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November 5, 2009
Exclusive: Hate Crimes and the Rule of Law, Or, Are Gays the Next Spotted Owls?
"It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood." —James Madison
It is said that you don’t know what you have until you lose it, and this adage certainly applies to the rule of law. Judged by its rarity, lawfulness is certainly not society’s default option so sustaining it requires constant vigilance. It is all too easy for it to erode, bit by bit, and vanish altogether, death by a thousand cuts so to speak. Just visit any number of African or Middle Eastern nations to experience the joys of lawlessness.
One of these cuts, albeit of a tiny nature, occurred on Wednesday, October 28, 2009 when, in the presence of numerous gay activists, President Obama signed into law a measure that increased punishment for crimes if they were based upon the victim’s sexual orientation, or to be more precise, a crime directed at a gay, lesbian, transgendered or transsexual person (such protection based on race, ethnicity and other traits already existed). In the President’s words, “…we’ve passed inclusive crime legislation to help protect our citizens from violence on what they look like, who they love, how they pray or who they are.” Perhaps to rub a little salt into the wounds of Republicans who opposed this legislation, it was included in a bipartisan bill to increase funding for the military.
Some background: Unlike some European hate crime laws, the American versions (45 states now have them) do not make “hate” a stand alone crime. U.S. laws are “penalty enhancers” that toughen punishment when the crime is motivated by aversion based upon race, sex, sexual identity, physical appearances or what ever else legislators decide. In principle, this resembles making armed robbery a more serious crime than just plain old robbery. The intent is to shield some groups (or inanimate objects like churches) from violent crime, not a legal instrument to deter crime more generally. Think of a bird hunter who must avoid spotted owls, bald eagles, whopping cranes and condors when blasting away.
Lofty intent aside, hate crime laws are deeply pernicious. It is hard enough preventing garden variety crime but the burdens on law enforcement are now far heavier. Consider establishing motive, a critical element when extending a prison sentence. How can we know that a mugger singled out the elderly Chinese lady because she was Chinese? What if it was dark and he attacked her from behind? Perhaps he knew she carried lots of cash and her being Chinese was totally incidental. Needless to say, this “How did you select your victim?” question can be a courtroom nightmare, since many hate crime relevant traits, e.g., sexual identify, religion and mental disability, are seldom visible.
So, reducing hateful crimes now will resemble teaching fighter pilots to recognize enemy aircraft in the blink of an eye – before you pounce, first firmly establish the ethnicity, race, sexual orientation, mental status, age, illness, disability and religious beliefs of the victim so as to avoid extra time in state prison or, if you can’t resist, never, never attack groups that are politically influential. In other words, political correctness now applies to criminality. Who said being a criminal was easy?
Actually, this is only the beginning given the vagueness of categories. Some state hate crime laws protect “the disabled” but what, exactly, is a disability? Government agencies endlessly wrestle with this when awarding benefits so would-be prudent criminals must do some homework. Might the legally disabled attach bright orange sticker to their clothing to alert miscreants just as the immobile must display government-issued permits to use reserved parking places? The 1994 federal Hate Crime Sentencing Enforcement Act makes it a crime based on perceived traits, so if the killer mistakenly viewed the victim as black he could run afoul of the law even if the victim was a WASP. Visitors to crime- infested neighborhoods might be advised to rent seeing-eye dogs and limp to deter attacks, since mugging them might bring extra years in the slammer. If the crime targets a person due to religion, what, exactly, is a “religion” in today’s world where Scientology, witchcraft and countless cults claim to be “religions”? Should a thug inquire first? What if the answer is “secular Jew”? Wise criminals should study theology.
For those who might consider these illustrations as unrealistic ploys to undermine protecting the vulnerable, consider Nicholas Minucci, a 19-year-old white male charged with a hate crime (in addition to assault) and who spent a year in jail, unable to post $500,000 bail, for attacking three black teenagers. The alleged proof of the racial hatefulness was, supposedly, uttering, “What’s up N***er.” to his intended victim. The accused insisted that the victim was out to commit a robbery, and he greeted him with, “What’s up nigga,” not “What’s up N***er “ with the former phrase being an inoffensive “Hip Hop” greeting in the overwhelming black community in which Minucci grew up. In short, the defense against that hate crime accusation was that the “a” at the end of “Nigg” was a conventional, inoffensive salutation, not the “er” vile slur version.
During his June 2006 trial, experts argued over how, exactly, N***er” and “N**a” differed. Black Hip Hop record producer Gary Jenkins expertly explained that he would require additional information about Minucci’s cultural milieu before he could say, precisely, what was said. Noted Harvard Professor, Randall Kennedy, a scholarly expert on the “N” word and an authority on “race linguistics” testified that the “N-word” does not necessarily imply racial animus, and may even convey endearment. After a jury deliberated for two days, Minucci was convicted of first-and second degree robbery plus a hate crime, which extended his prison term.
Hate crime legislation is intended to “send a message” that attacking somebody for “who they are” warrants heavier punishment. But, there are additional, seldom articulated lessons, and these are far from upbeat. First, these laws promote a victimization Olympics that, ironically, only grows as actual bias-related crime declines. Homosexuals, the disabled, members of multiple ethnic/racial groups are far better off today than a century back, yet they insist on just the reverse. Must America become a nation where every group is a certified object of hate? Home of the brave now becomes home of victims perpetually dependent on government protection.
Second, as congressional Republicans correctly understood, these laws criminalize thought – not behavior – as if judges and jurors could determine, beyond a shadow of all doubt, what criminals had in mind when they committed their offense. Worse, creating “thought crimes” will surely energize experts to devise ways to peer into brains to discover “hate,” even if subconscious. So much for privacy. This alarm is not hyperbole – the scientific devices already exist and have been extensively tested though the results are not yet legal evidence but this unwelcome intrusion is only a matter of time.
Third, law as an instrument of social control is misapplied to boost egos, not reduce crime, an act comparable to naming a street after Martin Luther King, Jr. The opportunity costs are, however, substantial though easily ignored. Justice delayed is justice denied, and courts should not waste time deciding, for example, if beating a heterosexual is a hate crime since the perpetrator erroneously believed the victim to be transgendered. Defending against the hate charge can also increase lawyer fees and the need to call expert (often paid) witnesses (recall the Manucci trial). Proving assault is difficult enough without the extra burdens of demonstrating hatefulness.
Finally, effective justice requires legitimacy, a pervasive belief in its fairness and appropriate outcomes. People don’t obey laws if they believe the system to be corrupt or unfair. Legitimacy is fragile and when lawyers quibble about whether some young man said “N**er” or N**a” and if the verdict brings extra prison time, can anybody respect such a system? Why should some groups but not others receive extra special protection? Political muscle, obviously. Hate crime laws also guarantee legal chicanery by fantasizing about un-witnessed events and garbled utterances, let alone relying on mind-reading skills known only to storefront psychics. Add the inevitable plea-bargaining that comes from multiple offenses surrounding a single act and potential double jeopardy given both state and federal statutes and the stage is set for judicial over-kill. Read Madison’s warning above.
These laws will not reduce crime other than extend sentences of those convicted of real crimes. And if they work as advertised, and all the criminals do their homework to avoid harsher punishment, the only unsafe Americans will be white, physically and mentally healthy, plain vanilla appearing heterosexual males holding fuzzy religious beliefs. Disclaimer: that’s me. In other words, hate crime laws are endangered species protection acts for those who can claim, regardless of facts, some awaiting victimization. This is, sad to say, change we can believe in.
FamilySecurityMatters.org Contributing Editor Robert Weissberg is emeritus professor of political science, University of Illinois-Urbana and currently an adjunct instructor at New York University Department of Politics (graduate). He has written many books, the most recent include The Limits of Civic Activism, Pernicious Tolerance: How teaching to "accept differences" undermines civil society and the forthcoming, Bad Students, Not Bad Schools: How both the Right and the Left have American education wrong (early 2010). Besides writing for professional journals, he has also written for magazines like the Weekly Standard and currently contributes to various blogs.
Reader Comments: Submit Your Comment (2) | Sign Up for FSM Updates!
Thanks for this very enlightening discussion. I always knew hate crimes were ridiculous, now I know many more reasons why, intuitively, they are. We need to stop this in its tracks.
posted by: Amelia willson
Thursday, November 5, 2009 at 02:56 PM
Hate Crimes laws shouldn't be necessary.
Everyone should be treated equally.
The data shows that they're not being though. In some places, getting local law enforcement to give justice to gays is like trying to get local law enforcement to give justice to blacks in the Deep South 100 years ago.
If the KKK'er burning down the church is the local sheriff, or if a Texas Judge asks in all sincerity "So it's illegal to beat up gays in Texas now?" then such laws, repugnant as they are, are necessary.
posted by: Zoe Brain
Friday, November 6, 2009 at 08:18 PM
