pageok
pageok
pageok
The Hate Crimes Temptation:

The push is on in Congress to pass a new and dramatically expanded federal hate crimes law. The current main federal law (18 U.S.C. 245) was passed in 1968 during the civil rights struggle. It covers only race, ethnicity, national origin, and religion, provides assistance to local authorities to deal with such crimes, and allows federal prosecution only where the victim is engaged in a federally protected activity (like a civil-rights demonstration). A separate federal law, the Hate Crimes Statistics Act of 1990, provides for federal gathering and reporting of evidence of the incidence of hate crimes, including anti-gay crimes. The FBI reports the incidence of these crimes, and its website has useful data on hate crimes in every state going back to the 1990s.

The proposed hate-crimes law (H.R. 2662) would drop the requirement that the victim be engaged in a federal activity, thus greatly expanding the scope of federal prosecution. It would provide federal investigation and prosecution of crimes motivated by bias against a person's sexual orientation, gender, gender identity, and disability, thus adding to the categories covered. And it would give money and other resources to state and local authorities to investigate and prosecute these crimes.

A new column in the Advocate published under the names of Human Rights Campaign Executive Director Joe Solmonese and Judy Shepard, mother of Matthew Shepard, who was slain in a notorious and vicious crime in Wyoming in 1998, argues in favor of passage of the new law. They argue:

Fear of violence remains a horrible reality for millions of GLBT Americans—even in places that many consider "tolerant" or "progressive." Every act of violence is tragic and harmful in its consequences, but not all crime is based on hate. A bias-motivated crime affects not only the victim and his or her family but an entire community or category of people and their families.

Nothing much to disagree with there. Having myself been a victim of such an attack 17 years ago, I know that anti-gay violence tends to be especially vicious. Knowledge of its existence places a whole group of people under fear of attack, which has all kinds of effects on how one leads one's life.

But what exactly will an expanded federal hate crimes law do to deal with this problem? Here's the answer Solmonese and Shepard give:

You may ask, isn't the bill merely symbolic? It won't stop future attacks or bring back those we've lost. Well, it is true that there is some symbolic value to the law. We honor all past victims by creating a federal law to combat hate crimes. But make no mistake about it: this law offers a real solution to combating anti-LGBT violence. It does so by accomplishing two very important goals.

First, the federal government gains the authority to prosecute anti-LGBT hate crimes. No matter how awful the crime, nor how compelling the evidence, the federal government simply cannot act without this law.

Second, this legislation will put crucial federal resources at the disposal of state and local agencies and equip local law enforcement officers with the tools they need to seek justice. There have been numerous hate-crimes cases where local jurisdictions simply lacked the full resources to prosecute the guilty. As an example, when Matthew (Judy's son) was murdered in Laramie, Wyo., in 1998, the town had to scramble financially to handle the investigation, prosecution, and security required. The case ended up costing this small locality of roughly 28,000 people about $150,000, and the county sheriff's department was ultimately forced to furlough five deputies to save money. The police department also incurred about $25,000 in overtime costs. Federal assistance would have been a huge help.

I have long been skeptical about the practical value of a federal hate crimes law. Nothing in the Shepard/Solmonese argument allays that skepticism. Consider:

(1) There's no evidence I'm aware of that hate-crimes laws actually deter hate crimes beyond what the law already deters. (If readers are aware of any such evidence, I'd love to see it.) All but seven states already have special laws dealing with hate crimes, and 24 of the states include anti-gay violence. We now have almost 40 years of experience with these laws. Yet Shepard/Solmonese provide no evidence such laws have been effective. Indeed, a careful reading of the column shows that they do not even claim an enhanced deterrent effect. They claim only that passage of a federal bill will improve by some degree the likelihood of punishing offenders for attacks that have already occurred, not that it will deter future violence.

Hate crimes are especially vicious and irrational crimes, welling up from deep hatreds, resentments, and fears that law can hardly touch. They're often committed by young males in their teens and early 20s who can't be expected to know the nuances in criminal law and whose animalistic behavior in this respect is probably not very responsive to nice legal incentives. I doubt the prospect of federal as opposed to state prosecution or of some additional time in prison beyond what the offender would get anyway will deter bias attacks.

(2) Aside from punishing offenders — which does and should happen anyway under existing law and which could be enhanced without creating special categories of protection — the purpose of a hate crimes law seems entirely symbolic. While I'm not unmoved by the symbolic value of law, I'm opposed in principle to criminal laws of purely symbolic value. Opposition to purely symbolic criminal laws was a good reason, for example, to oppose sodomy laws, which were a largely symbolic (and very partial) reinforcement of traditional sexual morality.

(3) The column argues that in some cases local jurisdictions lack the resources to prosecute hate crimes, citing the Matthew Shepard case as an example of the high expense involved. Lack of resources is a common complaint of law enforcement authorities at every level — from prevention to investigation to prosecution. But there is no evidence that this claimed lack of resources is a problem unique to hate crimes, or to crimes against gays. Perhaps there should be a general federal local law enforcement assistance act, but why give special assistance to one class of crimes that seem no more costly to law enforcement than another?

(4) The proposed federal law seems an unwarranted intrusion on federalism. The investigation and prosecution of violent crime, with a few exceptions involving things like federal officers and federally controlled substances, has traditionally been the job of the states. The column notes that the federal government will now be able to prosecute more hate crimes. Yet there is no evidence presented that local and state authorities are not already prosecuting such crimes under existing laws, whether under standard laws against violent crime or under their own hate crimes statutes. There's anecdotal evidence that some law enforcement authorities in a few jurisdictions have occasionally been lackadaisical or unconcerned about anti-gay crimes, but where is the evidence of widespread, systematic underenforcement to justify a federal law covering every jurisdiction in all 50 states? We should ask for some such evidence before the federal government takes over yet another area of traditional state authority.

(5) The proposed bill includes federal punishment for crimes based on "disability." Such crimes are of course horrible and it will be difficult politically to resist inclusion of this category. But what is the evidence that this is a pervasive phenomenon in violent or other crime? In the absence of such evidence, it seems like just a PC add-on, intended more for political than practical effect. The authors say "everyone" will now be protected. But why not cover "Vietnam-era status", age, pregnancy, and so on?

(6) While the column claims that nobody has ever been prosecuted for a mere "thought crime," that is an evasion of the danger these laws may present and of the objections that have been lodged against them. Of course, mere thought is not criminalized. One must commit an underlying crime before a hate-crimes law comes into play. But the potential problem is that evidence of what one thinks about a group may be introduced to prove a hate crime eligible for federal prosecution even if, in fact, it didn't motivate the crime. I'm not personally very discomforted by this prospect since inquiry into motive is common in the law. I'm also not aware of much real danger to the First Amendment in the 40 years of hate-crimes prosecution so far. But the column avoids the issue rather than confronting it.

(7) The proposed law is of dubious constitutionality under United States v. Morrison, which struck down the Violence Against Women Act as beyond Congress's authority under the Commerce Clause and under Section 5 of the 14th Amendment. VAWA had provided a special federal civil remedy for victims of gender-motivated violence. The Court struck it down, citing inter alia the lack of a jurisdictional hook to federal interests and the intrusion it represented on the traditional role of the states in dealing with crime. Providing federal criminal prosecution of hate crimes and stripping the requirement included in the 1968 law that the victim be engaged in a federally protected activity, as the new proposed bill does, raises substantial questions about whether it exceeds Congress's constitutional power. The crimes do not seem "economic" in the sense the Court has used the term in its Commerce Clause decisions, and neither "sexual orientation" nor "gender identity" nor "disability" (added categories in the new bill) have garnered special protection from the Court under its Fourteenth Amendment jurisprudence, justifying a larger federal role under Section 5. It's true the Court has recently retreated from some of the implications of its decisions limiting federal power under the Commerce Clause, but upholding the proposed hate crimes law would be an even more dramatic retreat and would seem at the very least to involve overruling Morrison.

No doubt national gay-rights groups are looking for some kind of win early in the new Congress to show long-suffering donors they can be effective. Winning on hate crimes may also reassure members of Congress that they can vote for a pro-gay bill without serious repercussion. Other important issues — like a federal employment protection bill and repeal of "Don't Ask, Don't Tell" — are on the horizon. An "anti-crime" measure is the easiest first step to take and may actually get President Bush's signature, leading to more progress later.

But I am concerned that passing this seemingly symbolic bill may instead give the new Congress a "pass" — freeing it to avoid the harder and far more consequential questions of employment, military service, and protecting gay families in the law. These are all issues about which Congress really can do something of practical value.

UPDATE: In a comment to this post, Marty Lederman helpfully points out that an earlier proposed hate crimes law contained a jurisdictional hook requiring that the crime be linked to interstate commerce. For that reason, and based on a creative 13th Amendment argument, the OLC during President Clinton's tenure advised Congress the new law would be constitutional even after Morrison.

The new version of the bill also contains a type of jurisdictional hook in subsection (a)(2)(B), requiring that the offense affect interstate commerce in some way, or be connected in some way to travel in interstate commerce, or occur while the victim is engaged in economic activity. The full text of the bill is here.

The inclusion of this hook does indeed improve the chances that the bill will be held constitutional. It does not, however, end the constitutional objections. None of the Court's decisions in the Commerce Clause area since 1995 have definitively addressed whether the inclusion of such a hook would render an otherwise unconstitutional law constitutional. It has always struck me as odd to think that a Court concerned with preserving a historic balance between federal and state power, and with limiting federal commerce authority largely to the regulation of "economic" matters, would be won over by a requirement that, say, the weapon used in the offense moved at some point across state lines. Indeed, the congressional findings of a connection to intertstate commerce recited in the bill, e.g., impeding interstate travel and commerce by victims, are very similar to those found inadequate in Morrison. But the constitutional question will be more interesting than I initially thought.

DG:
More hate crimes laws (at a time when acceptance of homosexuals is at an all time high and is improving) seems a misplaced priority. We're at war - what better time to get rid of don't ask, don't tell? It was always a crappy compromise and never made any sense - it didn't protect gay soldiers, but did serve as an escape clause for military folks of all orientations looking to skip out on obligated service. Air Force just paid for Med School and you owe 5 years? Oops, he's gay. Trained someone as an aircraft engineer? gay. Don't feel like going to a war zone? gay. Don't ask was the most abused regulation ever seen in the military, and many folks will be happy to see the tail end of it.
3.7.2007 10:17pm
MnZ (mail):
Harsher punishments don't actually deter people because they do nothing to solve the root causes. Harsh punishments only serve to oppress certain socio-economic classes and further strain our criminal justice systems. Futhermore, they run the risk of turn individuals who simply made a mistake into hardened criminals.

(I don't necessarily endorse these sentiments. However, it is interesting that you never see them expressed in this specific context.)
3.7.2007 10:29pm
Cornellian (mail):
I'm a skeptic about the concept of hate crime legislation myself, though I don't disagree with the general principle that a sentence may vary depending upon the nature of the victim, e.g. you should get one sentence for assaulting a 25 year old man, and another sentence for assaulting a 5 year old child, other things being equal. I think legislative effort would be more productively spent dealing with the kind of BS "gay panic" type defenses that defense counsel sometimes successfully employ to get aquittals, even for crimes of heinous violence against gay people (and other groups).
3.7.2007 10:31pm
Brian G (mail) (www):
Even this website could be considered full of hate crime from time-to-time under that legislation, and we all know this site is nothing of the sort.

Let's not kid anybody. There is no reason whatsoever for this law, and I am sure that CAIR is somewhere behind it all, along with the Saudis and every other Muslim money man spreading out cash to the Democrat-majority.
3.7.2007 10:33pm
M. Lederman (mail):
Dale: Back in 2000, we in OLC wrote a memo, incorporated in a DOJ letter to Congress, explaining why the statutory amendment would be constitutional -- under the Thirteenth Amendment as to some subsets of offenses, and under the Commerce Clause as to all others (even prior to Raich), because of the jurisdictional elements in the bill. 146 Cong. Rec. S.5353-5555 (June 19, 2000). (I assume the new bill tracks the 2000 version, at least as to jurisdictional elements.) Unfortunately, some of the best parts of that letter are in the footnotes, none of which was published in the Congressional Record. The full letter is available here, although it's a bit difficult to follow in that format.

I'm biased, but I thought it was a persuasive analysis. ;-)
3.7.2007 10:47pm
luispedro (mail) (www):
I suppose that under such a law, there would come a time when a defendent would argue that did not know his victim was gay, but thought him to be a "perfectly normal person."
3.7.2007 10:49pm
Steve:
There is no reason whatsoever for this law, and I am sure that CAIR is somewhere behind it all, along with the Saudis and every other Muslim money man spreading out cash to the Democrat-majority.

What a great comment. Seriously, shine a bright light on this stuff.
3.7.2007 10:59pm
Ramza:
My knowledge of Hate Crime law history is very basic, but I have heard that number 4 the reason why such Hate Crimes laws were originally created? (Besides the obvious political reasons). By making it a federal matter you allow the federal goverment to get involved instead if a biased State and Local person sweeping it under the rug, and doesn't "take care of it", or having Local juries acquit a person due to jury sympathy. Wouldn't similar logic also apply to these new classes they want to apply in a new version (gays and transgenedered are the main beneficaries to my knowledge).

Also having a federal hate crime law would also allow people who are victims of such assualts gain more confidence in reporting such attacks? In some areas, with some people (I am thinking transexuals) such groups feel the system is rigged against them, and if they report such an assualt it will get nowhere.

Of course Hate Crime law goes pretty much against everything our country stands for with equal protection of the law, federalism, trial by jury of your peers, but in some peoples minds the ends justify the means.
3.7.2007 11:01pm
Ramza:
<blockquote>
I suppose that under such a law, there would come a time when a defendent would argue that did not know his victim was gay, but thought him to be a "perfectly normal person."
</blockquote>
A lot of hate crime laws work on <b>perception</b>, and not whether the victim possess such feature. They try to access the rational of the perputrator, the perputratorbeat this man for he <i>thought </i>he was gay, or thought this man was flirting with him.
3.7.2007 11:06pm
Ramza:

I suppose that under such a law, there would come a time when a defendent would argue that did not know his victim was gay, but thought him to be a "perfectly normal person."

A lot of hate crime laws work on perception, and not whether the victim possess such feature. They try to access the rational of the perputrator, the perputratorbeat this man for he thought he was gay, or thought this man was flirting with him.
3.7.2007 11:06pm
U.Va. 1L:
Obviously, the root problem is hatred in the hearts of the perpetrators of violent crime, which we should (and no doubt do) all join in condemning. But, hate crime legislation seems to be misguided. It essentially makes it worse to commit violent crimes against certain classes of people (or conversely, it then becomes less bad to commit violent crimes against the non-special classes of people). It grants more protection (by way of more severe punishment) for only some people. By definition, not all victims of crime get that protection.

Is it really worse, say, to beat up a kid on the playground for being gay than the stereotypical nerd who gets bullied throughout his life? I just don't see the motivation as being that relevant. I condemn both and support equal punishment for both. As others have noted, I think it would be difficult to show that hate crime legislation actually leads to either (1) reduced hatred, (2) reduced acts of violence motivated by hatred.

Plus, it is hard to peer into the hearts and minds of the perpetrators. I would be concerned that acts of violence that could be hate crimes will have a high number of false positives. That is, A beats up B (who is gay). B says A made a derogatory comment when he attacked him. Investigators discover that once at a bar a couple years ago A made a derogatory comment about gays. Boom! Hate crime! But, clearly that doesn't prove that A attacked B because he was gay...maybe B cut A off in the parking lot, or whatever. Also, the threat of busting someone for a hate crime might unfairly lead to plea agreements. ... I don't have much sympathy for violent offenders (and hope to send them directly to jail without passing Go when I graduate and become a prosecutor). Nevertheless, I think the system should be fair to the offenders and fair to victims who don't fall into a protected class.
3.7.2007 11:48pm
Monkberrymoon (mail):
Would the Matthew Shepherd situation even be covered by this? I thought they robbed him for money (using his gayness as a way to lure him), but not that they specifically killed him because he was gay.

If I have that wrong, please let me know.
3.8.2007 12:23am
Ramza:

Would the Matthew Shepherd situation even be covered by this? I thought they robbed him for money (using his gayness as a way to lure him), but not that they specifically killed him because he was gay.

The original plan was to rob him so they can use the money to purchase more drugs, after that... well there are so many stories of what happened that night with the Matthew Shepard case.

First Aaron McKinney (one of the two people who robbed him, Aaron is the one who beat and killed Shepard) said he and Henderson weren't there and their girlfriends provided an alabi. Once Shepard died their girlfriends retracted the alabis. Thus McKinney and Henderson's lawyers did a "gay panic defense" saying Shepard flirted with McKinney and "McKinney lost it."

After the trial was over, years later (Nov 2004). 20/20 released a special where they interviewed McKinney and other people of Shepard's home town. In that interview McKinney gives a third story, he was planning to rob Shepard, but now the killing wasn't due to gay flirting it was him being high on Meph and thus he did a rage and beat Shepard to death.

The 20/20 interview wasn't really good journalism instead it was focusing on sensationalism and ratings for this was the first 20/20 Elizabeth Vagras was going to do after replacing Barba Walters. For example in the show 20/20 argues McKinney couldn't perform a hate crime, for according to one man, one source, Shepard's occassional limo driver, McKinney is bisexual for the limo driver once had a threesome with McKinney and McKinney's girlfriend. Additionally according to the same source, Shepard had AIDs, for Shepard told his limo driver (but not anybody else). Oh McKinney was also asked by Vargas if he was a bisexual, McKinney denies being a bisexual.

So in other words, who knows what happened that night.
3.8.2007 12:43am
wooga:
Wouldn't this make all rapes a federal crime? After all, it's an act motivated by bias against the victim's sexual identity, and it runs up medical expenses (If I go to X hospital, I'm not going to Y hospital, and apparently that means I'm affecting interstate commerce).

The law is a joke, as there is no way the current SCOTUS is going to uphold it under the current Com. Clause and federalist scrutiny - unless Kennedy has some dramatic epiphany. The law is simple political pandering, and a waste of Congressional resources.
3.8.2007 12:57am
jvarisco (www):
The thing about hate crimes that has always bothered me is that they serve to legitimize non-hate violations; as if it's somehow more acceptable to beat someone up for their wallet. Neither should be condoned. It's also essentially punishing people for thoughts rather than actions: the same action, depending on the motivation, is somehow more or less bad.

What might be a better idea would be to establish funding specifically for prosecuting such bias crimes, rather than merely increasing sentences for convictions. This would help to stop such things (more resources = more convictions) while not also legitimizing certain other crimes.
3.8.2007 12:58am
FoolsMate:
On top of the thought police aspect of this, what bothers me is the inevitable disparity in the application of hate crimes laws, because it is so obviously skewed to protect various real or imagined victim groups versus heterosexual white men. For example, white vs black and vice versa crime surely both occur — I am very concerned in this PC era that DAs will prosecute white on black hate crimes on less evidence.
3.8.2007 1:43am
The General:
I think we're missing the boat on why the homosexual activist community wants this type of legislation passed. It increases legal protections for them and their special interest. Later on they will use the very existence of such laws as justification for other arguments, such as overturning democratically passed traditional marriage laws and the military's policy of excluding gays.

The existence of such legislation has been used in the past (in other contexts like race and gender) as a factor considered to justify the application of strict(er) scrutiny as to other laws. That application causes courts to overturn those laws.

The bottom line, this type of push for legislation can't be viewed in a vacuum.
3.8.2007 2:03am
jgshapiro (mail):

It's also essentially punishing people for thoughts rather than actions: the same action, depending on the motivation, is somehow more or less bad.

That's already true for many crimes. If I assault you just because I'm pissed at you, I might be charged with felony assault or aggravated assault, but if you can prove I wanted to kill you, I get charged with attempted murder -- even if my actions and your injuries are exactly the same. The only thing that has changed is my thoughts (and my sentence).
3.8.2007 2:12am
Cornellian (mail):
Of course Hate Crime law goes pretty much against everything our country stands for with equal protection of the law, federalism, trial by jury of your peers, but in some peoples minds the ends justify the means.

There's nothing contrary to equal protection to have a sentence vary according to the characteristics of the victim. If assault victim "A" is a 25 year old male marine in top physical condition, assault victim "B" is a 7 year old child and assault victim "C" is a woman who is 8 months pregnant it has never been the case that the perpetrator of "B" and "C" could demand the same sentence as the perpetrator in "A" on equal protection (or any other) grounds. Nor does a disparity in sentencing mean that victims "B" and "C" are somehow worth more as human beings than person "A."

As for federalism, that had its last gasp in Lopez/Morrison, was killed off in Raich and isn't coming back. The feds can do whatever they damn well please provided they're willing to tack some jurisdictional magic words onto their statute - they just can't force the states to do it for them (though they can bribe them to do it).
3.8.2007 2:15am
dearieme:
Well argued. I suppose it's even possible that such laws could make matters worse. Who knows whether a hate-filled mind will further corrode with resentment that some politically-favoured group gets privileges in law that are not available to the said hater and others in his circle? Could they even convert someone who is just a drunken or drugged-up thug looking to pick on someone weak into a Thug with a Cause?
3.8.2007 2:40am
Bill Poser (mail) (www):
Insofar as hate crime laws have any marginal effect, it can only be to suppress the expression of "hate". To the extent that they are effective, aren't hate crime laws therefore in violation of the First Amendment?
3.8.2007 2:49am
jvarisco (www):
jgshapiro) That's not true, though. Attempting murder implies that you were trying to kill the person. That's intention (what you tried to do) rather than thought (why you tried to do it). Insofar as hateful thoughts are protected by the first amendment, I'm not sure how the legislation stands.
3.8.2007 2:55am
Cornellian (mail):
If you kill someone because you just enjoy murdering people, you'll get a longer sentence than you would if you killed that person because you believed he had just killed your child, even if you kill him in exactly the same way in both cases. Giving you a longer sentence in the first case doesn't violate the First Amendment. The first amendment doesn't prohibit the law from taking your motives into account.
3.8.2007 3:24am
M. Lederman (mail):
Thanks very much for the plug, Dale. I agree that "[n]one of the Court's decisions in the Commerce Clause area since 1995 have definitively addressed whether the inclusion of such a hook would render an otherwise unconstitutional law constitutional." But it would be a fairly significant development, contrary to a bunch of pre-Lopez law (see also note 5 of Morrison; Lopez at 562), if the Court were to hold that a statute containing such an element is facially invalid under the CC. (As-applied questions are more of a challenge -- and in these contexts such questions are usually resolved as a matter of statutory construction w/r/t the jurisdictional element.)

If there are any VC readers out there who are actually interested in the somewhat arcane (but potentially significant!) "jurisdictional element" aspect of Commerce Clause jurisprudence that Dale and I are discussing, I have a bit more about it on pages 19-27 of this brief.
3.8.2007 3:38am
U.Va. 1L:

jgshapiro:
That's already true for many crimes. If I assault you just because I'm pissed at you, I might be charged with felony assault or aggravated assault, but if you can prove I wanted to kill you, I get charged with attempted murder -- even if my actions and your injuries are exactly the same. The only thing that has changed is my thoughts (and my sentence).


That's the difference between intent and motive. An assault with the intent to beat someone up would be punished differently if the motive of the beating was "hate" as opposed, say, to boredom.
3.8.2007 4:19am
Ron Hardin (mail) (www):
Counter hate crime law mentality by suggesting _lighter_ sentences for hate crimes instead. I mean, obviously the perp isn't exercising full free will when his emotions are ruling instead.

Lautreamont suggests the progression from feelings to law (_Poesies_) :

``The feelings weep when they must, as when they need not. Analysis of the feelings does not weep. It possesses a latent sensibility which catches one off guard, prevails over miseries, teaches how to dispense with a guide, provides a combat weapon. The feelings, sign of weakness, are not feeling! The analysis of feeling, sign of strength, generates the most magnificent feelings I know. The writer who is taken in by feelings must not be placed on a par with the writer who is taken in neither by feelings nor himself. Youth intends sentimental lucubrations. Maturity begins to reason without confusion. He was only feeling, he thinks. He used to let his sensations wander: now he gives them a pilot. If I liken humanity to a woman, I shall not expatiate upon her youth's being on the wane and the approach of her middle-age. Her mind changes for the better. Her ideal of poetry will change. Tragedies, poems, elegies will no longer take precedence. The coolness of the maxim shall prevail!'
3.8.2007 7:03am
Richard Aubrey (mail):
What does it take to prove "hate" as an additive?

Promise the cell mate a double cheese Whopper and large fries to say the defendant bragged about beating up (insert victim group of the month)? Lots of scope for prosecutors under pressure from the aforesaid (insert victim group of the month).
3.8.2007 7:39am
Shawn-non-anonymous:
I have mixed feelings on hate crime laws. I've been the victim of a "hate crime" a few times in my life. One incident involved a bunch of yahoos in a car throwing beer bottles at people leaving a known gay bar. The existing laws, in my opinion, could handle this without any additional "hate crime" additive. Assuming, of course, that the police would actually pursue and arrest rather than brush me off. At the time of this particular incident, police were often "raiding" the bars and harassing the patrons at a time when being "out" was more likely to get you fired. Gay men were nervious about police. So the component of hate crime laws that increases the chance even homophobic police will enforce existing laws is useful.

Having said that, I've always marvled at the irony of what it takes to pass these laws. When homosexuals were universally reviled the chance a law protecting them would pass on a national level was slim. As homosexuality gains more public acceptance or at least tolerance, the chances increase. When a minority is integrated enough into the culture of the majority (Queer Eye for the Straight Guy) that they don't need the protection laws like this as much, suddenly people are willing to vote in favor.

A final thought: whereas the existing laws criminalizing beatings, killings, and robbings are sufficient in their punishments without adding the "hate crime" component, what about grafiti? What is the normal punishment for spray painting "Three Dog Night!" on somone's garage door? What is the effect on the community for that action? Is that sufficient punishment for spray painting a swastika on a jew's door or "Faggot!" on a gay man's door? One is probably a random act of vandalism, the other marks someone into a target. The paint can be removed but the mark cannot.
3.8.2007 8:27am
John (mail):
I think this would federalize rape, because the crime is defined as:

"Whoever, whether or not acting under color of law ... willfully causes bodily injury to any person ... because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person..." shall be imprisoned, etc.

Note that if the injury is because of the "gender" of the victim, not to mention the "gender identity," the crime is committed. The latter phrase is directed, I assume, to transsexuals, transvestites, etc., but the former ("gender") would apply simply to one's sex. It's pretty easy to see that rape would be covered, as that plainly occurs because of the victim's sex.
3.8.2007 8:39am
elChato (mail):
Hate-crimes laws seem unproblematic to me, certainly on the state level. I have no problem with enhancing punishment based on the offender's motive. We do this outside the hate-crimes arena all the time: the same act can be manslaughter, second-degree murder, or a death penalty case, all depending on what the defendant's motive was.

I do agree with Dale that the proposed FEDERAL law has some constitutional problems and will likely have little effect beyond window dressing.
3.8.2007 9:38am
Bruce Hayden (mail) (www):
It is silly, for any number of reasons. Mostly it is pure pandering to the Gay community. So, we will have a new law on the books that will be very selectively and rarely enforced. All so that the Gay community can feel good about themselves. Fine with me.

First, a lot of states already have hate crime statutes on the books, and at least some, I think either allow for homsexuality, or are vague enough to cover. Nevertheless, the important thing is that right now, throughout most of the country, straight on gay crimes are liable to be prosecuted as vigorously as most others. Indeed, likely a lot more vigorously than much of the Black on Black crime in this country right now. Not like my HS in the 1960s when some of our football players would go out on Friday nights to "roll queers".

Just look at the Matthew Shepherd case. Did the perps go free? Not even close. The saying we have down here about WY is that that is where the men are men, and the sheep are nervous. A symptom of what many consider hyper-homophobia. And yet, they perps were prosecuted for capital murder. Apparently, Russel Henderson is serving two consecutive life terms, and Aaron McKinney is serving the same, but without the possibility of parole. I guess, maybe they could have gotten three or four consecutive life terms instead, if there had been hate crime laws on the books at the time. Realistically, about the only thing that I can see that a hate crime statute might have really added there was the possibility of torture. How about if conviction of a hate crime allows the state to suspend the prohibition on cruel and unusual punishment?

Another problem with hate crime legislation is that in order to satisfy Equal Protection (ok, not strictly required at the federal level, but..) the statutes have to be drafted in a race, or now sexual orientation, neutral way. The result is that we probably see more black on white hate crime prosecutions in some states than we do black on white now.

Another problem is that in order to prove the element of hate in a hate crime, you typically need some contemporaneous indicia of hate, such as now the use of racial insults. Of course, usually, they are flowing both ways... I just don't see general homophobia being sufficient here, except maybe in a trial in the Castro district of SF, etc.

Another problem I see is that right now, the most "homophobic" elements of our population are members of other protected classes, such as Muslims, Blacks, and Hispanics. So, we could end up with a double hate crime prosecution if it involved a fight between one of these groups and a gay, with both slandering the other. That should prove entertaining.

Well, as I said, I see it as a stupid law being pushed to pander to a major Democratic party constituancy. But since it really isn't going to cost any more, or be used much at all, I am willing to say, fine.
3.8.2007 9:40am
Just Dropping By (mail):
"But why not cover 'Vietnam-era status', age, pregnancy, and so on?"

Penalties for crimes against pregnant women are arguably already enhanced by laws that allow prosecutors to bring separate charges for injuries to a fetus.
3.8.2007 9:40am
Duffy Pratt (mail):
If a bisexual committed a rape, it might not be a hate crime. The victim may just have been the nearest thing on two legs. Also, not all rape would be a hate crime. Statutory rape might fall out of the net.

BTW, is there necessarily any problem with a new statute just because it covers everything that is already covered by some existing statute? I don't think anything prohibits Congress from passing overlapping, or even redundant, legislation.
3.8.2007 9:49am
veteran:
just a passing thought:


C.S. Lewis put it is thusly:


Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their consciences.
3.8.2007 10:01am
y:
I think in the wake of the Duke "rape" case it is especially important that we call into question the fairness of those supporting hate crime legislation. They're not always on the side of the angels, and that's something to keep in mind if we're going to be jailing kids beyond their already excessive prison terms. Hate crime legislation is an open invitation to let loose racial, gender, and gay-rights politics and "group justice" into criminal law and an individual's trial.
3.8.2007 10:03am
y:
"Apparently, Russel Henderson is serving two consecutive life terms, and Aaron McKinney is serving the same, but without the possibility of parole. I guess, maybe they could have gotten three or four consecutive life terms instead, if there had been hate crime laws on the books at the time. Realistically, about the only thing that I can see that a hate crime statute might have really added there was the possibility of torture."

Very good point. Bush made the same argument against Gore, concerning a question about the Byrd case in a Presidential debate. People attacked Bush for smiling, but his point was spot-on. Texas doesn't coddle murderers, and to have a liberal like Al Gore demanding harsher punishment than a capital sentence and life sentence for another perpetrator was just.....perverse.

The best debating point Bush has ever made, not that that's saying much.
3.8.2007 10:07am
Dan Hamilton:
Hate Crimes are just a step toward Thought Crimes. Once it is well established then there will be a move to use it for lesser and lesser instances. From a physical attack to a verbal attack. Then defining a verbal attack as not needing to be directed at a person but at a group. finally you end up with what happened in Canada where they were charging a Minister with a crime for preaching against Gays.

Fight this NOW or see speach crimes in the future.

The Feds have no business in Criminal Law.
3.8.2007 10:23am
Jon Rowe (mail) (www):
Not that I am a fan of hate crimes laws but:


Another problem with hate crime legislation is that in order to satisfy Equal Protection (ok, not strictly required at the federal level, but..) the statutes have to be drafted in a race, or now sexual orientation, neutral way. The result is that we probably see more black on white hate crime prosecutions in some states than we do black on white now.


Why is that a problem? If hate crimes laws are on the books, why is it a problem if more black on white prosecutions are the outcome?
3.8.2007 10:26am
Adeez (mail):
I'm a bleeding-heart, who also happens to practice discrimination law, so to speak. That said, even I am against this legislation. And for various reasons, including federalism. However, I then read comments like

"I think we're missing the boat on why the homosexual activist community wants this type of legislation passed. It increases legal protections for them and their special interest. Later on they will use the very existence of such laws as justification for other arguments, such as overturning democratically passed traditional marriage laws and the military's policy of excluding gays." and

"we will have a new law on the books that will be very selectively and rarely enforced. All so that the Gay community can feel good about themselves."

Why can't we all be a little more compassionate? Apparently violence against gays is so prevalent that we even have commenters here who have been victimized. Just b/c we disagree with proposed legislation, it doesn't follow that its supporters have this nefarious agenda. Perhaps it's motivated by those victims who genuinely feel that the laws would help? We all need to put more effort into imagining what it's actually like to be the person we're so quick to condemn.
3.8.2007 10:36am
Monkberrymoon (mail):
Thanks for the info, Ramza.

As for the larger point, it seems like a lot of this could just be better handled by open-ended jury sentencing. It allows the jury to take motive into account and would prevent legislatures from getting into sticky problems like, is a thrill-killer really better than a gay-killer (or white-killer or black-killer or whatever).

It also puts motive back in its normal place as background information, not an element of the crime (post-apprendi).
3.8.2007 10:36am
Mark Field (mail):
I think everyone is missing the forest for the trees here in focusing on gays. I'm guessing the biggest use of this statute will be in crimes which are alleged to be religiously motivated.
3.8.2007 11:13am
AK (mail):
If you kill someone because you just enjoy murdering people, you'll get a longer sentence than you would if you killed that person because you believed he had just killed your child, even if you kill him in exactly the same way in both cases.

Yes, but this can occur in one of two ways. First, Killing for kicks will be first degree murder. But if you killed your child's killer, the state might only be able to prove second degree murder or manslaughter. Second, even if you're charged with identical charges in the two scenarios, the sentencing judge might, at his discretion, give you a lighter sentence in the matter.

Neither of these two scenarios have anything to do with the defendant's attitude toward a characteristic of the victim. The rationale in both is that the defendant is not fully capable of competely forming the mens rea necessary to support an extremely lenghty sentence.

But there's no indication in the generic gay-bashing case that the defendant is any more or less in control of his faculties than when he kills a heterosexual.
3.8.2007 11:39am
D Palmer:
Hate crime laws are unnecessary and patently unfair to the families of victims of "ordinary" cimes.

Does the family of a man murdered for his money or for being in the wrong place at the wrong time suffer less of a loss than Matthew Sheperd's family? Hate crime laws deliver that message. They tell the families of victims that their loss is less than others.

Motive is relevant in the chain of evidence used to establish guilt, but it has no place in the determination of the penalty. Killing someone for having red hair is no less wrong than killing them for the color of their skin or their sexual orientation.
3.8.2007 11:54am
Ron Hardin (mail) (www):
Hate crime laws are unnecessary and patently unfair to the families of victims of "ordinary" cimes.

Actually you can revise this slightly, say in the case of murder, where capital punishment is neither deterrent nor retribution, but has to do with the place that society accords the voice of the victim, a voice that is missing.

I think that's the actual justification, though it's not articulated much. The reason for public support of capital punishment.

If you add hate in addition, it takes that away completely.

Replacing the voice of the victim you get the voice of the politically correct.
3.8.2007 12:08pm
Jimmy in Texas (mail):
I'm no legal expert but, it would seem all hate crimes legislation could be held to be unconstitutional due to fact it elevates one class of victims over another having suffered the same crime.

Additionally, I see no value in considering the motive beyond establishing culpability. Once you've collected enough incriminating evidence and established a motive, punishment, upon conviction, should be based solely on available sentences for conviction of that crime and not be enhanced because of what motivated the perpetrator. After all, a victim is no more harmed by what the criminal was thinking; a murder victim is just as dead if he was killed for being gay as he is for being killed because he had a nice Rolex on his wrist the perp wanted.

I've never understood how hate crimes laws withstood the protections afforded by the 14th amendement's "equal protection" clause. Are not all victims, regardless of why they were so situated, entitled to an equitable adjudication of the the crime committed against them?

Nevermind the inherent dangers in prosecuting people for what they are thinking. Look at where that is headed in Europe. Yikes!
3.8.2007 12:14pm
Toby:
If you watched a Clockwork Orange, you saw that clearly Alex loved what he was doing. Indeed, you might even say that he had love in his heart as he kicked a whino to death. Since his crime would have been worse if he had killed with hate in his heart, logically, this character's guilt must have been less because of the love...

Probably why he got off so easily. Good to see Society progressing further down this road...
3.8.2007 12:56pm
htom (mail):
The biggest future use of these laws will be for classes that are yet un-named.

These are not even "thought crime"; they are "prosecution imagines you could have thought" crime.
3.8.2007 1:11pm
Brian G (mail) (www):
I remember during the 2000 election the NAACP ran an ad against then-candidate Bush, with James Byrd's daughter, stating that when Bush did not support hate crimes legislation, it was like her father was killed all over again.

Those scum-ridden filthy dirtbags who drug Mr. Byrd got the death penalty! I thought the jury properly expressed our outrage in their verdict. (And, if you ask me, should have been shot that night at sundown for what they did.) How could hate crimes legislation add anything to the death penalty? Should they have gotten the death penalty plus a 5-year sentencing enhancement?

This legislation is pointless. If someone kills a man with malice, I don't care if they did it because the man was black, gay, or whatever. I want them punished to the fullest extent possible. I am not anymore outraged because the victim was gay than I would be if he were killed because he had a BMW that the murderer wanted to steal.
3.8.2007 1:22pm
Clayton E. Cramer (mail) (www):
At least part of what motivated hate crimes laws in California was that "non-hate crimes" weren't punished very severely. A co-worker sat on a jury in San Francisco that convicted a man of second degree murder for beating his wife to death in front of the children (like 4 or 5 years old) while high on cocaine. This was horrifying, so I asked her, "How long was his sentence?" She told me the judge sentenced him to probation--no jail time. The judge was concerned that the children would end up in foster care. Not surprisingly, she and her husband moved out of San Francisco, partly in horror of what the liberals thought was appropriate sentencing. (She wasn't particularly political, but she could see that something was terribly wrong.)

Until the three strikes law, there were vast numbers of examples that weren't quite this outrageous, where California simply refused to treat felonies as serious matters. I know a woman who finally called the police at about age 13 because her father had been molesting her. He was convicted--and his sentence was that he had to move out of the house for three years. (The mother just didn't understand why her daughter had gotten so upset about all this--her father had done this to her, and she let the father move back in after three years--when the younger daughters were just hitting puberty.)

I wrote a lot of letters trying to get legislators to increase the penalty for rape, which, unlike some other states, has never been a very serious crime in California, even back in the 1870s. Finally, they reached a compromise to create an enhanced set of penalties under some rather limited conditions--and I was told that feminists had opposed mkaing rape into a serious crime out of fear that juries in California wouldn't be willing to convict because of the prospect of sending someone to prison for a long time. (I suspect that this is liberal projection--even most liberals agreed with both of California's conservatives that rape should be a serious crime.)

This recent attack in San Francisco on this Yale University singing group, the Baker's Dozen, shows how difficult it is to get gross and brutal criminal behavior punished--when there's no allegation of discrimination. Maybe the solution isn't "hate crimes" laws, but prosecuting and severely punishing all violent crimes? It doesn't matter if the thug with the baseball bat beats someone up for being gay, or for having something in their wallet--that's someone who needs to be in a prison cell until they are old, gray, weak, and afraid of people like themselves.
3.8.2007 1:45pm
Ramza:

This recent attack in San Francisco on this Yale University singing group, the Baker's Dozen, shows how difficult it is to get gross and brutal criminal behavior punished--when there's no allegation of discrimination. Maybe the solution isn't "hate crimes" laws, but prosecuting and severely punishing all violent crimes? It doesn't matter if the thug with the baseball bat beats someone up for being gay, or for having something in their wallet--that's someone who needs to be in a prison cell until they are old, gray, weak, and afraid of people like themselves.



For once I am in complete agreement with Clayton Crammer
3.8.2007 2:09pm
Clayton E. Cramer (mail) (www):
y writes:


I think in the wake of the Duke "rape" case it is especially important that we call into question the fairness of those supporting hate crime legislation. They're not always on the side of the angels, and that's something to keep in mind if we're going to be jailing kids beyond their already excessive prison terms.
Excessive prison terms? For what crimes? I was reading Idaho Supreme Court decisions shortly after I moved here from California, and one appeal involved a guy who was given life + 15 years for two counts of child molestation. My first thought was, "What? That can't be right!"

In California, a single count of child molestation might get you three years in jail (see Cal. Penal Code sec. 288)--but sometimes, just probation. (I knew a victim whose molester received three years probation for repeated molestation when she was 13; I knew another victim who was 13, and the 41 year old who had sex with her was allowed to serve his jail sentence on the weekends over a year and a half period.)

To my surprise, Idaho statute allows judges to sentence child molesters to one year to life for each count. Idaho, you see, regards child molestation as a serious matter. California doesn't. Now, I am sure that many of the commenters here would regard Idaho law as "excessive." I don't. I've seen the enormous damage that child molestation does to its victims--and keeping these criminals locked up for a long time isn't "excessive," it's protecting the society from repeat offenses.
3.8.2007 2:13pm
Michelle Dulak Thomson (mail):
Clayton Cramer,

This recent attack in San Francisco on this Yale University singing group, the Baker's Dozen, shows how difficult it is to get gross and brutal criminal behavior punished--when there's no allegation of discrimination.

Actually, that's not strictly true. Right after the attack (at a New Year's Eve party, for all you non-Bay Areans) there were multiple suggestions that it was a hate crime of one kind or another. Some people noted pointedly that it came right after the Yalies sang the national anthem. Others mentioned hearing someone call the singers "fags." I don't think either allegation found its way into the actual charges filed against two SF teens this week, though.
3.8.2007 2:32pm
Clayton E. Cramer (mail) (www):

Some people noted pointedly that it came right after the Yalies sang the national anthem. Others mentioned hearing someone call the singers "fags." I don't think either allegation found its way into the actual charges filed against two SF teens this week, though.
I thought that I had heard the statement about "fags" but since this was San Francisco, I presume that it was meant in the sense of an insult, not an actual statement of belief that they were homosexual. Had that been the case, I'm sure the alleged attackers would already have been convicted by now.
3.8.2007 2:37pm
Adeez (mail):
"Maybe the solution isn't "hate crimes" laws, but prosecuting and severely punishing all violent crimes?"

Precisely. Let's end the nonsense drug war and fill prisons with people who actually deserve to be there.

But of course, once Big Bro takes away the one industry that supports much of the underclass, it'll have to devise a new way to deal with them. How's that war on poverty going?
3.8.2007 2:54pm
Randy R. (mail):
The General: Later on they will use the very existence of such laws as justification for other arguments, such as overturning democratically passed traditional marriage laws and the military's policy of excluding gays. "

The horror. To think gays might actually get some of the same rights that straights have....
3.8.2007 3:03pm
Alec (www):
1. No equal protection problem for hate crimes laws. Hate crimes legislation is facially neutral; i.e., categorical on basis of race, religion, sexual orientation, etc. Since they do not favor any classes of victims (i.e., blacks), they can easily survive the very low-level of scrutiny they receive. So no go on equal protection arguments.

2. As others have pointed out, motive and intent are always factors in punishment. Even the same crime (i.e., second-degree murder) will result in different punishments. Attendant circumstances matter a great deal in sentencing. Ex: Use of a government-issued authentication feature to commit fraud will enhance one's sentence (within the statutory maximum of course). Sentences are enhanced in child pornography cases where the acts depicted are sadistic in nature (which the courts have construed to include vaginal penetration because such acts are inherently painful).

3. There are probably some commerce clause difficulties with this legislation, to the extent it drops the jurisdictional hook. Prosecution for wholly intrastate activities was upheld where congress could conclude that those activities substantially affected the supply and demand for a prohibited commodity. In Raich, marijuana. Other cases have upheld the prohibition on purely intrastate possession of child pornography that has not moved in interstate commerce.

4. Federal sentencing guidelines already take bias factors into account during sentencing. I think this is sufficient. It sends the message as effectively as separate hate crime statutes.

5. I would rather this Congress focus on reforming mandatory minimums and correcting Raich with legislation prohibiting prosecution of medicinal marijuana cases. But as I am unlikely to get that, I am happy that the new Congress will piss off the (incredulous) far right with "symbolic" legislation. Not nearly as symbolic as the pieces of trash we were subject to in the Republican era.
3.8.2007 3:05pm
Dick Schweitzer (mail):
"Hate" goes to motive. Motive goes to intent. We already have laws on "malicious" intent. Do states need more Federal money for their AG offices to prosecute malicious intent?

As Hamilton (above) intimates, what is the Constitutional base for such legislation?

This is all so much hokum.
3.8.2007 3:19pm
y:
To Clayton: I'm certainly not saying that some offenders for some crimes don't get off too lightly.

I'm just saying that overall, sentences are quite harsh in the U.S. Consider one of many hypotheticals: an 18-year-old kid burning a cross in a yard, getting hit with an arson charge, disorderly this and negligent that, and then an enhancement for a hate crime, and basically the court turns a hateful prank into a huge sentence. We should lengthen his sentence because some sex offender got off too lightly?

I agree with others that intent is fair game in sentencing...but not THIS kind of intent. The Equal Protection Clause, numerous statutes, and established Court precedent point out the dangers of classifying people, even crime victims, based on race, gender, etc. Even for non-suspect classes (homosexuals, for now) the Sixth Amendment implications of using these types of classifications to lengthen an individual's sentence are disturbing. It's the supremacy of group justice over individual justice, and I think American law traditionally stands against that. There is no right for racial groups on average to get due process and a jury trial--there's a right for each individual.

And then of course there are the First Amendment problems of giving someone extra time for a politically motivated thought (or possibly politically motivated thought, say against hate crime legislation) without which she would've received a shorter sentence for the exact same act.
3.8.2007 4:05pm
KYViking (mail):
Sirs,
I read the following early this week and and I can't shake this feeling we are going to wakeup in about 15 years and be very sorry for the things that we wished for. It's some what
long and I don't agree with all of it, but down around the end this man pretty much scares the shit out of me.

Do We Have a Right to Hate?

The Fifth Column Selwyn Duke
March 5, 2007


Former NBA star Tim Hardaway made waves on the airwaves recently by remarking that he hated homosexuals. It became the story du jour the next day, prompting the obligatory posturing and feigned outrage. Pundit Bill O'Reilly said (I'm paraphrasing), "We can't have this in America," although at least he was sincere.

Now, I know we should hate the sin but not the sinner, so far be it from me to advocate hatred for anyone (his actions and beliefs are a different matter). But given the West's increasing embrace of hate crime/hate speech laws, we need to ask ourselves a question. Do we have a right to hate?

The Shill Media won't discuss it, but the aforementioned laws are metastasizing in the supposedly free countries of the West. I've often written about the case of Mark Harding, a Canadian pastor punished for criticizing Islam. But such examples abound; Bob Unruh writes at WorldNetDaily.com,

Two Christians in Australia have been indicted for criticizing Islam, and another for criticizing Zionism. A filmmaker has been threatened with arrest for using the word 'homosexual' rather than 'gay.' Now a German priest faces jail time for publicly criticizing abortionists, and in Holland, 'fornicators' and 'adulterers' are protected classes and cannot be criticized.

And just in case you think it can't happen here in the US, I'll point out that on October 10, 2004, eleven Christians were arrested in Philadelphia, Pa., for criticizing homosexuality. They were arrested under a Pennsylvania hate crime law, which, ominously, is almost identical to one (H.R. 254) going through Congress at this very moment.



Now, I must point out that it's unlikely the individuals in the above cases were motivated by hate, unless it's hate of certain behaviors or beliefs. Yet, the law has prosecuted them under hate laws, Orwellian legislation predicated on the notion that the government belongs in the hate business. So I ask again, do we have a right to hate?

In terms of moral rights, the answer is no. For that matter, however, we have no moral right to embrace or indulge any evil idea or tendency. This includes not just wrath but the rest of the Seven Deadly Sins as well: Lust, pride, greed, envy, sloth and gluttony. But the issue here isn't one of moral rights, but legal ones.

If I were as shallow as some of my critics, I'd now rail against "legislating morality," but I know better. A law by definition is the imposition of morality, as it prescribes or proscribes something based on the idea that it is, respectively, a moral imperative or morally wrong or a corollary of that which is so. If this isn't the case, why create the law? It would make no sense to outlaw that which isn't bad or mandate that which isn't good. Thus, those who dislike such intrusion need to be heedful: To have government legislate morality as little as possible means to have it legislate as little as possible, which is why it needs to be as small as possible.

The government definitely has no legitimate role prohibiting hate, real or imagined. And here I think of radical Moslem groups like the Taliban, which are condemned for enforcing laws based on a different deadly sin. When Muslims punish those who indulge lust (note: Lust is "disordered sexual desire"), they sometimes stone adulterers or homosexuals. Their medieval penalties are most disproportionate and I'm the last one who'd want to live under the iron burka. Having said that, in certain respects they are morally superior to our Thought Police.

Insofar as the above goes, what the Muslims proscribe actually is wrong, whereas the Thought Police often punish those who criticize what is wrong. Put differently, the Muslims do actually target lustful acts but, while the Thought Police claim to want to eliminate hate, their true focus is eliminating expression that refutes their agenda. Thus, the latter are far more contemptible in their deceit and sanctimony.

Their dishonesty is evidenced in double standards that would inflame the electorate if the Shill Media actually brought them to light. While Pastor Harding was hauled into court for criticizing Islam, the true hatred expressed by Muslims outside who chanted "Infidels, you will burn in Hell" was met with the sanction of government silence.

This is par for the course. When did you last see someone punished for criticizing Christianity, whites or those with normal sexual desires? Why do you think so-called hate crimes perpetrated by a member of these groups becomes front page news while one perpetrated against them is swept under the rug? Hate laws are used as a hammer to silence politically incorrect dissent and persecute those not enjoying victim-group status. Hate laws have nothing to do with opposition to hate and everything to do with hating opposition.

Thus, another question should be, do we have a right to hate whom we wish? Governments are more and more the arbiter of who and what can be hated and, in fact, play God as they would have us accept that hate is whatever they deem it to be. This is why I recoil at any intimation that people have no legal right to hate. The Tim Hardaways of the world have every right to hate whom they wish, and, too, you have a right to scorn and ostracize them for it. But he who implies we have no right to voice our beliefs is the most contemptible of haters: A hater of liberty.

A big part of our problem is that people tend to be as blind to hang-ups collectively as they are individually. Just as Moslem Wahhabis may believe infidels are the bane of humanity and that any means to subjugate them is justified, we have hate on the brain. Wrath is merely one of the Seven Deadly Sins, not the be-all and end-all. We have become errant radicals, much like the Shakers, who taught that all copulation was a sin, even that within marriage. The only difference is that we focus our tunnel-vision elsewhere.

Personally, even where real hate is concerned, I'd much rather have it expressed and know where people stand than see it bottled up, simmering beneath the surface, perhaps only becoming evident when it explodes in a fit of violence. It's ironic, the irreligious left would call the Shakers sexually repressed. Yet, the same set wants to create repressed haters.

Getting back to moral rights, one the government does not enjoy is the moral right to remove the legal right to make moral pronouncements. Governments have long done this, such as that of Korea and China, which imprison dissidents. And we would do well to remember that if we walk the same path, silencing those who disagree with the prevailing ideology, we will have no moral capital with which to condemn them. They will simply be the man in the mirror.

We have every right to hate. In fact, I'm starting to hate the government with a passion. And that's a hatred we should indulge without temperance.

Selwyn Duke lives in Westchester County, New York. He is a tennis professional, Internet entrepreneur and writer whose works have appeared on various sites on the Internet, including NewsWithViews.com, RenewAmerica.us and AmericanThinker.
3.8.2007 4:59pm
BobNSF (mail):
With Congress and the presidency in "conservative" hands for the last many years, you'd think all these fine arguments against hate crime legislation would have resulted in the repeal of existing laws covering race and, most appropriately to Bush's "faith-based" administration, religion. But no. Utter silence on the issue. All it takes is daring to add coverage for sexual orientation (real or perceived) and all those good arguments pop up. How odd.
3.8.2007 5:16pm
Clayton E. Cramer (mail) (www):


"Maybe the solution isn't "hate crimes" laws, but prosecuting and severely punishing all violent crimes?"


Precisely. Let's end the nonsense drug war and fill prisons with people who actually deserve to be there.
I agree that non-violent criminals should be very low priority for prison space. Georgia, not exactly a hotbed of liberalism, started experimenting some years ago with home arrest (except when going to and from work) for first offense burglaries of unoccupied residences. I suspect that similar strategies for a lot of other crimes that don't involve violence (with prison as a "if you don't obey the requirements, away you go" backup) would make a lot of sense.

Keep in mind that drug laws only have the support of about 90% of the population, so you might have some trouble gettng them repealed. The reason is pretty simple: intoxication (including alcohol) plays a significant role in most violent crimes, and a big fraction of that 90% who support drug laws are former potheads themselves, and have no intention of seeing others waste their youth the way they did.

But of course, once Big Bro takes away the one industry that supports much of the underclass, it'll have to devise a new way to deal with them. How's that war on poverty going?
The drug industry does NOT support "much of the underclass." We're talking about a few percent at most of poor people who are making money as drug dealers, and a much larger percentage who are being destroyed by either the direct consequences of drug abuse, or by the crimes committed by drug addicts to support their habits. Yes, it would make sense to go burgle homes in the suburbs, but people with criminal tendencies and that much ambition tend to run for public office instead. Poor people are the major victims of criminals.

There's a very effective war on poverty program available. Take the following three steps, and your chances of being poor are almost completely wiped out:

1. Graduate high school.

2. Get married before you have children.

3. Stay married.

Not everyone has all of these options, especially staying married, but the bulk of poverty in America is the result of breaking not just one, but all three of these rules.

I grew up below the poverty line (although not deeply below it). It wasn't to my taste, so I stopped doing it.
3.8.2007 5:22pm
Clayton E. Cramer (mail) (www):

With Congress and the presidency in "conservative" hands for the last many years, you'd think all these fine arguments against hate crime legislation would have resulted in the repeal of existing laws covering race and, most appropriately to Bush's "faith-based" administration, religion. But no. Utter silence on the issue. All it takes is daring to add coverage for sexual orientation (real or perceived) and all those good arguments pop up. How odd.
Not all odd. Bush isn't much of a conservative, and much of Congress in the last several years wasn't either. A fair number of them were too busy chatting up pages or taking "contributions" from Abramoff. (Of course, the Democrats who took "contributions" from Abramoff are still in Congress.)
3.8.2007 5:25pm
BobNSF (mail):
Below is a table showing the number of hate-crime murders counted by the FBI per year along with the number and percentage of those which were based on sexual orientation. None of the murders were anti-straight.

Gay people account for anywhere from 11% to 38% of bias murder victims over the last decade or so. Out of the larger pool of non-murder hate-crimes, we garner around 15% on a pretty regular basis (up slightly in years when "family values" get a lot of political play). In fact, the numbers are probably significantly higher because the FBI doesn't include statistics from half the states because those states don't track anti-gay crime as they do hate crimes based on, say, religion.

Considering our relatively small representation in the population, one might make the case that we're MORE qualified to be covered than some, not less so.

1996 12 2 17%
1997 08 3 38%
1998 13 4 31%
1999 17 3 18%
2000 19 2 11%
2001
2002
2003
2004 5 1 20%
2005 6 0 0%
2006 not yet released

I gave up trying to download and open the stats for three years. The summaries for those years changed and dropped the easy to find stats. For some reason, I can't download and open the big PDFs. Feel free to fill in the gaps.
3.8.2007 6:23pm
Adeez (mail):
"Keep in mind that drug laws only have the support of about 90% of the population, so you might have some trouble gettng them repealed. The reason is pretty simple: intoxication (including alcohol) plays a significant role in most violent crimes, and a big fraction of that 90% who support drug laws are former potheads themselves, and have no intention of seeing others waste their youth the way they did."

Is this a joke? I'm not being cute. I'll assume you're being serious, and will respond accordingly.

Please tell me where I can find this stat. First off, you say "drug laws" w/o any distinction between the many substances the gov. deems "drugs." Nor the distinction between federal and state policies. How can anyone respond to a poll about "drug laws" w/o more specificity? Second, what makes you believe that the bulk of this "90%" are marijuana smokers?

It annoys the hell out of me when commenters reflexively ask "cite please?" in response to other commenters who post the most world-is-round, sky-is-blue axioms. It gives me Law Review nightmare flashbacks. But this time, I must be annoying too, and respectfully request a cite. There is no way that 90% of the nation supports the current drug policy. I'll cite my gut on this one.
3.8.2007 6:39pm
BobNSF (mail):
Found the missing years:

2001 10 1 10%
2002 11 4 36%
2003 14 6 43%
3.8.2007 6:45pm
Ramza:
What about transgender, cross dressers, and simialar groups BobNSF? How many of those were hate crimes out of the "bias crimes"?
3.8.2007 6:47pm
Alec (www):
You may feel that there are equal protection and sixth amendment implications, but you are wrong as far as the courts are concerned.

Age, for example, is subject to the same level of scrutiny as sexual orientation (that is, rational basis). But an individual who beats and robs an elderly person or a child as opposed to a young man in his twenties will receive a much harsher benefit. That is because we are interested in protecting a class (as you put it, "group") and deterring those types of predatory activities. Ditto with sexual assault: age matters. The 19 year old who sleeps with a 15 year old is often as legally culpable as the 30 year old who sleeps with the 15 year old. Their sentences will almost always be different, to reflect how society truly views their culpability.

A person who assaults a homosexual (often, groups of people who assault homosexuals) has engaged in anti-social behavior that society (usually) condemns more vigorously than an assault motivated by economic gain. You can shout equal protection and free speech all you want; the punishment is for the conduct and the motivation that underlies the conduct. It would be strange indeed if we were uninterested in the particularized facts of the case.

The "free speech" argument is also baseless, and the above poster has mischaracterized the Pennsylvania case. The individuals in question were arrested for disobeying a police order to relocate after they disrupted a gay pride event. See About: Urban Legends and Folklore. Any First Amendment violations are, at the moment at any rate, uncertain and unclear. It is also useless to compare developments in U.S. law, where the First Amendment is an unusually strong protection of free speech, to the rest of Western Europe and even commonwealth countries (there is a reason libel claims are pursued in England).


We enjoy an absolute right to hate, and to hate viciously and loudly. We do not enjoy an absolute right to assault.

But since some of those posting seem to be shocked by the very idea that motivations spurred by, say, sexual orientation of the victim can even be considered in sentencing, why stop there, since sexual orientation is a category only subject to rational basis? No consideration of age. No consideration of attendant circumstances that do not relate to the elements of the charges in the indictment. The fact that the pedophile admitted to an impossibility to change his urges? Irrelevant for sentencing purposes; after all, we can only attack the conduct, not the thoughts behind the conduct. Please. The transparency of this argument is self-evident: social conservatives want an exception for gays. Period. An exception for gays in hate crimes legislation, in employment discrimination, in the conferring of public benefits, etc. This is evidenced by their refusal to put any energy into repealing hate crimes legislation generally; energy is reserved for adding "sexual orientation" to the list of protected categories.

If one truly believes that hate crimes laws implicate free speech, then the only intellectually coherent position is support for their repeal (indeed, for a constitutional prohibition against any such law). But with that goes many factors traditionally considered in sentencing and in statutory minimums and maximums.

As someone who works for a federal defender office and generally opposes harsh sentencing, I must admit I find it somewhat ironic that I am in the position of reminding social conservatives that their position, if applied consistently, would undermine sentences they find appropriate.
3.8.2007 6:48pm
Mark Field (mail):

Of course, the Democrats who took "contributions" from Abramoff are still in Congress.


Abramoff himself didn't make contributions to Democrats. Some of his clients did, but he personally did not.

Don't mean to divert the thread; just correcting a common misapprehension.
3.8.2007 6:56pm
Ramza:

Abramoff himself didn't make contributions to Democrats. Some of his clients did, but he personally did not.

Don't mean to divert the thread; just correcting a common misapprehension.


And the clients could have donated out of their goodwill to democrats, or Abramoff did a *wink* and a *nudge* to clients. But you are right lets not derail this thread.
3.8.2007 7:23pm
BobNSF (mail):
Ramza:

What about transgender, cross dressers, and simialar groups BobNSF? How many of those were hate crimes out of the "bias crimes"?


Don't know. Feel free to slog through the FBI data to find out! Seriously, I don't know if hate crimes against transgendered individuals fall under the FBI's "sexual orientation" grouping. I would guess that they do, even though transgender isn't a sexual orientation. Same with cross-dressers. Also, I don't know if the FBI recategorizes state statistics (from those states that collect them) to correct mistakes in victim identification. Frankly, it's not like the perps in these cases are likely to make clear distinctions either.
3.8.2007 7:24pm
Alec (www):
As far as I know the FBI does not collect hate crimes information on the basis of gender identity.
3.8.2007 7:32pm
BobNSF (mail):
This summary is from 2004


Forty four states and the District of Columbia have anti-hate crime laws, however only 24 states and the District of Columbia include sexual orientation in their legislation.

States that include sexual orientation in their hate crime laws:
AZ, CA, CT, DC, DE, FL, IL, IA, KY, LA, ME, MA, MN, NE, NV, NH, NJ, NY, OR, RI, TN, VT, WA, WI

States that do not include sexual orientation in their hate crime laws:
AL, AR, CO, GA, ID, MD, MI, MS, MO, MT, NC, ND, OH, OK, PA, SD, TX, UT, VA, WV

States that do not have hate crime laws:
AK, HI, IN, KS, NM, SC, WY


Many of the most notorious anti-gay murders of the last few years are not even included in the FBI stats, because the states in which they took place do not collect hate-crime stats or do not include sexual-orientation-based crimes in the stats they do keep.
3.8.2007 7:52pm
Alec (www):
Texas does not cover sexual "orientation," but does cover sexual "preference." The difference in language was a compromise for a conservative who did not want to establish any "status" precedent for homosexuality. Michigan requires statistical compilation of crimes motivated by sexual orientation but does not include sexual orientation in the state's "ethnic intimidation" statute. So the list is misleading. Additionally, as I noted before, sentencing guidelines may take this into account even if there is no statute on point. This means that they will be subject to sentencing enhancements within the statutory maximum for the underlying offense, a la the federal sentencing guidelines. Personally, that is the approach I would take with all hate crimes legislation.
3.8.2007 7:59pm
Richard Aubrey (mail):
I have a special needs nephew who was assaulted by some thugs from an Accredited Victims' Group. He was unable to identify them and the principle of the school in which it happened would rather be sued by amateurs--my sister--than by professionals--Accredited Victims' Groups.
Little was done, even in a pro-active sense. Those called "'tards" have a much less active advocacy organization and any rational bureaucrat considers that foremost.
I would have been happy with the usual penalties for assault on the unfortunate, until I reflected that it happened in California. If a hate-crime law could provide an additive to rectify loony sentencing, I would be for it.
But it seems to me that fixing loony sentencing would be a better answer, although probably impossible in California.
So, although the inhuman assholes were not caught, the episode did provide food for thought.
3.8.2007 9:00pm
SeaLawyer:
One thing I don't understand is how these laws have so much support. Commenter's here come from a wide range of views and it seems clear that most (not all) are against "hate crime" laws.

Personally I have been attacked more than once for who I was, as earlier mentioned I was that Marine in top condition and that makes you a target believe or not, for young kids trying to prove how tough they are. Fortunately I was able to walk away from those attacks while my attackers were not. That was not always the case for some friends of mine. I have never thought that additional charges should be brought because I was attacked simply because of who I am.
3.8.2007 10:59pm
SeaLawyer:
Randy,

The horror. To think gays might actually get some of the same rights that straights have....

Do you think hate crime laws help give people the same rights? Also if you could clarify are you for or against hate crime laws? I would like to think we could agree on something.
3.8.2007 11:04pm
Ramza:


Do you think hate crime laws help give people the same rights? Also if you could clarify are you for or against hate crime laws? I would like to think we could agree on something.

I don't know Randy's position on hate crimes laws, but I would like to point out. He did that post in response to a person saying we can't do hate crime laws for it leads to a "slippery slope" of gay marriage. I believe Randy comments about equality was referenced to that "endpoint" of the slippery slope fear.
3.9.2007 12:59am
Randy R. (mail):
I was responding to a post from The General, who warned that gays only want hate crimes so that we can then be considered a class, and that once a class, we will press for same sex marriage and to serve openly in the military.

I certainly don't believe any of the above, and was being sarcastic.

Regarding hate crime laws, I'm sorta agnostic. If they actually work to reduce crimes against a group of people based on hate, then I'm all for them. If not, then what's the point? I'm not sure either side has proven it, though.
3.9.2007 1:01am
chris s (mail):
is there any evidence that states with hate crimes laws have seen a reduction in such crimes, or that states with them see fewer such crimes than states without them? arguments re constitutionality and wisdom aside, is there any reason to think these things actually work? as others have noted, i doubt the Byrd killers would have paused before the lynching if Tex had threatened them with an extra 5 for bigotry.
3.9.2007 9:20am
Randy R. (mail):
And that's a good question for many things. The states that allow capital punishment: lower crimes rates or the same? States that have loose gun laws: lower rates of crime than others?

I'm always in favor of a policy that actually meets it's stated goals, assuming we all agree on the goals. And if it doesn't, then we are just pandering.
3.9.2007 9:43am
Shawn-non-anonymous:
For myself, I generally like the idea of hate crimes laws where they can take the "terror" aspect of an otherwise minor crime into sentencing consideration. Burning a cross on the front lawn of a person's home or painting a swastika on their door are relatively minor offenses if they don't take into consideration their actual effect on the victims and the community the victims belong to.
3.9.2007 10:25am
BobNSF (mail):
If the kid down the block spray paints his initials on your front fence, it's a property crime and darned annoying. If he spray paints "Kill the Cougars!", it's a property crime, annoying to you, and infuriating to the high school football team. If he spray paints "Kill the ____s!" (where ____ is a slur for a religious, racial, or other minority) and you are a ____, it's a different matter, isn't it? And it doesn't make much difference if it's your fence or a neighbor ____'s or down the block in front of the ____ group's building. There is an aspect of community intimidation in the last example that does not exist in the first. It seems foolish to me to ignore the qualitative difference in the crimes.

That said, if this society decides not to have hate crime laws and rely on other mechanisms, fine, but if more than 40 states have them, it seems to me that an awful lot of conservatives have already bought into them and they're not going away. And if almost half of those states don't cover sexual orientation, gender, gender identity, and disability, that should be addressed.
3.9.2007 1:13pm
Aleks:
Re: I'll point out that on October 10, 2004, eleven Christians were arrested in Philadelphia, Pa., for criticizing homosexuality.

Can you please give us the full context of this? I doubt very much that they were arrested for the reason you say with no other factor in play. Were they, perhaps, arrested for trespassing on private property during some sort of anti-gay political event? Or perhaps for making threats of violence against gays?
3.9.2007 1:52pm
Randy R. (mail):
From what I recall, they were being obstructive and violent as they were resisting arrest, and there were videos to prove it.
3.10.2007 12:45am