My take on Hate Crime Laws and why they’re bad idea numero uno. Saying what I think and thinking what I say have never been more dangerous. Or incomprehensible.
Introduction
One of the organizing principles of every civilized society is that each individual has an inalienable right to believe the most ludicrous nonsense there is. I’m not kidding. It’s been codified numerous ways, the most famous probably being the First Amendment’s freedom of religion and speech clauses and the United Nations’ Universal Declaration of Human Rights (articles 1, 2, 3, 6, 7, 12, 18, 19, and 20). Freedom to believe Elvis is still alive? You bet. Freedom to think Clinton tells the truth? Sure thing. Freedom to consider ketchup a vegetable? Yes, yes, yes! (And it’s a good thing too, otherwise most Americans wouldn’t meet their Recommended Daily Allowance.)
All of which stands in marked contrast to the passage of Hate Crime Laws in recent years. This is going to sound quite politically incorrect, but Hate Crime Laws are a terrible idea. Nobody’s paid me to say that, either. Really. (But if you’d like to, I’ll give you a PO Box number.) It’s not that the motivation is bad, mind you—I support the desire of anybody who wants a safer, less violent world—but Hate Crime Laws violate some very fundamental principles in their attempt to achieve their ends. I don’t think they’re terribly effective, either, but effectiveness is really a secondary issue to the harm to civil liberties that results. I’d much rather see tougher penalties for those convicted of violent crime regardless of the race, religion, sexual orientation, etc. of the victim.
That Wacky Notion of Equality
When the Declaration of Independence declared in 1776 that “all men are created equal” it was talking about, more or less, land-holding, wig-wearing, white males. Today, we’ve thankfully come to a broader understanding of what’s meant by “all men” while retaining the original principle of quality, and wigs are purely optional. What it means specifically is not that everyone is gifted with the basketball talents of Michael Jordan, the scientific genius of Albert Einstein, or the raving lunacy of yours truly. (And thank God for that last bit.) No, what the Declaration is talking about is equality under the law. It’s taken this society a good long time to figure out that this applies to everyone, but we’ve done it in theory if not practice.
For years the life of a white male was worth more in the eyes of the law than that of, say, a black woman. As I’m sure we’ll agree, this wrong morally and ought be legally wrong as well. All lives, under the law, should be of equal value. One large problem with Hate Crime Laws as they apply to violent crime are that they make distinctions as to the value of one person’s life versus the value of another—a clear constitutional violation not to mention a bad idea. Now granted, there are still occasional exceptions where people are treated unfairly due to race, religion, sex, etc., but for the most part, the law (and society) recognizes that everyone is entitled to the same legal treatment.
Now I know that some people will argue that we continue to live in a terribly racist, sexist and homophobic society. It’s hard to dispute that when you can turn on the TV at any hour and see proof. But we need to make sure that the antidote is not worse than the disease, so to speak.
For example, one could argue that the disproportionate number of minorities incarcerated compared to their statistical percentage of the population is evidence of a discriminatory criminal justice system. While I don’t deny this (in fact, I believe this discrimination is one reason why the death penalty is a bad idea), I would essentially argue an alternate causality: Minorities and disenfranchised groups are not being given sufficient educational opportunities to create for themselves a successful situation. This, compounded with a living environment hostile to achieving those educational successes, in turn, pushes too many toward a life of crime. (I won’t even start in on the Hollywood/media glorification of hooliganism.) To the extent that these incarcerated individuals actually committed their crimes, I have no problem with them serving time. To the extent that society has not afforded them adequate alternatives to a life of crime, it’s a national tragedy. The point, however—and I do have one—is that the answer to this systemic discrimination is greater opportunities for minorities, not a reworking of the criminal justice system so that people are treated unequally.
For when Hate Crime Laws—or any law, really—violate the bedrock principle of legal equality, it’s a mistake. It seems to me that if a crime is abhorrent, it’s abhorrent no matter the race, sex, religion, sexual orientation, etc. of the victim. For so many years in this country, the life of a black person was considered to be of less worth than that of a white person, and the last thing we should want is for this country to start making those kinds of determinations again.
A First Amendment No-No
Hate Crime Laws—and not just those targeting violent crime—wither under the light of the First Amendment as well. People have a right to believe what they want to believe. In other words, our Constitution guarantees neo-Nazis, the KKK, and the Islamic Jihad the freedom to be stupid. People who deny the Holocaust, for example, have every right to hold this inconceivably naive belief. If others want to hate blacks, Catholics, gays, white males, etc., they have every right to their opinion. (What a terrible way to live, though.) As I’ve noted above, freedom of belief is a fundamental tenant of a free society, and laws which punish belief are immoral, unconstitutional, and not a whole lot of fun.
The second half of my objection to Hate Crime Law as it concerns the First Amendment—and this again applies to violent and nonviolent crime alike—are the rights of the accused. In short, my position is that even neo-Nazis (however abhorrent their views) have a right to free speech (given appropriate time and place restrictions). Similarly, I have a right to say that I think Neo-Nazis are low-intellect, jackbooted thugs and that if being a moron were a crime, the whole bunch of them would already be on death row. Which, interestingly, a lot of them are. So I think that evens out pretty well.
The ability to communicate ideas freely is an inherent right. We can put up time and place restrictions (because there is also a right not to have to hear someone), but it’s certainly not the role of government to go about placing barriers to free speech overall. (Indeed, minority groups tend to be the first ones stepped on when freedoms are restricted. Take for example, gay and lesbian literature/erotica in Canada in the late 80s/early 90s.) To the extent that Hate Crime Laws curtail free speech, they also deny a basic right to the citizenry and set a dangerous precedent.
Conclusion: My One is Worth More Than Your Nine
If it’s true that good things spring from following correct principles, then hate crime laws are bad things waiting to happen. Despite this, in Wisconsin v. Mitchell the Supreme Court disagreed with me:
- In Wisconsin v. Mitchell, the accused was one of a group of young black men. After discussing a scene from the movie “Mississippi Burning”, which showed a white man beating a young black, the group moved outdoors where a young white teenager was seen walking on the other side of the street. The accused said, “You all want to fuck somebody up? There goes a white boy; go get him.” He counted to three, pointed in the boy’s direction, and the group rushed the boy, beating him severely.
The accused was convicted of aggravated battery, but because he was found to have selected the victim because of the victim’s race the penalty was increased pursuant to the Wisconsin hate crime statute to four years in jail (the maximum otherwise would have been two years). The Wisconsin Supreme Court, however, held that the hate crimes statute violated the First Amendment, the freedom of speech guarantee of the United States Constitution, because it sought to punish one’s motive for acting, and that it was constitutionally overboard because it would have a “chilling effect” on the exercise by others of freedom of speech.
Now the Rehnquist-led US Supreme Court, displaying the First Amendment wackiness that they’ve become known for, unanimously reversed this decision, saying that a variety of factors go into sentencing decisions and certainly intent based on the victim’s race, religion, etc. was a sufficient and constitutional criterion to use so far as “penalty enhancement” went. My take on Wisconsin v. Mitchell is similar to that found in The New Republic on November 2, 1998:
- The basic problem with which all proposed hate-crime laws must contend is that they create a legal distinction between someone who kills a gay man because he hates gays and someone who kills a gas-station attendant in order to steal from his cash register. To create such a distinction in effect penalizes some criminals more harshly, not because of their deeds, but because of their beliefs. This clashes with constitutional principles protecting free thought and equality under the law.
In other words, this “freedom to be stupid” extends to all of us, and I, for one, oppose any law which takes away this marvelous American right. For better or worse, in far too many ways the rights of liberty and justice rely on the freedom to be wrong-headed. That being the case, criminalization of belief and speech imperils us all.