EDITOR’S NOTE: The U.S. House of Representatives is scheduled to vote this week on legislation that would strengthen federal hate crime law to include sexual orientation and gender identity. In this essay, Not In Our Town Network member Jim Hennigan reflects on his beliefs about hate crime laws.
A Crime By Any Other Name
Nominally speaking, I hate “hate crime” laws.
By Jim Hennigan
It wasn’t until May 2007 that I gave much thought to the notion of so-called “hate crime” legislation and why people feel so strongly about it. That was when Sean Kennedy was killed in Greenville, South Carolina, the town I called home. More significantly, May 2007 was when it seemed like everyone who followed the local news formed an opinion about “hate crime” laws.
South Carolina was one of four states that did not – and does not – have hate crime laws on the books. Depending on how you leaned, Sean Kennedy’s death was either an opportunity or a threat that could upset that status quo. That’s because Sean Kennedy was a young gay man who – according to the police warrant issued at the time of the attack that resulted in his death – was beaten because “of the defendant (Stephen Moller) not liking the sexual identity of the victim.”
I would not have given “hate crime” laws much thought at the time except for this observation: the way people chose sides was counter-intuitive to what I would expect.
People who are otherwise hard-liners when it comes to law-and-order were tripping over themselves as they rushed to queue up in opposition to “hate crime” laws while, at the same time, these laws had their strongest advocates among people who typically complain that our criminal laws are already too draconian and overreaching and that our prisons are too full. I needed to know why “hate crime” legislation produces this role-reversal. Was it the product of well-reasoned thinking or was it grounded in the kinds of philosophical accommodations people make to rationalize a desired outcome?
Even though I was personally predisposed to thinking these laws were okay (if only because I figure tougher criminal laws are almost always good), I found the opposition arguments to be surprisingly seductive. So that’s where I cautiously entered the debate, intent on peeling away the layers of the rhetoric coming from all directions, in order to reach the core of what these laws are about.
There are three main arguments against “hate crime” legislation. First, a “hate crime” is, by definition, a “thought crime” in that any added loss of liberty or property beyond the baseline crime is a penalty imposed for nothing more than one’s thoughts. Second, these laws don’t fill in any gaps in the law because they create a new class of crimes for activity that is already illegal. And third, they violate the Constitutional principle of “equal protection under the law,” by giving preferential treatment to certain classes of people when those people are victims of crime.
A “hate crime” law worth enacting must do more than survive these objections. There must be some valid societal purpose behind it that distinguishes it from a capricious law that increases a criminal sentence for crimes that are committed, say, during breakfast.
Let’s start with the objection that I found to be the most compelling of all: the Orwellian undertones of increasing a sentence because a criminal acts with hate. Such laws could easily be the raison d’etre of the Thought Police in a futuristic science-fiction novel. George Will has written often on this point. He doesn’t hate “hate crime” laws because they might lead to the enactment of thought crimes in some future world. He contends that they are thought crimes because of the added criminal sentence that is attached as a result of nothing more than what a criminal was thinking during the commission of a crime.
But if we’re honest with ourselves, it’s not really a thought crime. The veneer of George Will’s claim was stripped away when I heard James Dobson, attempting to restate Will’s objection in arguing that “hate crimes” should not cover sexual orientation. Dobson was alarmed that such a law would “muzzle people of faith who dare to express their moral and biblical concerns about homosexuality.”
“Wait a second!” I thought when I first heard this. “Why shouldn’t we outlaw the expression of moral concerns by means of criminal activity?” You see, Dobson’s argument was intentionally deceptive because he omitted the part where those “expressions of moral and biblical concerns about homosexuality” must be in the form of a criminal action in order to amount to a hate crime. Hate crimes are nothing but existing crimes that come with a sentence on steroids. I’m not sure who Dobson doesn’t want “muzzled”, but I happen to feel strongly that killing, bludgeoning, lynching, arson and vandalism simply shouldn’t be part of anyone’s free speech toolbox – especially if those people believe they’re licensed to commit those crimes because they’re on some sort of mission from God.
Dobson’s ludicrous position exposed a fragility to George Will’s point, but I haven’t yet addressed Will’s more salient point that we shouldn’t increase criminal sentences based solely on the criminal’s mindset. That other shoe drops when we examine the second major objection to “hate crime” legislation: the fact that these laws are superfluous to the existing criminal code.
I was instantly suspicious with that argument because we do this all the time and almost always to the applause from the same people who are most quickly offended by the redundancy of “hate crime” laws. At the same time the “hate crime” debate was unfolding in South Carolina, Governor Mark Sanford, who is as principled a conservative as anyone when it comes to reviewing legislation, signed into law a new class of crimes applicable to gang-related violence. Sanford’s well-known for trying to shrink government and its reach into our lives. That makes him just about the last person on the planet you’d expect to create new crimes that cover existing crimes. He is the governor who was the last one to hold out on receiving hundreds of millions of federal stimulus money because the strings attached to those funds conflicted with his vision of smaller government. Yet he signed a criminal law that established new and stiffer penalties for vandalism and other existing crimes when they are also gang-related.
So a crime is not a crime is not a crime, after all.
The circumstances of a specific crime can impact society more profoundly than that same crime committed under different circumstances. What people intend and what motivates them when they act criminally has, for ages, instructed judges and juries how they should mete out the most appropriate sentence for the crime committed. Just consider the various ways we sentence people for the killing of another person and you know that that’s not a revolutionary concept. Indeed, I have yet to find a pundit anywhere – including on the Internet – claiming that the crime “Assault and Battery With Intent to Kill” is a thought crime or that it diminishes your other, run-of-the-mill assault and battery crimes because it is redundant with simple assault and battery. Clearly, the “thought crime” and redundant law arguments are arguments of convenience and rationalization because the outrage is not expressed for the hundreds of other well-established and universally accepted criminal laws that fall within the ambit of those arguments. We’ll still come back to George Will’s increased sentencing concern…but the fissure lines run deep.
That brings us to the third argument against “hate crime” laws: the “equal protection” argument. In May 2007, opponents in Greenville framed it this way: “Why should Sean Kennedy’s murder be avenged by stronger laws simply because he’s gay?”
I have to admit that this question introduces a seductive argument against “hate crime” laws. I asked myself, why should the typical “hate crime” victim classes be protected by stronger criminal laws? That doesn’t seem fair – let alone constitutional.
The answer came to me from those who pushed the point the hardest. They asked, with the utmost sincerity, why should Sean Kennedy and other victims of “hate crimes” get “better treatment” after being raped, attacked – or even killed? It was this preposterous notion – that a murdered man could get “preferential treatment” – that made me realize that it’s not the direct victim of a “hate crime” who benefits from the law. It’s the people who live and who were collaterally attacked – and who the perpetrator fully intended to attack collaterally – who make these crimes different in a meaningful way.
This is why the “equal protection” counterargument fails. It would be easy to take the vandalism of a house of worship and cite the offenders for one count of run-of-the-mill vandalism. But the distinction is that the crime is materially different. Not that the victim is different or even whether we agree or disagree with his views. We are not even judging the thoughts of the criminal as being bad. A “hate crime” law does not penalize Eric Rudolph for holding the view that abortion is the killing of innocents. It penalizes him for using the criminal act of bombing a building or a crowded park to terrorize many who disagree with him.
When someone sprays graffiti on the wall of a mini-mall, we call that vandalism. If, however, she sprays swastikas on a church, synagogue, or mosque, that’s different. And this is where we must rejoin George Will, because he would argue that the difference is what the perpetrator was thinking. And there’s a grain of truth to that. But the criminal justice system’s amplified response is warranted because, with one simple act of vandalism, the criminal intended to send (and successfully sent) a message of terror to all people of the faith she targeted.
If a criminal can leverage her isolated crime into such a broad and extensive result, why shouldn’t our criminal justice system respond in kind by exacting justice that leverages the penalty in a way that’s commensurate with the perpetrator’s intent?
From the vantage point of the First Amendment, a statement of fealty for one’s high school and a pronouncement of hatred for any given group of people are generally given equal deference. But when those statements are made by a criminal act – graffiti painted on the side of a building perhaps – our criminal justice system can, and should, recognize that the damages exacted by the expression of those messages are significantly different.
As a society, we cannot allow entire classes of people to be terrorized by the intimidating “messages” sent by criminals engaged in their rogue propaganda campaigns.
No law can keep them from hating people – that’s an altogether different problem with an altogether different solution – but our laws must recognize that the crime is decidedly more severe for the many other victims that the criminal was intentionally terrorizing with each criminal act.
If we simply punish the direct crime, then the broader “message” goes unpunished. Yet it is that indirect “message” that is often the primary motivation behind the direct criminal act. If there’s no heightened consequence to sending out that broader message, more direct crimes will surely follow. A society that remains silent as to the criminal’s larger audience is nothing less than complicit in encouraging more of those indirect “messages” and it shares the blame for the direct attacks that criminals exploit to send their messages of intimidation to entire segments of our communities.
For example, if a synagogue is targeted for vandalism and we don’t – or can’t – respond appropriately because we limit our criminal response to only punishing the direct act, then the criminal’s broader message is unrebutted by society. That, in turn, sends the message that everyone who practices any religion is vulnerable. If an unemployed truck driver bursts into a church firing his automatic weapon at a congregation he regards to be predominantly gay, a “hate crime” prosecution doesn’t require us to agree or disagree with the truck driver’s attitudes towards the gay community or that church community. The heightened sanction we seek is society’s way of saying that we will not tolerate criminal behavior for the purpose of intimidating and threatening entire segments of our community. We may disagree as to the thoughts of the perpetrator, but we must all come to an agreement as civilized people that we will not let rogue individuals sort out our societal friction points by their criminal wrongdoing.
When you get right down to it, “hate crime laws” don’t penalize thought. The reality is that they are measured and appropriate responses to forms of domestic terrorism. Terrorism, as defined by the FBI, is “the unlawful use of force or violence against persons or property to intimidate or coerce a Government, the civilian population, or any segment thereof, in furtherance of political or social objectives.” The FBI and other federal agencies recognize the significance of the perpetrator’s intention to intimidate or coerce others who are not directly attacked. And few people quarrel with that. But if we expand the range of criminal activity to include the malicious destruction of property – such as a building that gets bombed or ransacked – “hate crime” laws are nothing but tools that state and local law enforcement agencies can draw upon to fight domestic terrorism.
The real problem with “hate crimes” law is their unfortunate name and the reflexive objection that many citizens – and lawmakers – have when they hear that name invoked. It’s a problem that won’t go away and it’s a problem that only creates confusion which, in turn, opens the door to obfuscation of what is truly at stake for law-abiding Americans. Call these laws what you want, but we need to encourage them to be adopted as broadly as possible. Without them, we will deny ourselves much needed tough counterterrorism laws that effectively punish people who attack broad groups of people. And if we remain silent and impotent as to those acts of terror, then criminals, domestic and foreign, will maintain an upper hand over our criminal justice system.
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