ANY kind of violence crime, not only a hate crime but all violent crimes besides stranger-on-stranger (which is very rare): 1. If a family member or signigicant other is abusive or deeply troubled, take steps to protect yourself and do what you can to get help for the other person. If you are murdered, it is most likely to be a member of your family or your S.O. 2. Observe the safety rules when meeting new people- do it in public, stay in public until you part, and get to know other people connected with the person (friends or family members) before delving into a lasting relationship of any kind. 3. Travel safely, with companions and with access to communication. 4. Be wary whenever you feel uneasy. If you enjoy the thrill of putting yourself in uneasy situations, you do accept the risk, although of course, you do not deserve to be the victim of a crime and anyone who victimizes you deserves to be brought to justice.
“and, in any case, the law shouldn’t take notice.” Certainly not. It is infinitely valuable for law enforcement professionals to be well versed of trends in crime or patterns in motivation and intent. However, I don’t see the point in courts doing the same, except inasmuch as it helps determine the truth or falsehood of the crime. All who demonstrate, through an act of violence, a value system that places some want (for sex, drugs, wealth, etc.) or some ideology (political, religious, etc.) above respect for the rights of others to be free from nonconsensual harm are of roughly equal affront to the concept of justice.
posted by Amicus on
TS, quickly, now:
You don’t seem centrist. For the sake of argument, if some gay person acts provocatively, but non-violently, it still does not validate some type of ‘gay panic’ defense for a violent act.
You seem to suggest that it would be okay, on your reckoning, if someone were to hang up a “no gays wanted” sign, formally or no, and that anyone who protests so much isn’t understanding freedom properly and anyone who challenges that ought to expect sparks to fly…
I’d suggest that most bias crimes, gay-related or otherwise, are motivated by exactly that, bias, not by some extraordinary amount of taunting or crossing of the ‘personal safety’ line, as you seem to postulate.
“It is infinitely valuable for law enforcement professionals to be well versed of trends in crime or patterns in motivation and intent.”
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If it is infinitely valuable, then why did some, like Trent Lott, if you want to go way back, vote against Federal funding for even keeping statistics on such things, even when ‘sexual orientation’ was removed? I know my own not so flattering answer, but I’d be interested in yours.
The Federal statistics programs that exist rely on local reporting. Many believe that reporting has historically been bereft, in some areas of the country. And, the title of the legislation includes, after all, “Local Law Enforcement”.
posted by TS on
“For the sake of argument, if some gay person acts provocatively, but non-violently, it still does not validate some type of ‘gay panic’ defense for a violent act.” Gay panic is a crap defense, right down there with twinkie and McDonalds’ hot coffee is too hot. I thought I made clear that somebody who thinks some abstraction is more important than not hurting others deserves to rot.
“You seem to suggest that it would be okay, on your reckoning, if someone were to hang up a “no gays wanted” sign, formally or no, and that anyone who protests so much isn’t understanding freedom properly and anyone who challenges that ought to expect sparks to fly…” Let me change that from suggesting it to saying it. Only on private property, of course. I don’t understand why someone would be outraged about Mormon police carrying kissing gay couples off of their private property. And I can’t think of one good reason why a gay guy would go into a privately owned bar clearly inhabited by anti-gay hicks. What friends would he meet there? What would he do? The only reason I can think of is because he likes flying sparks.
“I’d suggest that most bias crimes, gay-related or otherwise, are motivated by exactly that, bias, not by some extraordinary amount of taunting or crossing of the ‘personal safety’ line, as you seem to postulate.” Yes, obviously. Because the criminal does the act, his bias is the motive. The issue is, is this particular motive somehow more severe than others?
“If it is infinitely valuable, then why did some, like Trent Lott, if you want to go way back, vote against Federal funding for even keeping statistics on such things, even when ‘sexual orientation’ was removed? I know my own not so flattering answer, but I’d be interested in yours.” That Trent Lott is a stupid cow. A government that intends to fight crime should know its enemy very, very well. Only a fool would disagree.
posted by Amicus on
uh-oh, we disagree again! I suspect that McDonald’s coffee _was_ too hot. The twinkie, on the other hand …
Private property is an artificial construct. If something is wrong, it is wrong, doesn’t matter where it occurs. If you rape someone, it doesn’t matter if you do it in your home. If you exclude someone, some group based on bias, doesn’t matter (to me) much where you do it.
And I can’t think of one good reason why a gay guy would go into a privately owned bar clearly inhabited by anti-gay hicks.
——
Within some reasonable limits, I can’t believe that anyone is conceited enough to think that, in this day and age, they can run an “us-only” bar, without eventually just inviting trouble to their door. The history of such ‘organization’ is replete with examples, of how it all goes wrong, at some point.
The problem is that Trent Lott isn’t stupid, in the plain sense of the term. He’s politically clever and very eloquent. He wanted to protect his state from ‘looking bad’ to others, statistically or otherwise. To rationalize it, they made a case, somewhat similar to yours, that it – the black problem – was all being handled, in a locale-suitable way. Yeah, right…
posted by Amicus on
I should leave room for the ordinary space needed to round this out, “doesn’t matter (to me) much where you do it.” Confessional groups obviously have a need to draw some lines, or their group might be nonsensical per se.
posted by Amicus on
is this particular motive somehow more severe than others?
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yes, I think that much is plain. The symbolic nature of these crimes makes them worse. And it goes beyond motive, too. In any number of cases, one hallmark of hate-crime is excess of one kind or another.