The hate-crimes fight

Via Talk Left, the Washington Times is reporting that Orrin Hatch has finally relented and is now on board with Sen. Ted Kennedy's federal hate-crimes bill, titled the Local Law Enforcement Enhancement Act.

I've previously discussed why this bill could and should play a key role in the 2004 campaign, partly because it serves as an effective counterpoint to the GOP plans to make gay marriage a "hot button" issue. The GOP's handling of the legislation to date comes down, at its core, to the argument that crimes are a form of free speech. Republicans contend that there is no need to crack down on people who commit crimes against gays -- and the reality is that most Americans no longer believe this.

The Times report lays out the opposition's familiar arguments:

Opposition remains strong among some Republicans, though several of those who have been the staunchest opponents in the past declined to speak on the record about the measure drawn up by Mr. Hatch and Mr. Kennedy.

They are concerned that the bill would violate free-speech rights and give the Department of Justice free rein to step over local authorities to prosecute many types of violent crimes.

Then perhaps they should read the language of the bill, which states explicitly:

No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, the Deputy Attorney General, the Associate Attorney General, or any Assistant Attorney General specially designated by the Attorney General that--

(1) he or she has reasonable cause to believe that the actual or perceived race, color, religion, national origin, gender, sexual orientation, or disability of any person was a motivating factor underlying the alleged conduct of the defendant; and

(2) he or his designee or she or her designee has consulted with State or local law enforcement officials regarding the prosecution and determined that--

(A) the State does not have jurisdiction or does not intend to exercise jurisdiction;

(B) the State has requested that the Federal Government assume jurisdiction;

(C) the State does not object to the Federal Government assuming jurisdiction; or

(D) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence.

And then we get the familiar argument that the laws create "thought crimes":

"It actually punishes someone for what he thinks," said one Senate staffer whose boss opposes any form of the legislation. "That's pretty scary."

In reality, punishing a person more harshly for what is in their minds is a standard feature of criminal law, since it directly affects culpability. Bias-crimes statutes recognize, like a myriad criminal laws, that motive and intent can and should affect the kind of sentence needed to protect society adequately -- that is, after all, the difference between first-degree murder and manslaughter. Intent and motive can be the difference between a five-year sentence and the electric chair.

Attempting a sort of zero-sum analysis that makes the outcome (in the case of homicide, a dead person) the only significant issue in what kind of sentence a perpetrator should face (the death sentence vs. a prison term) would overthrow longstanding legal traditions of proportionality in setting punishment, effectively eliminating the role of culpability -- or mens rea, the mental state of the actor--as a major factor. Or, as Justice Oliver Wendell Holmes famously put it: "Even a dog distinguishes between being stumbled over and being kicked."

Moreover, this particular Republican argument against the bill actually argues against any hate-crimes law whatsoever. Someone needs to ask these same Republicans if they wish to overturn all of the nation's hate-crime laws now.

The truth, however, is that Republicans oppose this bill for one reason only: Because it expands the categories of bias motivation to include sexual orientation. As one source told the Times:

"With this bill, the federal government officially condones [the homosexual] lifestyle," said another Senate staffer.

The hard fact is that homosexuals are not granted any kind of protected or "special" status by including sexual orientation in hate-crimes laws. The federal and state laws dealing with these acts all are built around a basic concept: providing longer and tougher sentences for crimes in which certain kinds of bias are the motive. Racial, religious, and ethnic biases are universally addressed in both federal and state laws; some states also include gender, sexual orientation, or disability.

The laws, as such, are universal for all citizens. Any race, any religion, any ethnicity, and any sexual orientation would be protected under this hate-crime law. There are no "designated groups" -- rather, there are only categories of bias. The laws are focused on the motive of the criminal, not on the group identity of victim. Their purpose is less to protect any "groups" than to focus approbation on a recognizable social pathology in its expression as a crime.

They arise out of a basic reality: Bias-motivated crimes create more harm than the parallel crimes that they resemble. They are not intended to victimize merely the actual subjects of the crime, but the entire community that is the object of the criminal's bias. A swastika scrawled on a synagogue wall is not mere graffiti -- it's intended to threaten and intimidate all Jews within its reach, to "send a message" and "keep them in their place." At the same time, studies have shown that hate crimes are more likely to cause great physical harm to their victim -- and the long-term psychological effects are far greater, resembling often the trauma associated with victims of rape.

In this sense, these are very like laws against terrorist acts -- they recognize that the motive underlying the crime can cause much greater damage beyond the mere crime itself, and so deserves stiffer punishment. For that matter, they are structured similarly to anti-terrorism laws as well. They don't create new crimes; instead, they give prosecutors, judges, and juries the ability to punish (with longer sentences) only those acts that are already crimes. In the case of terrorism, the requisite motive is the desire to force political or social change; in the case of hate crimes, it's a desire to harm anyone belonging to the group against which the criminal has a bias.

These kinds of laws simply guarantee that any citizen, regardless of sexual orientation -- straight, gay, lesbian, or transgender -- will see society able to bring the full force of the law against anyone who threatens violence against them merely for their sexual identity, perceived or otherwise.

The existence of laws against such crimes essentially recognizes their reality as a social pathology -- a reality underscored by the statistics showing that violence against gays and lesbians constitutes the second-most common kind of hate crime.

At least Orrin Hatch has, in his own words, finally "grown up" and recognized the reality that most Americans do not believe in refusing recognize violent gay-bashing as a kind of hate crime. It is unlikely, however, that many of his colleagues will -- particularly those in the House.

Look for history to repeat itself here: The bill will almost certainly pass out of the Senate. And then it will be poleaxed by Tom DeLay and Co.

[See my previous posts on hate crimes here and here.]