Irrationales

-- by Dave

If George W. Bush vetoes the just-passed hate-crimes law approved by the House, as expected, it will be only the third such veto he's issued since becoming president. The first two were the stem-cell research bill and the Iraq appropriations bill. It gives us, if nothing else, a clear window into his priorities: feeding the base comes first.

In any event, I've been trying to figure out exactly what the White House's rationale for opposing the legislation really is. According to the Los Angeles Times report on the vote, the rationale for the veto is described thus:

In its veto threat, the White House said that state and local laws already addressed hate crime and that the bill would treat crime victims differently from others.

"The administration believes that all violent crimes are unacceptable, regardless of the victims, and should be punished firmly," the administration said. The White House contended the bill also raised constitutional concerns.

All of these claims are demonstrably false.

-- There are, as I noted previously, seven states without any hate-crimes laws at all, and others are dubiously written and even more dubiously enforced. Only a little over half the states include provisions for sentence enhancement for bias-motivated crimes involving sexual preference, and fewer still include provisions for gender or disability. The reality is that hate-crimes laws on the state level are a hodge-podge that are erratically enforced at best and widely varying from one state to the next.

-- There is nothing in this legislation, or in any extant hate-crimes law, that would treat one class of victims differently from another; everyone, after all, has a race, a gender, an ethnicity, beliefs regarding religion, a sexual preference, and they are all protected equally under these laws. What determines whether a crime is motivated by bias is the presence of a group animus and the selection of a victim based on that animus. What does occur under the law is that some perpetrators are treated differently -- but then, that is a normative aspect of criminal law. The criminals who cause greater harm are punished accordingly, and it is fairly easy to demonstrate that hate crimes indeed inflict such greater harm.

-- Many hate crimes (nearly a third of those reported to the FBI) are in fact not violent but are property crimes or threats and intimidation; the White House's attempt to frame the issue as one involving simply violent crime again runs aground on the reefs of reality.

-- Finally, there are no known constitutional concerns with this legislation. It fits well within the framework provided by the Supreme Court over the years regarding bias crimes, from Wisconsin v. Mitchell to Virginia v. Black, which have consistently found that the sentence-enhancement framework of bias-crime laws fits well within established criminal law in this country. No one in the House debate, that I'm aware of, raised constitutional issues. So what are these unnamed "constitutional concerns"?

Well, c'mon: We know what the real concern is. The Washington Times headline spelled it out for us: "House approves gay hate-crime law". The faggots are coming! The faggots are coming!

Now, Andrew Sullivan, as I mentioned in the previous post, is saying that the White House's rationale is different than the one we've been given publicly so far, namely: "But the one truly incoherent position is that hate crimes laws are fine for all targeted groups except gays." While I think you can find this position on the right (particularly among certain fundamentalists), I haven't found any evidence yet that Team Bush is actually arguing it -- though it must be said that what has emanated from the White House so far is every bit as incoherent.

But then, Sullivan's own argument regarding bias crimes is not exactly a model of thorough reasoning either:

There are, I think, two coherent positions on hate crime laws. The first is opposition to the entire concept, its chilling effect on free speech, its undermining of the notion of equality under the law, and so on. That's my position. I oppose all hate crimes laws, regardless of the categories of individuals they purport to protect.

But hate crimes have no known "chilling" effect on free speech any more than our current and longstanding laws against threatening and intimidating speech do generally; nor do they undermine the notion of equality under the law any more than the normative application of varying punishments according to the egregiousness of the crime, a standard aspect of all criminal law, does generally.

Sullivan's reasons for opposing hate-crime laws are based on assumptions that are almost as airless as Bush's. Meanwhile, he describes the other side of the equation thus:

The other coherent position is the view that hate crimes somehow impact the community more than just regular crimes and that the victims of such crimes therefore deserve some sort of extra protection under the law. The criteria for inclusion in such laws is any common prejudice against a recognizable and despised minority.

Sullivan simply has this part wrong. The laws are not constructed to give the victims "extra protection under the law" -- though that may well be one of its effects -- but rather are written to give the perpetrators extra punishment under the law. Hate crimes do not just "somehow" impact the community more than just regular crimes -- they quite reasonably have been demonstrated to in fact harm the community to a greater extent than the ordinary crimes they resemble (see here for more on that).

These laws don't exist simply because of agitation by victim-oriented civil rights groups; they exist because the crimes and their poisonous effects on communities are real, because communities and their law-enforcement apparatuses must deal with them, and because the laws were intended to help them do so.

So the criteria for creating categories of bias crimes isn't simply "any common prejudice against a recognizable and despised minority," but rather is the hard fact that this prejudice is motivating various criminal acts intended to terrorize those minority communities. That is, the mere existence of the prejudice is insufficient; the reason to pass a law such as this is that the prejudice is manifesting itself in the form of various criminal acts.

The theory behind all bias-crimes law is grounded in the hard reality of their existence; they represent a normative social response to a serious problem that, left unconfronted, can inflict real long-term harm, in this case in the form of the massive dead-weight loss of freedom that bias crimes inflict on millions of Americans. Frederick Lawrence, the eminent hate-crimes expert and author of Punishing Hate: Bias Crimes in American Law, testified before the House back in 1999 describing the core of this theory:

A bias crime is a crime committed as an act of prejudice. Prejudice, in this context, is not strictly a personal predilection of the perpetrator. A prejudiced person usually exhibits antipathy towards members of a group based on false stereotypical views of that group. But in order for this to be the kind of prejudice of which we speak here, this antipathy must exist in a social context, that is, it must be an animus that is shared by others in the culture and that is a recognizable social pathology within the culture.

Hate crimes are just such a social pathology, one that only a society intent on defending its ancient prejudices can ignore, and it would do as at considerable expense to its social fabric and general well-being. As Lawrence has explained elsewhere, it is normal for the law to attempt to address these pathologies, and as such the logic of bias-crime laws can be applied even to very localized pathologies, e.g., the kinds of simmering group feuds that occur within any community. If the local community chooses to pass its own bias-crime law creating a category designed to address that pathology, it should be well within its rights to do so.

On a national scale, there is a moral and ethical imperative to do so. And there is no question that the House's bias-crime law in fact addresses pathologies that have been well identified. Crimes motivated by racial, religious, ethnic, and sexual hatred have been well documented as a serious and systemic problem, and the laws punishing them harshly are also well within the normal purview of criminal law (especially since crimes are never a form of protected free speech).

This is why one of the White House's other dodges on its opposition to the bill is also quite groundless -- namely, their claim that "the bill leaves other classes, such as the elderly, the military and police officers, without similar special status." But crimes motivated by bias against the elderly, the military, or police have not been reported to occur on any kind of large scale; there is no data indicating such a trend, and there is no identifiable social pathology resulting, either. Why pass a law to combat a problem that doesn't exist?

On the other hand, it is unquestionable that the need for a federal hate-crimes bill, particularly one like this designed to emphasize federal support for local and state law enforcement, has been building for a long time. The most obvious problem, as I've detailed here and in my book Death on the Fourth of July, is the horrendous record of underenforcement of the hate crimes laws we do have on the books.

A Bureau of Justice Statistics report back in 2005 laid this out in stark terms:

The real number of hate crimes in the United States is more than 15 times higher than FBI statistics reflect, according to a stunning new government report.

Hate crime statistics published by the FBI since 1992, based on voluntary reports from law enforcement agencies around the country, have shown annual totals of about 6,000 to 10,000, depending on the year. But the new report, "Hate Crimes Reported by Victims and Police," found an average annual total of 191,000 hate crimes. That means the real level of hate crime runs between 19 and 31 times higher than the numbers that have been officially reported for almost 15 years.

"It's an astounding report," said Jack Levin, a leading hate crime expert at Northeastern University. "It's not necessarily completely accurate, but I would trust these data before I trusted the voluntary law enforcement reports to the FBI."

... The report, which inferred hate motivation from the words and symbols used by the offender, found that just 44 percent of hate crimes are reported to police. Other hate crimes don't make it into FBI statistics for an array of reasons: police may fail to record some as hate crimes; their departments may not report hate crime statistics to state officials; and those officials may not accurately report to the FBI.

According to the new report, hate crimes involve violence far more often than other crimes. The data showed 84 percent of hate crimes were violent, meaning they involved a sexual attack, robbery, assault or murder. By contrast, just 23 percent of non-hate crimes involved violence. Other studies have suggested that hate-motivated violence, especially against homosexuals, is more extreme than other violence.

The report also showed that 56 percent of hate crime victims identified race as the primary factor in the crimes they reported. Ethnicity accounted for another 29 percent of the total. Hate crimes motivated by sexual orientation were 18 percent of the total. Given that the best studies indicate about 3 percent of the American population is homosexual, this means that gays and lesbians are victimized at six times the overall rate.

The dirty secret about hate crimes is that they're part of the way we've always done things in this country. When whites wanted to engage in a campaign of racial eliminationism, it always began with crimes: a beating here, a lynching there, a church arson over there. Pretty soon the target community got the message and moved out; and if they didn't, well, then they would be driven out, and the "sundown" signs went up on the town borders.

Naturally, though, we don't talk about these things when it comes to discussing hate crimes in America today. We don't want to talk about the reality of the violence and terror that these crimes inflict on their targets and pretend that the need for the laws is built out of the same ephemera as the arguments against them. No. It's much easier to throw up paper-thin rationales and then pretend that they make sense, even as they peel and crumble.

UPDATE: TRex at Firedoglake has more.