Hate Crime Laws
Summary
We have two goals. We want the act of burning a cross on a black person's lawn to carry a stiffer penalty than simply burning a pair of crossed planks. On the other hand, we want all Americans to have equal protection. We can balance both by focusing on laws against crimes that make an example of someone in order to intimidate a group of people.
Definition of "hate crime"
Per the Violent Crime Control and Law Enforcement Act of 1994, a "hate crime" is defined as follows[1]:
a crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime, because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person.
Dispute over types of hate crimes
The debate about hate crimes is often over what is exactly punished. We've identified a few types:
(a) committing a crime against someone in a protected class
(b) committing a crime that just so happens to intimidate a protected class
Many crimes against a member of a protected class automatically intimidate the whole class. For example, the rape of a woman intimidates all women who learn about the crime.
(c) committing a crime motivated out of hatred for a protected class
For example, in 2007 Stephen Moller punched Sean Kennedy in the face while calling him a "faggot," which led to a fatal head injury for Kennedy.[2]
(d) committing a crime in order to set an example to a protected class
Burning a cross on a black person's lawn
A strict interpretation of the law would only cover cases (c) and (d). However, (a) and (b) are in practice covered.
Free speech issues
Opponents cite free speech violations as a major issue. For example, they contend that if you attend a church ceremony where homosexuality is condemned, you could be prosecuted for a hate crime if you eventually commit a crime against a homosexual. As a result, this restricts churches from criticizing homosexuality.
The Matthew Shepard Act that is likely to be enacted, though, attempts to address these concerns.[3]
The following sub-section means the prosecution can't cite the defendant's membership in the KKK. However, they could cite a letter written by the defendant where he describes wanting to commit crimes against blacks:
In a prosecution for an offense under this section, evidence of expression or associations of the defendant may not be introduced as substantive evidence at trial, unless the evidence specifically relates to that offense. However, nothing in this section affects the rules of evidence governing impeachment of a witness.'.
The following sub-section is a vague catch-all that essentially says the law shouldn't violate the First Amendment. This goes without saying, but here it is:
Nothing in this Act, or the amendments made by this Act, shall be construed to prohibit any expressive conduct protected from legal prohibition by, or any activities protected by, the Constitution.
Most likely, an aggressive prosecution would still be able to cite membership in the KKK or somehow prove the defendant hates members of the protected class. This is where the problem with "thought crimes" crops up.
What we believe
The simplest way to understand the support for hate crime laws is that we want the act of burning a cross on a black person's lawn to carry a stiffer penalty than simply burning a pair of crossed planks. The simplest way to understand the opposition is that we want all Americans to have equal protection. We can balance both by simply having this more general type of crime:
(e) committing a crime in order to set an example to a group of people
That's ultimately why we're against burning crosses; because it shocks an entire community. So why not just legislate against that: "shocking entire communities."
This could include the case of a mafia boss ordering a hit on a grocery store owner to set an example to the community. Or this could include the case of a women's rights activist being victimized by rape in order to scare the whole women's rights community.
Most likely there already exists sentencing guidelines that take into account group intimidation. As a result, the current and pending hate crimes legislations simply state that a crime against a member of a protected class automatically intimidates the entire class.
Further research
The issue of "thought crimes" needs to be investigated further. While, current rhetoric on "thought crimes" is too hyperbolic to be taken seriously, there are likely similar laws in American history that drew the same criticism.
Also, more concrete cases of hate crimes need to be looked at, not just the most sensational ones. For example, on July 24, 2009, a brick was thrown through a white woman's window in a gentrifying part of Austin, TX with a note attached that read, "Keep Eastside Black. Keep Eastside Strong."[4] The police did not classify the incident as a hate crime. How often do these kinds of hate crimes crop up?
Notes
- ^ H.R. 3355 Violent Crime Control and Law Enforcement Act of 1994
- ^ Attorney General Eric Holder's Statement Regarding "The Matthew Shepard" Act. June 25, 2009. Accessed October 9, 2009.
- ^ Local Law Enforcement Hate Crimes Prevention Act of 2009 (Referred to Judiciary)
- ^ Police investigating brick thrown into East Austin home. July 24, 2009. Accessed October 9, 2009
