The Cincinnati Enquirer |
Editorial Page
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Nov. 6, 1998 |
| Hate crimes are terrible and terrifying things. Because he is gay, Matthew Shepard is kidnapped, pistol-whipped and left to die in the outback of Wyoming. Because he is black, James Byrd Jr. is dragged to his death in the streets of a rural Texas town. Struck by the gruesome details and senseless cruelty of these events, many naturally turn to that most blunt instrument of social organization: the criminal law. Congress, many states and even some localities are considering adopting or expanding their own hate-crime laws.
As an effort to commemorate recent victims and give meaning to their deaths, such legislation has a powerful emotional appeal. But emotions ultimately must yield to reason and principles of just punishment. Our society is deeply committed to the tenet that people should not be punished for what they think or who they are. Hate-crime laws typically increase the penalty for crimes that are committed because of the race, color, religion or other characteristics of the victim. Because existing laws already penalize the underlying illegal conduct, the additional penalty is imposed solely based on the biased thought. Looking to the thought behind the crime is not unheard of in the criminal law. Premeditated crimes are punished more harshly than crimes of passion. However, bigotry - the belief that a person may be worth less because of his race, color or religion - is closer to an ideology than a general mental state like premeditation. We would not increase the penalty for crimes motivated by religions, socialist or libertarian convictions. A person’s motivation cannot increase his responsibility for the harm he intentionally caused. While bigotry is a profoundly flawed view, the principle is the same. Just punishment reflects the gravity of the wrong done. Hate crimes, however, generally involve no greater wrong to victims than do similar, non-hate crimes. Although their deaths are tragic, Mr. Shepard and Mr. Byrd would be no more alive if their killers had acted from greed, jealousy or personal animosity. Nevertheless, it is sometimes argued that victims of hate crimes suffer unique humiliation and psychological harm. It is not clear, however, that victims of purely random violence, on one extreme, or of personal vendettas, on the other, suffer less psychological harm than hate-crime victims. Among all the senseless, vile and misconceived reasons to be attacked, do people consistently prefer to be victimized for one reason rather than another? |
Advocates of hate-crime laws also claim that members of the victim’s group, identifying with the victim, may feel vulnerable or angry. Because these psychological effects are difficult to gauge, vary greatly with the particular crime and group, and are not always foreseen by the perpetrator, they do not justify the across-the-board penalty enhancement that hate-crime laws establish.
Some have argued that hate-crime laws are needed to deter unacceptably high levels of hate crimes. At 10,000 a year, there are too many hate crimes. But there are too many occurrences of all categories of crime. Current penalties are thought adequate to deter the perpetrators of non-hate crimes. There is no evidence that hate criminals are more confident of escaping capture of less afraid of penal sanctions than others. Many potential hate criminals are cowardly, conflicted and effectively deterred by our existing criminal laws. Of course, some hate crimes are irrational, unpremeditated and so undeterred. In this respect too, hate crimes are like many other categories of violent crime and antisocial behavior. While higher criminal penalties will always be attractive, our belief that the punishment must be proportional to the crime limits the amount of deterrence that we can justly achieve. At bottom, the clash over hate crimes may be a matter of symbolism. Advocates of hate-crime laws believe they express society’s condemnation of hate criminals and solidarity with hate-crime victims. Opponents believe that they signal the acceptability of punishing thoughts and providing special protection of interest groups. These arguments over symbolic value cannot settle the question of hate-crime laws. Only if hate-crime laws are sound as a matter of public policy can their symbolic content be worth affirming. No message is more negative than that our society will punish persons to a degree that is unwarranted. Racists, homophobes, anti-Semites, misogynists and their ilk may be worse people than others, but the criminal law does not punish simply for being a bad person. We should not let our hatred of the haters overcome our commitment to just punishment.
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