Hate Crimes Legislation

Lot of hate blogging all of a sudden. Weird.

Anyway, the Senate will soon be taking up S. 909, which adds gender identity and sexual orientation to the list of groups protected by existing hate crimes legislation. Which, like every other piece of legislation related to gay rights, brings out the crazies. Most of the opposition to this bill is somewhat disingenuous - since the bill only adds to the list of protected classes in current hate crimes legislation, the concept of "hate crimes" is not really at issue here, and it seems only logical that if we're going to have "hate crimes" be a class of crime, crimes committed out of hatred towards gay people ought to fall under that category. And the bizarre argument I hear the most against S. 909 (also called the Matthew Shepard Hate Crimes Prevention Act after the gay Laramie, Wyo. resident beaten to death because of his sexuality in 1998) is that the legislation will somehow make hatred of gay people, or denunciation of homosexuality by churches, a prosecutable offense. This is a patently absurd argument - for something to be a hate crime, it must first be a crime, and usually a violent one. Unless preaching is outlawed, anti-gay preachers have nothing to worry about.

(To be fair, I've heard some weird arguments from the left as well, mostly along the lines of accusing detractors of being in favor of beating up gay people. Last time I checked, beating anyone up is illegal, and would remain that way even if S. 909 fails.)

Wackos notwithstanding, though, there are some good arguments from both supporters and detractors of hate crime legislation in general. It is these arguments I want to look at.

The main argument against hate crime legislation is that it punishes a perpetrator for the thoughts in their head as opposed to their actions. Bigotry is distasteful, of course, but it's hardly illegal, nor should it be. Moreover, punishing someone more for committing a crime out of hate is tantamount to adding prison time for "thoughtcrime," which is not the American way. This is a reasonable argument - we should avoid punishing people for their thoughts.

It is, however, a spurious argument - we already, in many cases, make sentencing decisions based on the perpetrator's thoughts. Is the perp remorseful? If so, he'll probably get a shorter sentence. Ditto if the motive behind the crime was noble (say he robbed a bank in order to pay for Mom's medical bills). These are ad hoc jury/judge decisions of course, but they are frequently codified. If you kill someone, for example, the thoughts in your head are extremely important in determining the crime you committed and the sentence you receive. Did you do it on accident (involuntary manslaughter)? Did you try to hurt someone but not kill them (manslaughter)? Did you want to kill them but do so as a "crime of passion" (second-degree murder)? Did you plan out the whole thing (first-degree murder)? It's not a huge leap to go from here to "did you kill him out of race/sexuality/religion/gender hatred?"

The question, then, is why should we make that distinction? What is it about hate crimes that makes them worth differentiating? The argument is that a hate crime isn't just a crime against another person but a crime aimed at an entire group of people. It's an act of terrorism, so to speak - the goal of the perpetrator is not just to beat up some gay dude but to force all gay people to accept their supposed subordinate status in the social order. Therefore, the crime is more pernicious than just a simple beating, and ought to be punished as such.

The fact is that we punish crimes based on their effect on society already. We punish manslaughter less than murder because the latter has a far more deleterious effect on society than the former. In a case like a hate crime where the negative effect on society is multiplied by the perp's motive, it just makes sense to punish the crime more.

The other argument against federal hate crimes legislation is that it gives to the federal government powers that ought to remain in state hands. Why should a hate crime be a federal issue but a regular crime be a state issue? That's a good point, but there is a role for the federal government here since (as I mentioned earlier) an attack on a gay man anywhere is in essence a crime against gay people around the country. But a federal prosecution seems uncouth, since the crime itself probably did not take place across state lines (like kidnapping or trafficking, say). I would restrict the federal government's role in hate crimes prosecutions to a strictly advisory and assisting role. This lets states take the lead in their own law enforcement, while allowing the feds to step in to help if necessary.

Astute observers will note that I've "flip-flopped" on this issue in the past few years. So I'll reiterate that I reserve the right to change my position on any issue at any time, for any logical reason, so there.