Covering the Front and Back Pages of the Newspaper
June 10, 2003
LAW: Hate Crimes
I'd been meaning to post on this point for some time, and recent posts by Eugene Volokh and Kevin Drum got me thinking again about hate crimes. Hold on to your hats, because for the first and perhaps last time, I'm going to take the more liberal position than Kevin Drum. What I propose, in fact, is a modification of hate crimes laws to fit comfortably with conservative principles as well as with the realities of our times, in which virulent and dangerous hatreds have once again become a widespread concern.
The conservative case against laws targeting "hate crimes" (for today, I'll stick to violent crimes; laws against things like cross burning are another issue) boils down to the following objections:
1. It's frightening to have the government punish people for what they think, and hate crimes cases wind up involving too much evidence about the defendant's opinions and motives and what books he reads.
All these are serious objections, but I think that some of them beg the question and others can be resolved through changes in the statutes. I did a 180-degree reversal on hate crimes after September 11, because it became clear to me that the harm targeted by the hate crimes statutes is precisely the same as the harm caused by terrorism: in addition to the violence itself, hate crimes, by their very nature -- the targeting of random persons for violence because of some distinguishing characteristic, such as race -- cause harm to the fabric of society as a whole, both by spreading fear among people similarly situated to the victim and by sowing mutual suspicion and resentment.
The "added fear" factor is really hard to deny. If you were a black man living in Jasper, Texas, and you basically trusted white people (as Dorothy Rabinowitz pointed out in Friday's Wall Street Journal, Byrd apparently voluntarily got in the truck with a couple of white guys who'd been drinking), you would almost certainly have felt more afraid in the aftermath of that crime; same for a Jew in Crown Heights after Yankel Rosenbaum was murdered, or a gay man in Wyoming after the Mathew Shepard murder. While it's true of any crime that it spreads fear, these crimes -- much like acts of terror like the DC sniper or the anthrax scare -- made certain people more afraid to go out in public in their own communities because they feared that they could be targeted next, and did so immediately (as opposed to more run-of-the-mill crimes that cause fear mostly as a matter of accumulation).
That, alone, is why the "unequal protection" argument begs the question; it's always true that the criminal law treats people unequally when it punishes a similar act more harshly because it was committed in circumstances that were likely to cause greater harm.
As for double jeopardy, hate crimes re-prosections have passed constitutional muster under a Supreme Court decision called Blockburger and its progeny because the laws have different statutory elements (i.e., different things need to be proved than for the underlying crime). But if we agree that multiple prosections are bad (and there are some counter-arguments on this point, although I'm not a big fan of them), there's no reason to be limited to the bare minimum protection provided by the constitution; a statute can easily be written to say that the "hate crime" statute can not be used in a subsequent prosection where there has been a prior prosection based on the same act or transaction, regardless of the charges.
The "it's not necessary" objection was useful for the James Byrd case, but it's true that in some cases, an added punishment will have some effect, particularly where the crime in question is a lower-level assault.
The remainder of the objections are aimed at the fact that we presently define hate crimes by (1) the defendant's actual motivation and (2) a laundry list of divisions: race, gender, religion, etc. I think I have a solution to this, although you might play with the language a bit to get it just right:
A person shall be guilty of a 'hate crime' and eligible for a higher sentence if he or she commits (one of a list of specified crimes), under circumstances that would lead a reasonable person to conclude that he or she intentionally selected the victim based upon an identifiable or perceived personal characteristic.
That's it. Just look at the circumstances of the crime, not the defendant's motive or history of using racial slurs or reading nasty literature; if the circumstances (statements made, the random nature of the selection of a stranger to victimize, perhaps the absence of another logical motive like robbery or a personal animus) would lead a reasonable person to conclude that this was a hate crime, then it was. You might consider writing in an express exclusion for robberies or domestic crimes, but I think in most cases that would be unnecessary.
As for who the laws "protect," the definition of "an identifiable or perceived personal characteristic" could be left as well to the courts, or simply to the common sense of juries, without need to create specific "protected classes" by legislation. The defendant picked on fat guys, or lesbians, or people with Mohawk haircuts? It's a hate crime. Doesn't matter if the classification is otherwise a legally suspect one or an immutable characteristic; doesn't matter which "side" of the line the victim was on; doesn't matter if the victim really was Jewish or gay or a Red Sox fan; if somebody appears to have targeted the victim because of some trait or characteristic, then a stiffer penalty applies because of the unique potential for spreading fear through such crimes.
Yes, the definition of the crime is still rather elastic, but that's true of a lot of laws; I suspect that refocusing the statute on the appearance of the crime to a reasonable person, and away from proof of subjective motivation, would remove a lot of the hazard of an Orwellian redefinition of "hate." I believe this is an elegant solution to the problem of hate crimes, and I submit that this is a type of hate crimes law that conservatives and libertarians could support.