Federal Hate Crimes Legislation

My name is Daniel Troy. I am an associate scholar at the American Enterprise Institute in legal studies and a partner at Wiley, Rein & Fielding, where I specialize in constitutional and appellate litigation. I have argued cases on constitutional and administrative law before the United States Courts of Appeal as well as the United States Supreme Court. I recently wrote a book for AEI entitled Retroactive Legislation that addressed the importance of notice to the rule of law. I have published and spoken on a variety of legal and policy issues including hate crime legislation, the proper relationship of church and state, and free speech issues. A copy of my curriculum vitae is attached. The views I present here are my own, and not those of AEI, Wiley, Rein & Fielding, or any of its clients. I am not being compensated for this testimony.

There are at least four key reasons why I believe that federal hate crimes legislation or the expansion thereof is unnecessary and in fact counterproductive. First, basing the degree of punishment on the status or characteristics of the victim marks a step away from the recognition that every one of us is a child of G-d, equal in His eyes, and therefore entitled to the equal protection of the law. Second, hate crimes legislation further balkanizes American society along racial and ethnic lines, building walls instead of bridges. Third, I am generally opposed to more federal crime legislation, especially in circumstances where, as here, the data shows that the states are enforcing the law. Finally, hate crimes legislation punishes thought in a manner at odds with the First Amendment.

The way a society gives voice to the need for justice, punishment, and vengeance is through the criminal law. If our criminal laws are not tough enough to satisfy our communal need for justice, by all means let us make them tougher. But we should not give greater legal effect to the grievances of one group over those of another. Crimes should be punished regardless of a victim’s immutable characteristics.

I. Hate Crime Legislation is Inconsistent with the Egalitarian Progression Against Status Based Crimes

Both our Judeo-Christian heritage and the Anglo-American law have rejected the idea that punishment should vary based on the status of the victim. Instead, we have come to recognize that, because we are all equal in the eyes of G-d and in the eyes of the law, punishment should not depend on a victim’s immutable characteristics.

Let’s begin with the Bible. Many believe that the injunction in Exodus that with regard to punishment, there shall be "life for life, an eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise" is a harsh statement of strict, retrib utive justice.1 This is a misconception based on a misunderstanding of history and historical context. In fact, the Bible was making a strong statement in favor of equal and proportional punishment.

To illustrate, under the Code of Hammurabi (circa 1728-1686 B.C.), punishment was dependent on two factors. The first, still with us today, was the nature of the offense. But punishment also varied with status of the victim. For example, the Code stated that "If a seignior has destroyed the eye of a member of the aristocracy, they shall destroy his eye." But, "[i]f he has destroyed the eye of a commoner or broken the bone of a commoner, he shall pay one mina of silver." Other portions of the Code similarly provided that:

If a seignior has struck the cheek of a seignior who is superior to him, he shall be beaten sixty (times) with an oxtail whip in the assembly.

If a member of the aristocracy has struck the cheek of a(nother) member of the aristocracy who is of the same rank as himself, he shall pay one mina of silver.

If a commoner has struck the cheek of a(nother) commoner, he shall pay one mina of silver.2

By varying punishment as it did based on the victim’s status, the Code of Hammurabi reinforced a rigid caste system.

The Bible essentially discarded this status-based approach to imposing punishment, treating the victim’s status as irrelevant.3 It substituted the equal and proportionate mandate of "an eye for an eye" without regard to the victim’s status or characteristics. This change represented an important egalitarian advance.

A similar development took place in the history of Anglo-American law. English law initially focused on group behavior. A murder was regarded as an affront to the clan, not to the individual murdered. Recompense took place among groups. As Theodore Plucknett writes in A Concise History of the Common Law, the pre-Christian law was grounded in familial relationships. Individualism in the law "contrasted strongly with the custom of the English tribes which looked less to the individual than to the family group of which the individual formed a part."4 Because of this emphasis, early English law "had little place for an individualistic sense of morals, for the group, although it was subjected to legal liability, can hardly be credited with moral intention in the sense that an individual can."5

Gradually, English law began to assume the individualistic outlook that Christianity had inherited from Judaism. Ultimately, "responsibility for actions...shifted from the whole group to the particular individual who did the act."6 Similarly, punishment came to be assessed without regard to the status of the victim within the group. Accompanying this change – more gradually – was the growing acceptance of the notion that "all men are created equal," eventually embodied in the Declaration of Independence.

Crime and Punishment in America

In many ways the story of America’s last few centuries has been a struggle to realize in practice the promise of equality in the Declaration of Independence. Just as the Bible had promised equal treatment for all, so too did the American colonies before and after the Revolutionary War. And colonial America did realize that vision for many. Unfortunately, like the Bible, colonial America fell significantly short of its stated aspiration in failing to accord equal protections of the law to all, particularly with regard to free blacks and slaves. (Arguably, colonial America fell farther short of its stated aspirations in its treatment of slaves than did the Bible, but that is a debate for another day.) As Professor Lawrence Friedman makes clear in Crime and Punishment in American History, it was nearly impossible for a white slave owner to be found guilty of murdering a slave.7 A 1774 law in colonial North Carolina provided "punishment for killing a slave "willfully and maliciously’" with a year imprisonment and the requirement that the murderer pay the owner the value of the slave. In 1791, the same North Carolina legislature declared such a law "disgraceful to humanity and degrading in the highest degree to the laws and principles of a free, Christian and enlightened country" because it drew a "distinction of criminality between the murder of a white person and of one who is equally an human creature, but merely of different complexion." The legislature changed the law so "it was murder to kill a slave willfully and maliciously."8

As is well known, however, practice in Southern states did not live up to these aspirations or to the rhetoric of equality. Laws such as the one passed by North Carolina in 1791 were rarely enforced, usually leaving slave owners free to do what they wanted with their "property." Friedman chronicles how even in cases where slave owners were convicted by a jury of murdering a slave, the verdicts were nearly always overturned on appeal.9

These injustices surrounding the South’s "peculiar institution" culminated in the Civil War. Tragically, not even that bloody conflict led to equal protection of the laws for all. Especially in the decades after Reconstruction, local officials, especially in South, vigorously prosecuted crimes against whites, but often failed to prosecute crimes against blacks.

Even though the South in particular (although by no means only the South) repeatedly fell short of America’s stated ideals of equal justice for all, many Americans of good will continued trying to make good on that promise. Thus, in 1876-1877, the Reconstruction Congress enacted a series of laws that provided a novel remedy for the problem of selective prosecution. Most importantly, Congress passed 18 U.S.C. § 242, also known as the Ku Klux Klan Act. It provided that

Whoever, under color of any law,...willfully subjects any person...to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined...or imprisoned...10

This Act targeted governmental officials at all levels of government who deliberately deprived private citizens of their rights on the basis of certain characteristics like race or color.

Importantly, as James Jacobs and Kimberly Potter point out in Hate Crimes: Criminal Law & Identity Politics, "these statutes apply to everyone."11 They are thus "unlike modern-day hate crime statutes, which cover only those victims who fall within the groups listed in the hate crime statute." The KKK law was written generically to apply to any individual who could demonstrate that state officials had failed to protect them through lax enforcement of state laws -- race notwithstanding. With the mandate of the Equal Protection Clause fresh in their minds, the authors of the KKK Act recognized the paradox of simultaneously speaking the language of equal protection, and passing special protective legislation out of the other. Thus, the bold KKK Act was written in a neutral manner and for the benefit of all citizens regardless of any immutable characteristics.12

Hate crimes laws are different, however. First, they are directed at private conduct. Also, the sole basis for their invocation is when that private conduct is motivated by a specifically enumerated bias.

Sadly, neither the Civil War Amendments to the Constitution nor the Civil Rights Acts ended selective prosecution and punishment of blacks. And, with the advent of Jim Crow, America’s ability to make good on its promise of equality to all became further compromised. It is important to emphasize, however, that even as America was falling short on the promise and reality of equality for African-Americans, millions of immigrants of all ethnicities and religions were pursuing and finding the American dream not just of material prosperity, but also of equal treatment under the law.

The Promise of the Civil Rights Movement

In the years following World War II, several courageous lawyers began to mount an offensive on the structure of Jim Crow. Importantly, they did not seek special protections for blacks. Rather, they sought the same equality of treatment that American law and American society was increasingly granting to all.

To illustrate, according to his biographer Juan Williams, Thurgood Marshall -- the leader of the Civil Rights movement through the 1940s and 50s – sought "a color-blind, fully integrated America."13 Marshall wanted every American to be judged, as he said, on "individual merit rather than to be limited by such irrelevant considerations as race and color."14 He regularly campaigned for racial solidarity commenting, "let’s stop drawing the line [between] colored and white. Let’s draw the line on who wants democracy for all Americans."15 In fact, Marshall once remarked, "I want to put myself out of business. I want to get things to a point where there won’t be an NAACP—just a National Association for the Advancement of People."16

Particularly since the 1950s, America has made great strides in realizing the promise of equality under the law for all Americans. At the same time, and in a not unrelated phenomenon, America has witnessed a sharp decline in racism, anti-Semitism, and the like. To take just one example, comments like those of former Dodger executive Al Campanis about blacks in baseball, which were once commonplace, are now properly the impetus for firing and obloquy. These examples can be multiplied many times over. We have not yet eradicated the scourge of racism and prejudice. But we have generally been moving in the right direction.

II. The Balkanizing Effect of Hate Crimes

Along with the eminent, liberal historian Arthur Schlesinger, Jr., I believe that among the most serious threats to the promise of equal protection facing the United States today is an over-emphasis on the racial, gender, religious, and other differences between us rather than on our common concerns. I am particularly worried by attempts to write these differences into law, which cuts against not just Thurgood Marshall’s vision, but also against the tide of Judeo-Christian and Anglo-American law, which I discussed above. In his book The Disuniting of America, Schlesinger, points out this on-going process of balkanization.17 And like Schlesinger, I reject the views of the "militants of ethnicity, [who] now contend that the main objective of public education should be the protection, strengthening, celebration, and perpetuation of ethnic origins and identities."18 Because such separatism, when recognized by law, "nourishes prejudices, magnifies differences, and stirs antagonisms," to quote Schlesinger again."19

To be sure, as Schlesinger notes, recognizing once over-looked cultures has its positive effects. Our society benefits from exposure to new types of music, art, and literature, and we must ensure that all individuals in our nation of immigrants participate in our civic society.20 But writing these differences into law reinforces differences between individuals on the basis of certain immutable characteristics, and makes it impossible for us to coalesce as a single entity.21

Unfortunately, in modern-day America, it often seems that the fastest way for a group to achieve political power and status is to proclaim its status as a victim.22 Status as a disfavored group paves the way for special protections and special handouts. Thus, hate crimes legislation makes crimes into political footballs, further polarizing America on the basis of group and identity politics. Specifically, hate crimes legislation incentivizes special interest groups to put political pressure on local prosecutors to declare that a crime visited on a member of their particular group was a "hate crime." Why? To ensure the defendant will be punished? Especially with regard to serious crimes, this will happen anyway. For what other purpose then? The most likely reason, I’m sorry to say, is so that a relevant identity group can use the "hate crime" as further evidence of its disfavored treatment so that it can then claim the need for special laws, special handouts, and special treatment.

This is not to say that everyone who calls for the tough prosecution of a hate crime is engaging in such demagoguery. But we should be horrified by all crimes, without regard to the victim’s group, and we should demand justice in all cases. As a Jew, I may feel particularly aggrieved when another Jew is harmed, but that is no reason for my particular grievance to be written into law.

This is because we all belong to one group or another. When a military person is harmed, perhaps because they were a member of the military, all of the people in the military – or at least on the victim’s base – are likely to feel particularly affected by the crime. The way a society gives voice to that feeling of being aggrieved and to the need for justice, punishment, and vengeance is through the criminal law. If our criminal laws are not tough enough to satisfy our communal need for justice, by all means let us make them tougher. But we should not give greater legal effect to the grievances of one group over those of another.

Indeed, by further forcing society into groups based on permanent status—racial, gender, religious, etc.—hate crime laws ultimately erode the core unifying values of our country. Instead of developing a civil society in which groups form and disband to advocate ever-changing interests, this sort of legislation encourages the maintenance of permanent groups along lines that should, ultimately, be irrelevant under the law.23 By emphasizing the static nature of groups and status-based affiliations, hate crimes legislation entrenches pluribus and makes unum an unattainable phrase, bland enough only for printing on currency.

Politicizing law enforcement

In Hate Crimes: Criminal Law & Identity Politics, James B. Jacobs and Kimberly Potter show that one of the most difficult aspects of implementing hate crimes legislation is the all-important "labeling decision."24 Although this decision may seem simple, in fact it is fraught with political implications and pitfalls. Jacobs and Potter conclude that "[w]hatever one’s position on the effects of politicization, it is clear that the bias-labeling process contributes to those effects."25 Yet, the problem of politicization is obvious. It can force prosecutors to make decisions about what charges to bring based not on the available evidence and what can be proven in court, but instead on how loud a certain group can yell.

To illustrate the difficulty of classification, consider the criteria used by the New York Police Department Bias Unit to identity bias-motivated crimes. The list includes such criteria as "The absence of any motive," "The Perception of the Victim," and "A common-sense review of the circumstances."26 As Jacobs and Potter note, "[t]hese criteria are so broad and loose that practically any intergroup offense could plausibly be labeled a bias crime," and "the criteria, rather than answering questions, create more questions."27 In fact, the problems that the Bias Unit faced labeling crimes led to the creation of a Bias Review Panel, essentially designed to prevent crimes originally classified as being bias motivated from being reclassified.28 The authors point out that "[c]ommunity pressures and controversies made a bias review panel a political necessity" (emphasis added).29 Clearly, this sort of attention, pressure, and lobbying on law enforcement detracts from what should be the objective process of law enforcement and prosecution.

Forcing a prosecutor first to determine whether to file charges under the hate crimes law, and to focus secondarily on building his or her case, exacerbates community tensions already on edge from the initial crime. The net increase in community divisions and mistrust can easily diminish faith in the criminal justice system. As Jacobs and Potter show in an examination of some of the most notable and divisive intergroup incidents -- the 1989 rape and beating of a jogger in Central Park, Colin Ferguson’s shooting rampage on the Long Island Railroad, the trial of Lemerick Nelson for the murder of a rabbinical student during the 1990 Crown Heights riots—in each case attention was drawn away from the horrible fact that people were killed, beaten, or raped. Instead, various identity groups—and these are groups of all stripes—dominated discourse with criticism or praise about how to classify the underlying crime.30 These conflicts, political in nature, have important consequences. They breed inter-group hatred, more conflict, and even more crime. Jacobs and Potter even remind readers that the preoccupation with whether this or that crime was bias-motivated, even leads to retaliatory inter-group crime.31

Also, perversely, classifying a crime as a "hate crime" may give a criminal more of a "justification" in his or her own mind, or in the minds of others. Violent crimes should be viewed for what they are: lawless and venal actions against all of civilized society. To illustrate, Timothy McVeigh’s slaughter of innocents in Oklahoma City should be seen for what it was: mass murder, pure and simple. Calling it a "hate crime" directed against federal employees adds nothing to the analysis.

The evidence collected by Jacobs and Potter shows that hate crime legislation further balkanizes America and is contrary to the best ideals of the American system. It is true that, as I have discussed, America has not always attained these ideals. But we should not abandon the road Thurgood Marshall and others set us on to go back in the direction of differential treatment under the law.

III. Hate Crime Legislation Is Inconsistent with Federalism Principles

It is important, at the outset, to emphasize the lack of evidence of any hate crime "epidemic" warranting federal intervention.32 To illustrate, Jacobs and Potter report, based on FBI statistics, that from 1992 to 1994, bias motivated attacks against blacks, whites, Jews, gays and ethnic groups, and ethnic groups generally all declined.33 Underscoring the decrease in the total number of bias motivated incidents—from 6,623 in 1992 to 5,852 in 1994 -- was a corresponding decrease in types of hate crime.34

Moreover, state and local governments have quite obviously deployed a great many of their resources to combat "hate crimes" in the context of attacking all crime. There is little if any evidence that states are not prosecuting all of the crimes that the proponents of such laws want to see prosecuted. And there is no evidence that serious crimes are being ignored.

By every account, just the opposite is taking place. Consider the multi-jurisdiction response to the recent shootings of Jews, African-Americans, and Asians in and around Chicago in early July. Or consider also the rapid and appropriate response of state and local authorities to the horrifying crimes perpetrated against Matthew Shepard in Wyoming and James Byrd in Jasper, Texas. The outcome of the trials in both of these cases is also instructive. One defendant in the James Byrd Jr. trial was sentenced to death, while two other suspects are awaiting trial.

The state and local responses to serious crimes such as the Byrd and Shepard murders highlight an important weakness in the arguments of those favoring hate crimes legislation. In their rhetoric, they point to murders like those of Byrd or Shepard as evidence of continuing discrimination and hatred. But when it is shown that such crimes are indeed investigated and successfully prosecuted, they maintain that hate crimes legislation is really needed for those category of minor crimes – such as vandalism and minor assaults – which states are not prosecuting because they lack the will or resources.

They can’t have it both ways. If the debate about hate crimes legislation is about serious crimes, let the supporters of these laws come forward with evidence that serious crimes are not being investigated or prosecuted. So far as I know, there is no such evidence. In that case, let us recognize this debate for what it is really about – the attempt to make a federal case, literally, out of a range of relatively more minor crimes. In fact, after surveying the FBI’s reports on hate crimes, Jacobs and Potter concluded that "most reported hate crimes were low-level offenses, not brutal or murderous attacks."35

There is a misperception among some that states are universally hate crime friendly places. This is not the case. The same political pressures which bear on Congress can be even more intense when focused on local and state prosecutors as they are urged to "throw the book" at perpetrators of such crimes.

Consider the nature of a "hate" crime. It is local. It hurts a community. It rarely affects the interests of other states directly. It is true that crimes seemingly directed at a particular group may leave many other members of that group feeling less secure. But the key point is that everyone in America has the right to be free from fear. If the states don’t have enough money to adequately enforce the laws, then let that issue be confronted directly, perhaps in the form of block grants – without strings attached directing that one group or another be subjected to favored treatment. But we need not federalize an act which is already illegal.

Thus, an additional reason why federal hate crime legislation is unwise – is, because it continues the misguided trend of federalizing crimes that can and should be prosecuted at the local level. As was documented in last year’s report by the Task Force on the Federalization of Criminal Law, chaired by former Attorney General Edwin Meese, more than 10,000 federal crimes are contained within the U.S. Code (an exact count is impossible).36 These sanctions – many of which are criminal, some of which are civil – are often duplicative and imprecise. And they seem to be growing. Indeed, as the ABA Task Force states, more than 40% of the federal criminal provisions enacted since the Civil War have been enacted since 1970.37

As the preface to that report notes, this "federalization phenomenon is inconsistent with the traditional notion that prevention of crime and law enforcement in this country are basically state functions."38 The Constitution assigned the federal government the power and responsibility to act where there was a need for unified action. And indeed, for much of the nation’s history, criminal law and punishment was regarded as one of those spheres of governance better handled at the state level rather than at the federal.

Yet, particularly in recent years, both Democrats and Republicans have elevated political expediency over principle and have adopted a veritable deluge of federal crimes. To quote the ABA Federalism Report, lacking "any underlying principle," Congress duplicated crimes already punishable at the state level with new federal laws.39 Unfortunately, Congress did not limit itself to only those crimes that state and local governments lacked the resources to combat. Rather, "[n]ew crimes are often enacted in a patchwork response to newsworthy events, rather than as part of a comprehensive code developed in response to an identifiable federal need."40

As the ABA Task Force pointed out, these laws unnecessarily concentrate police power at the federal level. They blur lines of accountability. They diminish the prestige of the state courts, and promote disrespect and disregard for the state criminal justice system. Perhaps worst of all, they allow disparate results for identical conduct. Rules of evidence, procedural protections, and punishments are likely to vary between states and the federal government. And in some instances, the states will deal more harshly with criminals, in some other cases it will be the federal government.41

Harm to the federal administration of justice

Federalizing crimes doesn’t only run counter to the principle that states and local governments should be trusted as a general matter to enforce criminal laws. Federal criminal laws also harm the federal system. Among other things, these laws often spring onto the scene as a result of some particularly egregious account reported in the media after having lain dormant for years. They then overwhelm federal prosecutors, judges, and jails.

In his 1997 annual report, Chief Justice William Rehnquist criticized Congress for bringing ever more crimes within the federal government’s jurisdiction. After noting that there were more than 50,000 federal criminal cases in 1997, he stated that adding more federal crimes to the books would "exacerbate the problem revealed by these numbers because adult criminal proceedings are far more time-consuming" than many other types of cases.42 Yet, as the ABA Federalism Report noted, federalization of crime is unlikely to have a "meaningful impact on street safety and local crime."43 It is similarly unlikely to deter those who are already committed to break a state law by committing a violent act on a member of a minority group.

As the preface to the ABA Federalism Report concluded, "it is precisely because federal law enforcement is so necessary in dealing with indisputable federal interests that a legislative instruction to federal prosecutors to utilize their time and resources to prosecute relabeled common law crimes ought to be restrained."44 Once again, federal hate crimes legislation points in the wrong direction.

IV. Hate Crime Legislation Is In Tension With First Amendment Principles

Hate crime legislation punishes people for the content of their ideas. Of course, these ideas are noxious and repulsive to the vast majority of the population -- and well they should be. However, the level of disgust harbored by the masses for an idea has never been legitimate criteria for allocating punishment. As Justice Robert Jackson said in his 1943 Barnette decision: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."45 Justice Jackson’s eloquent words apply equally to protect flag burners, Jehovah’s Witnesses, and even racists.

In R.A.V. v. St. Paul, the Supreme Court reaffirmed that content-based speech restrictions are presumptively invalid and wrong, even when applied to hate speech.46 R.A.V. struck down a hate-speech law, even though, in the case at issue, a black family had been harassed with a burning cross on their front lawn. Notwithstanding the terrible wrong done to the family, the Supreme Court recognized that punishing the perpetrators based on their racist beliefs – as opposed to punishing them for their actions -- was wrong. In so declaring, the Supreme Court reaffirmed a principle championed by Justice Oliver Wendell Holmes, Jr. in his remark that, "[i]f there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought we hate."47 The R.A.V. Court also noted that the act – burning a cross –was already unlawful under generally applicable laws.48

RAV v. St. Paul is thus consistent with the centuries-old ideal in the United States that individuals are free to believe what they wish without fear of prosecution. In America, although we certainly hope that individuals will choose wisely in deciding what to believe, we do not punish them when they choose "incorrectly" – even if they choose to become racists.

Of course, hate crimes legislation applies only where an individual acts on those beliefs. But to be consistent with First Amendment values, the criminal law should focus on effects more than on motivation. To illustrate, it is not at all clear that killing me for my money is worse than killing me because I am Jewish. Certainly my family is equally aggrieved – my children left fatherless, my wife a widow. Punishing the criminal more harshly in the latter case inevitably sends the message that it’s somehow less wrong to kill for money. More to the point, punishing the criminal more harshly in the latter case punishes him for his beliefs, when he should be punished (equally, and harshly) for his actions.

It is true that the Supreme Court has not always seen the matter precisely this way. A few years after R.A.V., the Court affirmed Wisconsin’s enhancement of a penalty for crimes motivated by religious, racial, or gender bias.49 This decision seems to be at odds with R.A.V.50 It is hard to avoid the conclusion that the additional punishment is a form of criminal sanction for the content of one’s thoughts. As Jacob and Potter queried, "If the purpose of hate crime laws is to punish more severely offenders who are motivated by prejudices, is that not equivalent to punishing hate speech or hate thought?"51

Proponents of hate crime legislation point out that the prosecution of many crimes depends on evidence of the criminal’s thoughts. This is indeed true. For many crimes, mens rea, or intent, must be established. Yet the inquiry into whether a defendant acted willfully is very different than an inquiry as to whether the criminal was motivated by bias or prejudiced. The inquiries differ in scope and in kind. One difference is in the relative ease in determining wilfullness. Evidence that a criminal was willful or intended to maim might be deduced from such activities as casing a target or selecting a particular sort of weapon. Moreover, we have centuries of experience with such a distinction.

Also, the wilfullness inquiry is based on conduct not constitutionally protected. By contrast, a successful hate crime prosecution might well rely on evidence of the books the defendant read, the political organizations to which he belongs, and even the remarks one makes. For example, an important piece of evidence in Hate crime laws ultimately force courts into making rulings like this one, because they must enter a domain for which they are ill-equipped and ill-suited -- the probing of individuals’ constitutionally protected beliefs and associations.pertained to a recent popular movie the perpetrators had recently watched.52 Courts of law should be wary of inquiring into the most intimate details of an individual’s personal beliefs, and then meting out punishment accordingly.

Another difference between the traditional probing of motive and the attempt to determine hatred in these crimes is vividly depicted in an example from Jacobs and Potter’s book. Consider the example of several white youths who beat a black youth after he reportedly had attempted to rob them. During the course of their beating the black youth – a clearly unlawful overreaction -- they hurled racial epithets at him. However, the incident was ultimately not labeled a bias-motivated crime because the racial insults were made during, as opposed to before, the crime took place.53

This inquiry typifies the sorts of arbitrary determinations that must be made under hate crimes laws: what did you say and when did you say it, what did you think and when did you think it? Such inquiries are avoided in traditional criminal trials because they are irrelevant. More importantly, there are already fixed rules governing the use of such information. Hate crime laws ultimately force courts into making rulings like this one, because they must enter a domain for which they are ill-equipped and ill-suited -- the probing of individuals’ constitutionally protected beliefs and associations.

* * *

Federal hate crimes legislation enables Congress to claim that it is "doing something" about hate crimes. People may have two different responses. Some may actually believe this. When it turns out not to be true – few criminals are likely to be deterred by an additional federal penalty for a crime that is already unlawful – they will become more cynical. Others will recognize immediately that Congress is posturing, and in the process become even more cynical. Heightened cynicism is the outcome in either event. Yet, at the same time, such legislation invites political warfare along racial, ethnic, religious, and other lines, with each group claiming to be more victimized than the other.

Thus, in my view, we have little to gain and much to lose from this sort of legislation. Federal hate crimes legislation takes us back in the wrong direction, and hurts our national effort at cohesiveness and unity.

I respectfully urge this Committee and the House to vote against any further expansion of federal hate crimes legislation.


[1] Exodus 21:22.

[2] The Code of Hammurabi § 202, 203, 204, cited in Elliot Dorff and Arthur Rosett, A Living Tree: The Roots of Growth of Jewish Law 44-45 (1988).

[3] The sole exception was with regard to slaves (who could be Hebrews or foreigners) and whose treatment was regulated according to a strict code. See, e.g., Exodus 21:26 ("When a man strikes the eye of his slave, male or female, and destroys it, he shall let him go free on account of his eye. If he knocks out the tooth of his slave, male or female, he shall let him go free on account of his tooth.").

[4] Theodore Plucknett, A Concise History of the Common Law (1956).

[5] Id.

[6] Id.

[7] Lawrence M. Friedman, Crime and Punishment in American History 90-91 (1993).

[8] Id.

[9] Id. at 92.

[10] James B. Jacobs and Kimberly Potter, Hate Crimes & Identity Politics 37 (1988), citing § 18 U.S.C. 242.

[11] Id., at 37.

[12] Id. at 36.

[13] Juan Williams, Thurgood Marshall: American Revolutionary 232 (1998).

[14] Id.

[15] Id. at 241.

[16] Id. at 231-32.

[17] Arthur M. Schlesinger, Jr., The Disuniting of America: Reflections on a Multicultural Society (1992).

[18] Id. at 17

[19] Id. at 16.

[20] Id.

[21] Id. at 101-18.

[22] Robert H. Bork, Slouching Towards Gomorrah: Modern Liberalism and American Decline 82 (1996).

[23] See James Madison, The Federalist No. 10 (arguing that a system in which factions would regularly form and disband prevents their more dangerous tendencies from gaining hold).

[24] Jacobs and Potter, at 96.

[25] Id.

[26] Id., at 97-98.

[27] Id. at 98.

[28] Id. at 99.

[29] Id.

[30] Jacobs and Potter, at 137-42.

[31] Id. at 142-44.

[32] Jacobs and Potter, at 55-59.

[33] Id.

[34] Id.

[35] Jacobs and Potter, at 58-59.

[36] Report of the Task Force on the Federalization of Crime (1998) [herinafter ABA Federalism Report].

[37] Id. at 7.

[38] Id. at 2.

[39] Id. at 14.

[40] Id.

[41] Id.

[42] Rehnquist report

[43] ABA Federalism Report, at 22.

[44] Id. at 3-4.

[45] West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943).

[46] R.A.V. v. St. Paul, 505 U.S. 377 (1992)

[47] U.S. v. Schwimmer, 279 U.S. 644, 654-55 (1929)(Holmes, J. dissenting), overruled, Girouard v. U.S., 328 U.S. 61 (1946).

[48] R.A.V., 505 U.S. 379 fn. 1. (noting that "[t]he conduct might have violated Minnesota statutes carrying significant penalties").

[49] Wisconsin v. Mitchell, 508 U.S. 476 (1993)

[50] Jacobs and Potter, at 126-27 (criticizing the Mitchell Court’s attempt to explain its decision in light of R.A.V. by invoking the speech-conduct distinction).

[51] Id. at 121.

[52] Mitchell, 508 U.S. 480.

[53] Jacobs and Potter, at 138.

Daniel E. Troy is an associate scholar at AEI.

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Wednesday, September 03, 2014 | 9:00 a.m. – 10:30 a.m.
From anarchy to Augustus: Lessons on dealing with disorder, from Rome’s first emperor

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Multiple choice: Expanding opportunity through innovation in K–12 education

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How conservatives can save the safety net

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