Tuesday, January 16, 2007

Hate Crimes

CNS News reports on federal hate-crimes legislation introduced by Rep. Sheila Jackson-Lee (D-TX). The legislation would extend the range of what constitutes a federal hate crime from activities interfering with federally protected activities and motivated by bias (e.g., preventing a racial minority from voting) to all manner of workaday violent crimes, provided that they too are motivated by bias.

Forget the problem of federalizing crimes that under the American tradition are the province of state law; that horse is galloping away from the barn at breakneck speed. Forget too the controversial question over whether “hate speech” would ultimately come under such laws, and be used to squelch productive public debate over, say, homosexuality. I suspect courts would not tolerate that. A far more interesting question is why there is a distinct criminal violation called a “hate crime”to begin with.

We take it for granted that “hate crimes” merit special attention because they are unusually bad for a society, but is that really true? Consider the following two hypothetical crimes:

1. Five men beat the tar out of a man to prevent him from mustering any resistance or seeking any assistance, enabling them to steal his wallet more effectively.

2. Five man beat the tar out of a man because of, in the words of Rep. Jackson-Lee's legislation, his "actual or perceived race, color, national origin, religion, sexual orientation, gender, or disability of the victim."

Which crime is worse? Bias is a bad reason to assault someone, but so is greed. The victim of the robbery beating is every bit as damaged as the victim of the hate beating. (If we suppose that property rights merit respect, beating a man because you want his wallet means you have no respect for his rights. This is a form of hate.) And if a man is assaulted and robbed precisely because of the "actual or perceived race, color, national origin, religion, sexual orientation, gender, or disability of the victim," is it likely to be seen as a hate crime, or as a mere robbery? In other words, will all hate crimes be treated as such if they don't fit preconceived notions of what a hate crime is?

These questions are what make "hate crimes" so dangerous to a society built on the rule of law. They make violence from some motivations worse than violence from others, even though the damage to the victims, and to the social fabric, is not intrinsically different. This is why the law generally refrains from making judgments on motives, concentrating instead on consequences. Even when motivation is an issue – murder vs. manslaughter, say – the reason for the difference is that the law will have different deterrent powers depending on the motive. Purposeful murder, because it creates gains of one sort or another for the perpetrator, requires greater legal deterrence than careless manslaughter. But there is no reason to think that a "hater" needs greater deterrence than a robber; if anything, crimes motivated by greed might call for greater deterrence, because of their material benefits.

But that is a utilitarian argument. Such arguments are important, but the more powerful concern here is the moral one – the idea that hate-crimes laws are built on the premise that some victims are more important than others. Such laws typically advance after revulsion over some horrible hate crime – a black man dragged behind a bus in Texas, a gay man killed and his body left on a fence in Wyoming. But those things are already very serious crimes, and the judges always tell us that hard cases make bad law; that is never more true than in this instance.



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