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The Clinton administration has seized on the horrible murder of Matthew Shepard, a gay University of Wyoming student, to justify expanding the scope of existing hate crimes legislation. Specifically, the administration proposes to extend the Hate Crimes Sentencing Enhancement Act of 1994 to cover crimes motivated by prejudice based on disability, sex and sexual orientation. Politicians find it hard to resist such measures: After all, who isn’t against hate crimes?
Yet despite the political attractiveness of these measures, the legislation should be rejected for several reasons. First, it reflects an unwarranted distrust of state justice systems. Second, it criminalizes thought rather than conduct. And most important of all, it varies punishment according to the victim’s characteristics, thus contravening our society’s longstanding and cherished view that every person is equal under the law.
Since the mid-1980s, advocacy groups have claimed that hate crimes are on the increase. In their excellent new book Hate Crimes: Criminal Law and Identity Politics, James Jacobs and Kimberly Potter prove them wrong. They assess the evidence of the supposed rise in hate crimes and conclude that, “in contemporary America, there is less prejudice-motivated violence against minority groups than in many earlier periods of American history.” The statistics bear this out. The FBI reported 15 bias-related murders nationwide in 1992, and 13 in 1994–hardly a worsening “epidemic.”
Even one such crime is unacceptable, but federal intervention is not needed. Wyoming law enforcement officials have reacted swiftly to Mr. Shepard’s murder; suspects are already in custody. This kind of reaction is representative of state law enforcement agencies. America at the turn of millennium is not the old South, where laws were not always enforced to protect minorities. There is no evidence that states fail to prosecute crimes against minorities. Nor is there evidence that juries are letting off criminals who attack minorities. Federal recriminalization of state laws gives rise to turf battles and unnecessary posturing, and are a distraction from the primary goal of swift and severe justice.
Hate crimes legislation also contravenes important American values by creating the category of “thought crimes.” Essentially, such laws punish people because of their point of view, however offensive. Many criminal prosecutions require an inquiry into a defendant’s intent, but assessing whether someone intended the consequences of his actions differs markedly from assessing his opinions about his victim. And distinguishing between opinions and prejudice is often difficult.
Although the current Supreme Court has unanimously upheld a hate crime law, an earlier justice had a different view of First Amendment principles. Justice Oliver Wendell Holmes once said, “If 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.”
Moreover, although hate crime laws are styled as measures that criminalize a particular motivation, their real purpose is to punish more severely crimes against those possessing a particular status–namely, in the case of the proposed amendment, women, gays, and disabled people. By varying a criminal’s punishment based on the victim’s status, these laws conflict with both the Judeo-Christian and common-law traditions.
Under ancient laws such as the Code of Hammurabi (1728-1686 B.C.), punishment depended on who the victim was. A member of the landed gentry who broke the bone of his equal would have his own bone broken, but breaking the bone of a commoner required payment of only one mina of silver. Similarly, if a member of the landed gentry struck the daughter of a member of his class, causing a miscarriage, he was obliged to pay 10 shekels; a similar blow having the same effect on a commoner’s daughter would cost him only five shekels.
The Old Testament rejected the model of punishment that depended on the victim’s identity, substituting the equal and proportional mandate of “an eye for an eye, a tooth for a tooth.” As a general rule, the Bible did not recognize class distinctions in punishment.
The common law followed a similar path. Early in English history, punishments varied by status. The focus of the law was on family groups rather than individuals. As English law developed, it took on the individualistic and egalitarian outlook that Christianity inherited from Judaism. The common law thus came to prohibit and punish all crimes, without regard to the victim’s status.
The U.S. Constitution did not secure equal protection of the laws for all Americans; it took the Civil War for that principle to be enshrined in our basic law. A key purpose of the 14th Amendment was to give blacks the same legal protection as whites.
America’s history of disparate treatment of certain groups did not end with the 14th Amendment’s enactment in 1868. The federal civil rights laws, such as the Ku Klux Klan Act of 1871, were needed. But the KKK Act was not intended to punish crimes based on race more harshly than other crimes. The purpose of such laws was to create a federal remedy when states failed to enforce the law on a neutral basis. This law is on the books today and has been used in the rare instances where states fail to apply the law neutrally, as in the case of Rodney King’s police attackers.
Moreover, the promise of the civil rights movement was of an America in which everyone would be treated equally. The notion of a special category of crime in which the punishment varies based on characteristics of the victim turns the vision of equal protection of the laws on its head. It suggests that one person’s life is worth more than that of another.
More fundamentally, hate crimes legislation encourages groups to vie for protected status by emphasizing the degree of their victimization. In doing so, hate crime laws promote balkanization and resentment. Bill Dobbs, spokesman for the gay group QueerWatch, opposes hate crimes legislation giving gays special protection because it encourages people to “point fingers” resentfully at gay people and say “`you’re not better than us.'”
Hate cannot be legislated away; the real struggle is to change attitudes. Crime affects the life of every American. We should all join together to combat it, not convert the fight against crime into another arena for group conflict.
Mr. Troy is a Washington lawyer and an associate scholar at the American Enterprise Institute.
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