Who needs hate-crimes laws?
Friday, June 13, 2003
Continuing a little more about hate crimes and the laws meant to combat them:
One of the most pointed critiques of hate-crimes laws comes in the form of the argument that most of these statutes are products of "identity politics" in which various aggrieved minority-interest groups have been responsible for their promulgation, thereby enshrining in law an attempt to cure social ills that might be better served in other arenas, since these laws are constitutionally problematic. The most detailed and thoughtful version of this argument is made by James B. Jacobs and Kimberly Potter in their 1998 Oxford University Press book:
Hate Crimes: Criminal Law and Identity Politics
The essence of this argument appears on page 131:
- Our concern is that rewriting criminal law to take into account the racial, religious, sexual, and other identities of offenders and victims will undermine the criminal law's potential for bolstering social solidarity. By redefining crime as a facet of intergroup conflict, hate crime laws encourage citizens to think of themselves as victimized and besieged, thereby hardening each group's sense of resentment. That in turn contributes to the balkanization of American society, not to its unification.
But Jacobs' and Potter's logic is predicated on two false premises:
-- Throughout the text, they consistently describe hate crimes laws as being designed to create special "protected groups," a focus derived solely from viewing the special-interest advocacy that often spurred these laws' passage. Moreover, they consistently describe the laws as protecting only these selected groups and not everyone in society equally.
This is simply a false characterization of the laws themselves. None of these laws specify the race or ethnicity or religion of the victims -- rather, they are focused solely on the motivations of the perpetrator. A person need not be actually gay to be the victim of a gay-bashing hate crime; he need only have been perceived as gay by someone who specifically set out to assault homosexuals. This is only logical, since the terroristic motivation of the assault is present in either case.
Moreover, the laws protect everyone equally. Majority whites are victims of bias crimes too, and every year there are over a thousand prosecutions for such cases. (Indeed, the definitive Supreme Court case, Wisconsin v. Mitchell, involved a black man accused of fomenting a hate crime against a couple of white teens.) Check the FBI statistics for yourself.
Hate-crimes laws generally have three chief categories of bias motivation: racial, ethnic and religious. Some statutes include sexual orientation, others include gender bias. It's important to keep in mind that everyone has a race, an ethnicity, a religion (or even lack thereof). Everyone has a sexual orientation and a gender. This is what makes the laws generally universal and fully in tune with the equal-protection clause.
-- Secondly, their formulation also presents a false characterization of the real purpose of hate-crime laws. These laws do not redefine crime as a mere facet of intergroup conflict -- they specifically recognize that certain crimes are in fact a direct cause of intergroup conflict, and indeed worsen the divide between us. The laws are intended to close the divide, or at least prevent it from worsening. Indeed, it is specifically the failure to enact and enforce hate crime laws throughout history (and this includes their antecedents in the filibusterred-to-death antilynching laws of the 1920s and '30s) that encourages minority citizens to "think of themselves as victimized and besieged," and there is little doubt it hardens their resentment when these crimes are treated generically.
Finally, this characterization utterly evades the core purpose of these laws, reflected in their focus on the criminal instead of the victim: Namely, they are intended to give communities faced with these kinds of crimes the tools to deal with them effectively. An approach that treats hate crimes as equal in harm to their parallel crimes is utterly inadequate for this purpose.
To illustrate this, let me tell a story.
___
Though it is part of the lexicon now, the term “hate crime” was unknown even as recently as the early 1980s. But for those who were dealing with the remnants of white-supremacist ideology and its attendant violence, no one needed such a term. Like pornography, they knew what they were looking at when they saw it.
The first sign in northern Idaho was the fliers. No one knew who was handing them out, but several came across my editor’s desk at the Sandpoint Daily Bee in the rural Panhandle in the spring of 1979, brought in by a reporter on his rounds or an ad salesman who had picked it up around town. They were crude mimeographs, and even cruder humor: An “Official Running Nigger Target,” it was labeled. It showed a cartoon silhouette of a black man with a large Afro and monstrous lips, sprinting, arms akimbo, in apparent full flight. Numbers designated different scores for different parts of the anatomy, with a relatively low score for a head shot, and the highest score for hitting his feet.
There was never a shortage of crackpots in the Idaho backwoods, and normally a sheet like that would have disappeared into the round file. But the sentiments behind it were so nakedly hateful, and the violence it condoned was disturbing. I tucked it into a special file I was keeping.
No one knew for sure who was behind the fliers, but we had a pretty good idea. Just down the road from Sandpoint, about 40 minutes’ drive south, a group of fringe dwellers from Southern California who called themselves the Church of Jesus Christ-Christian had purchased a wooded parcel near Hayden Lake, set up a compound, and began calling it the “Aryan Nations.” The church’s leader, Richard Butler, promised to be a good neighbor, but there were reports of cross burnings at the compound; and then Butler began advertising his call for other like-minded supremacists to move to northern Idaho and create what he envisioned as a “white homeland.”
This was the shabby state into which the ideology of white supremacy, once the dominant worldview of white Americans, had declined: Forced into exile in a shabby backwoods lot, shouting its defiance at the rest of the world, and vowing impotently to wreak vengeance on us. Where once Butler’s claims that African-Americans were a subhuman species bent on the destruction of whites might have been roundly applauded, now they only confirmed his status as a social pariah.
At the time, Butler’s pronouncements were generally dismissed as lunacy by those of us in the mainstream press, including his call for a “white homeland” -- after all, northern Idaho couldn’t have become much more white than it already was. But what none of us anticipated was that even though the numbers that Butler recruited were generally small, their impact on the community was dramatic. Many of the people who moved to settle in the new “white homeland” were ex-cons, recruited into white supremacy while in prison. Others were radical ideologues who were fully inclined to take to heart Butler’s urgings to engage in a “race war” -- guys like Robert Mathews, who moved to nearby Metaline Falls in northeastern Washington to be near to Butler’s church, and found work at the local mines.
And they were changing the face of the northern Idaho community. The region was historically considered among the more liberal precincts in the state, particularly compared to the Mormon-dominated southern half; mining- and timber-rich northern Idaho had a long history of labor activism dating back to the previous century, and in fact had played a key role in the development of radical labor organizations like the Industrial Workers of the World. Now, an undercurrent of reactionary sentiment latent in the landscape (the region had also been home to a number of Confederate Army veterans who settled there after the Civil War), brought to life by the Aryan Nations, began to manifest itself in ugly ways. The file I was keeping at the Daily Bee was an attempt to keep track.
At first, it cropped up in nasty but relatively harmless ways, like the “running nigger” fliers -- hateful, but hardly criminal. Then it began crossing the line:
-- A Jewish restaurateur in Hayden found his business vandalized with anti-Semitic graffiti and swastikas, as well as a sticker with the message, “Do Not Patronize This Place.”
-- A Hispanic family in Coeur d’Alene, some 15 miles south of Hayden, was terrorized by someone calling late at night and making death threats; when they refused to leave, someone tried to set fire to their trailer, then killed their dog by slashing its throat. The family packed up and left.
-- A cluster of young thugs associated with the Aryan Nations assaulted a pair of teenagers (a minority boy and a white girl) outside a bowling alley.
-- Crosses were left burning on the lawns of two area families. One of these was an all-white family who, police believe, were targeted mistakenly.
-- A Baptist church and a printing business in Coeur d’Alene were both defaced with swastikas.
The threats and intimidation came to a head in September 1982, thanks largely to one of the more troublesome hooligans attracted to northern Idaho by Butler’s church: an ex-convict named Keith Gilbert. He had moved to the region after doing time at California’s San Quentin prison for having 1,500 pounds of dynamite at his Glendale home, which he later claimed was intended to assassinate Martin Luther King at a 1965 appearance in Los Angeles. Gilbert had been a follower of Butler’s in California, but shortly after moving to Idaho they had a dispute, and Gilbert attempted to set up his own white-supremacist organization. Gilbert, who later admitted responsibility for distributing the “running nigger” targets, then began his own campaign of threats and intimidation.
His chief target was a Coeur d’Alene family headed by a white woman named Connie Fort who had been married for several years to a black man and had three mixed-race children. Gilbert began by walking up to the eldest boy and spitting on him, saying: “Your life is condemned. You shall be served in front of the devil.” Having discovered where Fort’s family lived, Gilbert began driving by the home and shouting threats and obscenities at the children. He mailed an envelope containing a death threat for “race traitors” who engaged in “miscegenation.” Another mailing contained a news clipping about the corpse of a black man found floating in Spirit Lake, shot through the head.
Police were initially hesitant to charge Gilbert, partly because Idaho law made racial slander only a misdemeanor. But as the threats escalated, he eventually was charged and convicted of misdemeanor assault, and fined $300 with a 45-day jail sentence. Gilbert merely laughed it off.
The rest of the community, however, did not. Local churches circulated petitions in support of Connie Fort’s family and managed to gather hundreds of signatures. And Fort herself decided that something had to be done about the failure of Idaho law to adequately address this kind of hateful harassment. The previous year, a coalition of church leaders, city and law-enforcement officials, and businessmen from throughout the county had already formed, calling itself the Kootenai County Human Relations Task Force. As Fort’s story gained publicity in the local press, the KCHRTF took up the task of gaining public support for changing the law. It organized town-hall meetings to discuss the issue, and found that its support was deep and broad; at a panel discussion set up by the Idaho Human Rights Commission in 1982, other participants included the Justice Department, the American Civil Liberties Union, and law-enforcement officers.
Out of those discussions, the Human Rights Commission composed legislation -- similar to a law just passed in Washington state, also largely in response to the activities emanating from the Aryan Nations -- that would make it a felony to intimidate or harass another person because of their race or religion, either with physical assault or with threatening words. The bill was introduced in the Idaho Legislature’s 1983 with considerable fanfare, and its advocates claimed the support of over a hundred voluntary organizations in the state that supported its passage.
However, the bill encountered considerable opposition among legislators from the state’s notoriously conservative southern half. Many voiced concern that the law would trample on constitutional rights to religious freedom and free speech. Others accused the sponsors of secretly supporting the United Nations genocide convention. Richard Butler testified against it: “This bill would take away sovereign, inalienable rights of white Christians,” he told legislators.
The tide slowly turned in the bill’s favor, however, as the breadth of support for it became apparent. Kootenai County Prosecutor Glen Walker -- a conservative Republican -- traveled to Boise and patiently explained to lawmakers why the law was needed, particularly as a tool for dealing with a kind of crime they all recognized had deeply corrosive consequences for their community. Walker also shepherded several compromises to the legislation, including a clause that would specify it was not intended to imply support for the United Nations.
The coup de grace, however, was delivered by Keith Gilbert himself. He created a phony “Anti Defamation League” lobby, concocted a letterhead and a nonexistent leader named “Rabbi Schechter,” and sent letters to all member of the Legislature under “Schechter’s” signature voicing full support for the bill. Gilbert assumed that such “Jewish” support would inspire legislators to oppose the measure -- but his ruse was discovered and publicized instead. Angered by his brazenness, legislators rushed to support the bill, and it wound up passing handily.
Idaho thus became the ninth state in the nation to pass what would become known as a hate-crime law. California was the first to do so, in 1978; Washington and Oregon followed suit in 1981, while Alaska, New York, Rhode Island and Pennsylvania passed similar laws in 1982. By 1998, 45 states had passed such laws.
As in Idaho, many of these states had found that even though white supremacy, culturally speaking, had been relegated to the fringes of society, its remaining adherents were every bit as willing to resort to violence to achieve their ends as they were in the days of the lynch mob. And it was also clear that the violent crimes that resulted were not ordinary assaults and murders and threats, but they had several special qualities to them. For one, they were inherently more violent, and much more likely to result in severe harm. More significantly, they clearly victimized not just the immediate sufferer, but the larger racial, ethnic or religious community to which that person belonged -- and that in many cases, that was exactly what the perpetrators intended, as a way of “putting them in their place.” This not only extended the reach of these crimes, but it made clear that they were perniciously anti-democratic, and clearly destructive in a society supposedly dedicated to racial justice and equality.
The laws were passed in Idaho not because of any agitation by special-interest minorities, but by a grass-roots demand from the communities themselves. They arose, as it were, from the kind of common-sense decency that has always been an embedded element of American law.
3:19 PM
Spotlight
What motivates terrorists?
Mark Pitcavage, who is the the ADL's director of fact-finding, also continues to operate the old Militia Watchdog listserv, which shares info about right-wing extremists (Mark in fact was the founder of the old Watchdog before the ADL hired him). He's also one of the most knowledgeable people on the planet about right-wing extremists. He recently posted this to the list, and gave me permission to reproduce it here in full. So I will:
- Brian Levin and Mark Potok have both made comments recently about some Eric Rudolph commentators who have played down or dismissed Rudolph's ideology. Some of these have been egregious, such as the person who suggested Rudolph wanted simply to be a "bomber" and didn't have any real ideology.
This situation is not limited to the Eric Rudolph incident. In the past year or so, I have noticed a distressing number of times when commentators to the media, trainers of law enforcement officers, and others have significantly downplayed the role that ideology/theology plays in motivating extremists to commit criminal acts.
Typically, there are two forms of this downplaying:
1) It was not "ideology" that motivated the person in question, but "psychology." The person in question is not really passionate about the ideology--he or she simply became involved with an ideology to feed psychological needs and those same psychological motivations were what 'really' drove the person to commit criminal acts.
2) It was not "ideology" that motivated the person in question, but rather the individual's criminal tendencies. The person was someone who *wanted* to commit crimes (murder, violence, fraud, what have you), and the ideology was merely a convenient excuse to allow the individual to act on those criminal impulses. Typically, the way this is expressed is: "If he hadn't joined X, he would have been a normal criminal."
Now, I think it is clear that people join extremist groups/movements for a variety of reasons, and many of them may be psychological. Furthermore, they may well have psychological reasons to commit criminal acts. Similarly, there may be violent people who join an extremist group because it can give them an "accepted" outlet for their violence, or con artists who join an extremist group because it allows them to get money.
However, I think it is crucial to understand that, first of all, those psychological/criminal primary motivations do not always hold true. For many who get involved in these movements, it is the ideology that is the primary motivator. For example, in the 1990s, time and time again people were getting arrested (often on very serious charges), when they had never before had a criminal record. It is very difficult to argue that a 65 year old man with no (prior) criminal record joined an extremist group in order to have an excuse to act on criminal tendencies. Sixty five years is a long enough time for those tendencies to have manifested themselves in other ways! The criminal acts occurred only *after* the person had been exposed to, and had deeply accepted, an extreme ideology.
Secondly, even when psychological and/or criminal motivations play a role, they do not remain unaffected by the ideology. Merely accepting a new ideology can change one's psyche, for example. And getting involved with an extreme ideology can greatly change prior criminal motivations that one may have had. One great example of this can be seen with the sovereign citizen movement, which routinely generates huge scams and frauds from its midst. If criminal motivations were really the dominant factor in such schemes, then when such people are caught, their rational reaction should be to "escape" with as little harm as possible--hire a lawyer, mount the best defense possible, see if you can get away with anything. However, time and time again, what we saw (and continue to see) instead is a "crash and burn" reaction. Such people tend to defend themselves, using "sovereign citizen" arguments, as well as courtroom tactics guaranteed to alienate judge and jury alike, with the result, that they "crash and burn," getting more convictions and longer sentences than would otherwise have resulted with a "normal" defense.
Elizabeth Broderick of Palmdale, California (the "lien queen"), may be a good example of this. She may well have started her bogus money order empire with greed as the primary motivator (she had previously been involved with other schemes), but by the time she came out of it, the ideology was clearly affecting her at least as much. She defended herself, used sovereign citizen arguments, managed to P*ss off pretty much everybody in the courtroom, and got a lengthy prison sentence as a result.
Or take Linda Lyon Block and George Sibley. These two people (who killed a police officer in 1993) were on *death row*, but fired their lawyers and mounted a "missing thirteenth amendment" defense. Block has been executed. Death was on the line there.
I don't think you can ever dismiss the ideology/theology, and I think that even to downplay it is a big mistake. Ideology/theology really can and does play a significant motivating factor in criminal extremism and terrorism. If we ignore that, we do so at our own peril.
1:58 PM
Spotlight
What Bush has done right
Thursday, June 12, 2003
Via Matthew Yglesias, I see that Paul Muller at Heretical Ideas has a challenge for liberals:
- So here's my challenge -- if you are a proprietor of a Democratic blog, and primarily post on how the GOP is the great evil, comment to me on one thing that the GOP has done that's good. And, if you are feeling adventurous, post something on your actual site that does the same thing. Maybe a local Congressman or Senator has done something good for the area you live in. Perhaps a bill has been supported that you agree with. Maybe you actually *gasp* like the policy someone has. Whatever it is, let's hear it.
Yglesias generally declines to join in, but I will say that one of the Bush administration's achievements is very well worth pointing out:
It has very successfully kept in check the elements within the right who would make the war on terror into a war with Islam, and who are inclined to vent their rage on anyone of Arab descent.
The Bush team has been quick to put out any fires that have cropped up in this regard. In the wake of Sept. 11, it has squelched anti-Muslim rhetoric from the likes of Jerry Falwell and Pat Robertson, and its Justice Department in fact has vigorously pursued hate crimes against people perceived to be Muslim or Arab. (Of course, Republicans in Congress continue to hold up hate-crimes legislation in the Senate that might bolster this effort, but that's another story.)
Thus, even though it has created, through the establishment of military tribunals and "enemy combatant" status, the machinery that might effect another mass internment of an ethnic population similar to the Nikkei internment of World War II, it has so far successfully resisted the kind of hysteria and scapegoating that could make such a nightmare reoccur.
I think the administration deserves a great deal of credit for this. It may have perfectly pragmatic purposes in doing so -- after all, conflating the War on Terror into a War on Islam would be disastrous militarily, especially when you consider the tenuous position of people like Pakistan's General Musharraf; besides, the Republicans have made a point of courting Arab-American votes over the past decade, and a number of prominent Arab-Americans in fact are working for this administration -- but it has clearly done the right thing, and so far done it well.
I don't have any compunction about pointing this up because (a) I think credit is due where it's earned and (b) I think it's an important position for the adminstration to take, and I'm very glad they're taking it.
Moreover, it is perhaps the lone genuine achievement by this administration in an otherwise barren wasteland of political and national disaster. There are very few other things the Bush people have done right. The remainder is a litany of incompetence, arrogance, bullying, cowardice, mendacity, and ruthlessness. This ranges from the theft of the 2000 election to the asleep-at-the-wheel routine that brought us Sept. 11, from the wholesale class warfare it has opened on the working class and poor (concomitant with the open looting of the national weal by the rich) to the clearly false pretenses under which it convinced the nation to wage war upon another sovereign nation that had not attacked us.
My dismay with the Bush administration is not based on my admitted personal dislike of both the man and his team. Had this administration shown even an ounce of competence beyond that which I've mentioned, I would be more than willing to acknowledge it. I might not be happy about it, but I value competence above politics when it comes to public servants.
Instead, we've been facing one national disaster after another with this man at the helm. He is himself a disaster unparalleled in the annals of the presidency. He must go.
11:25 AM
Spotlight
Media mavens vs. reality
Wednesday, June 11, 2003
Bob Somerby at the (incomparable) Daily Howler lays into Margaret Carlson, who truly has it coming:
- Carlson displays a rare ability to rearrange well-known facts. In one of the ugliest parts of her reprehensible “book,” she struggles and strains to help us see how disgraceful those Clintons really are:
- CARLSON (page 157): With the Clintons, transactions trump relationships. Forget that and you end up in prison (Hillary’s law partner and deputy attorney general, Webster Hubbell, whom the two never called once he went off to jail), [or] dead (Hillary law partner Vince Foster, who committed suicide because he couldn’t play the “blood sport” of the White House)…
It’s hard find words for such ugly, evil writing. Did the Clintons ever call Webster Hubbell? We don’t know, but it was hardly their fault that he wound up in jail. As you know—as Carlson’s readers don’t—Hubbell pleaded guilty to defrauding the Rose Law Firm of at least $390,000. Since Mrs. Clinton was a partner at the firm, some of that money belonged to the Clintons! Carlson leaves that out of her piece; instead, she makes it sound like it was the Clintons’ fault that Hubbell landed in jail. Then they cruelly abandoned him. Regarding the Foster matter, no words can suffice. Foster didn’t use the term “blood sport;” that is another of Carlson’s embellishments. And he hardly attributed the ugly conduct described in his suicide note to Bill and Hillary Clinton.
What really struck about me about that passage from Carlson was how it turned reality on its head. In the real world, there is no evidence that transactions trumped relationships for the Clintons; such evidence-free pronouncements smack of projection. But we have grown accustomed over the past eight years to such sanctimonious Beltway froppery. Indeed, it was this same mentality -- embodied by Carlson -- which gave free rein to so much right-wing hatred and viciousness that anyone who dared to get close to the Clintons made themselves likely victims of the collateral damage.
The Clintons' enemies hatred knows no bounds, and they will even now stop at nothing to get to them. Forget that, and you wind up like Web Hubbell and Vince Foster and a hundred others.
3:29 PM
Spotlight
Abetting the terrorists
Tuesday, June 10, 2003
Kynn Bartlett at Shock and Awe has a terrific post about John Noster, the right-wing Los Angeleno who authorities believe was planning a massive terrorist attack of some kind -- and his right-wing enablers, like a writer for David Horowitz's Frontpage Magazine who knew him well:
- Gosh, Chris, it's really amazing that one of your churchmates, someone who hung out with you and other right wingers, would turn out to be someone who might plot to do nasty things to people.
After all, it's not like you guys foster and encourage such violence through your obsessively hateful rhetoric or anything, right?
Chris, you see, is the kind of guy who writes columns with titles such as Islamofascism, Inc. and France Surrenders. "Predicably, albeit belatedly, the cheese-eating surrender monkeys in Paris have, well, surrendered," starts the latter column.
Kynn says it all. Go read it.
10:40 AM
Spotlight
Hate crimes: a response
Hate crimes, or at least a seminal form of them, have been with us since nearly the founding of this country. They run the gamut from atrocities against Native Americans to the universe of abuses that surrounded slavery, to the nightriders of the Ku Klux Klan to the "lynching era" of 1880-1930.
The laws against, them, however, are really quite new. They did not exist until the early 1980s, when a number of states began trying to grapple with the phenomenon. And for most Americans, they still are somewhat alien; in many regards they feel like any number of other "feel good" laws passed as sops to various minorities seeking to bolster their civil rights. Moreover, there is a dark side to them: Do they create thought crimes? Are they actually a threat to our civil liberties?
Jeralyn Merritt at TalkLeft comes down on this side of the debate, and evidently has for at least awhile, having chaired a committee on the issues for the National Association of Criminal Defense Lawyers, and subsequently authoring an article making these arguments. She recently posted a condensed version that made a cogent and persuasive response to the posts by Matt Singer and Matthew Yglsesias favoring the laws.
I should note that Jeralyn is one of the rare bloggers with whom I usually agree with nearly everything she writes. But in this case, I a firmly disagree with her position in nearly every detail. (I've mentioned that my next book is about hate crimes in America -- the reality, not the theory -- and much of what follows forms the core of my basic thesis.)
Let me address Jeralyn's points one by one:
- The federal judiciary released a statement recently expressing constitutional and practical concerns about hate crime laws. The underlying criminal activity of a hate crime, such as robbery, assault, or murder, traditionally falls under state jurisdiction. The concern is that by passing federal hate crime laws, there will be a mass federalization of crime which should and could be adequately handled at the state level instead of overburdening our already overwhelmed federal courts.
This concern is not very well grounded. Neither the current federal hate-crimes laws, nor the new version currently making its way in the Senate, step into state jurisdictions in any form.
A bit of explanation first: Hate crimes have little to do with "hate," particularly in the legal sense. The correct term for them is "bias-motivated crimes" or "bias crimes." They only exist on the books as a different category of crimes with which we already are well familiar (murder, assault, threatening, intimidation, vandalism, etc.) -- that is, a hate crime always has a well-established "parallel" crime underlying it, with the added layer of motivation by bias (racial, ethnic, etc.).
The federal hate-crimes laws either on the books or proposed so far restrict themselves to sentence enhancements for federal crimes committed with a bias motivation. In this respect, they closely resemble federal anti-terrorism laws, at least structurally; these laws, too, deal only with federal crimes committed with a terroristic intent.
The current federal law, passed in 1995, in fact is extremely limited (and nearly useless) because it restricts federal law enforcers from filing a hate-crimes charge unless the crime is committed on federal property or as a disruption of a federal activity (including voting). The new version, currently making its way forward in the Senate, largely eliminates this limitation, but is even more explicit about maintaining state and local prerogatives, and restricting the federal government primarily to the role of financier, coordinator and helper. Here is the 2001 version of the same bill, which goes by the title, "Local Law Enforcement Enhancement Act."
Hate-crimes laws do raise important questions about federalism -- but then, all federal criminal legislation raises them. This includes their antecedents in the Reconstruction (particularly the Civil Rights Act of 1866 and the Enforcement Act of 1870) and in the anti-lynching legislation of the '20s and '30s. And of course, the federal hate-crimes laws on the books are very circumspect and limited in scope, largely for just this reason.
Now, while Jeralyn tried to limit her arguments to the matter of federal hate crimes, it must be observed that the bulk of the remainder of her arguments militate against hate-crimes laws generally, and thus against the state and local laws as well. Let's look:
- There is no evidence to suggest that hate crime laws will have a deterrent effect upon hate crimes.
There's very little evidence, actually, that laws against murder have a deterrent effect on would-be killers, either. This does not mean we should not have laws against murder. Indeed, deterrence is often the weakest argument for or against any kind of law that affects punishment.
Hate-crimes laws, as we shall see, exist for a whole panoply of sound reasons, the main one being that they provide communities with the tools to confront these crimes, which are clearly different in nature and intent than their parallel crimes.
- In many cases, it is very difficult to prove a hateful motivation for the criminal act. The decision to charge a hate crime as such should not be left to law enforcement. The F.B.I., for example, includes gestures and other body language in its hate crime statistics. Prosecutions to date in some cases have been based upon bigoted statements made several years before the act in question.
There's no doubt that the main point here is true: Establishing a bias motivation is unquestionably the most difficult aspect of prosecuting these cases. Indeed, the bar is extremely high, since proving this motivation requires relying on both previous statements or associations and with establishing the perpetrator's state of mind, or mens rea, at the time of the act.
Moreover, most prosecutors are reluctant to file such charges for precisely these reasons. As such, it is clear that most hate-crimes prosecutions only occur when the evidence is clear and substantial. In other words, the well-established structure of the criminal courts provides the strongest insurance against abuse or questionable prosecutions. At times this barrier may fail, but not often. This is frankly no different than in any other area of criminal law.
Finally, it is difficult to ascertain what Jeralyn means by suggesting that the decision to prosecute these crimes should not be left to law enforcement. Is she arguing that prosecutors -- who certainly are part of the law-enforcement apparatus, and almost invariably are the officials filing the charges -- should not make this choice? If not they, then who?
- There are already sufficient criminal laws and penalties on the books to punish hate crimes. We should punish the act, not the thought process of the actor. If these acts are inadequately prosecuted and punished when the victim is of a minority or disadvantaged class, the answer lies in increased education and sensitization of law enforcement and the judiciary.
These are the most serious of the points that Jeralyn raises, and there are two components of it that need addressing. However, I'll address the "thought crimes" argument when it is raised again below.
First is the suggestion that current laws against the parallel crimes are adequate to the task and that hate-crimes laws intrude unnecessarily on this ground. Indeed, this identical argument was raised in the 1920s and '30s by opponents of the anti-lynching legislation that was the NAACP's raison d'etre during its early years.
Nowadays, it is proffered by such hate-crimes-law opponents as the Traditional Values Coalition and the Family Forum (who fear new laws that include sexual orientation among the categories of bias). A clearly specious version of it is the common Republican meme, "All crimes are hate crimes" -- which, fortunately, does not appear in Jeralyn's arguments, but which can be heard frequently from the likes of George W. Bush and Orrin Hatch.
It should go without saying that in fact not all crimes are alike in nature. Indeed, not even all homicides are alike; they range from second-degree manslaughter to first-degree murder. The difference among them largely stems from the circumstances of the act and from the perpetrator's mens rea. Intent and motive can be the difference between a five-year sentence and the electric chair.
Are hate crimes truly different from their parallel crimes? Quantifiably and qualitatively, the answer is yes.
The first and most clear aspect of this difference lies in the breadth of the crimes' effects. Hate crimes attack not only the immediate victim, but the target community -- Jews, blacks, gays -- to which the victim belongs. Their purpose today, just as it was in the lynching era, is to terrorize and politically oppress the target community. They resemble anti-terrorism laws in this respect as well. As Matt Welch puts it in the post that started this debate:
- So, in effect, you add more punishment to those who perpetrate hate crimes because the crime targets and effects more than the immediate victim. It creates a culture of fear to which society must respond.
But this is only one aspect of how different hate crimes are from their parallel crimes. There are several more, and they are substantial. Frederick Lawrence, associate dean of the Boston University Law School, describes these differences in detail in his landmark text, Punishing Hate: Bias Crimes Under American Law (1999, Harvard University Press), which is a truly definitive text on hate-crimes laws (and from which I openly admit I draw many of my arguments, partly because I've explored these issues thoroughly through other avenues -- at one time I too was skeptical of hate-crimes laws' efficacy -- and found that Lawrence was correct in most respects, indeed in nearly every detail):
- Bias crimes are far more likely to be violent than are other crimes. This is true on two levels. In the first place, crimes committed with bias motivation are dramatically more likely to involve physical assaults than do crimes generally, One study conducted in Boston found that approximately half of all bias crimes reported to the police involved assaults. This is far above the average for crimes generally, where we find that only 7 percent of all crimes reported to the police involve assaults. Secondly, bias-motivated crimes are far more likely than other assaults to involve serious physical injury to the victim. The Boston study, for example, found that nearly 75 percent of the victims of bias-motivated assaults suffered physical injury, whereas the national average for assaults generally is closer to 30 percent. …
Bias crimes are may also be distinguished from parallel crimes on the basis of their particular emotional and psychological impact on the victim. The victim of a bias crime is not attacked for a random reason -- as the person injured during a shooting spree in a public place -- nor is he attacked for an impersonal reason, as is the victim of a mugging for money. He is attacked for a specific, personal reason: his race [or religion, or sexual preference]. Moreover, the bias crime victim cannot reasonably minimize the risk of future attacks because he is unable to change the characteristics that made him a victim.
A bias crime thus attacks the victim not only physically but at the very core of his identity. It is an attack from which there is no escape. It is one thing to avoid the park at night because it is not safe. It is quite another to avoid certain neighborhoods because of one's race. This heightened sense of vulnerability caused by bias crimes is beyond that normally found in crime victims. Bias-crime victims have been compared to rape victims in that the physical harm associated with the crime, however great, is less significant than the powerful accompanying sense of violation. The victims of bias crimes thus tend to experience psychological symptoms such as depression or withdrawal, as well as anxiety, feelings of helplessness, and a profound sense of isolation. …
… Bias crimes cause an even broader injury to the general community. Such crimes violate not only society's general concern for the security of its members and their property but also the shared value of equality among its citizens and racial and religious harmony in a heterogeneous society. A bias crime is therefore a profound violation of the egalitarian ideal and the anti-discrimination principle that have become fundamental not only to the American legal system but to American culture as well.
Not only are bias crimes substantially different in nature from their parallel crimes, there is no question that they cause substantially greater harm, so a harsher punishment is fully warranted.
- Since 41 states already have hate crime laws, expanding federal laws in this area could result in double prosecution in many instances, with the federal government following up in cases where they simply do not like the results in state trials.
This is not only unlikely, under both the current and proposed federal laws, it simply cannot happen. (See the response to the first point above.) The only time that the federal government has room to move in and prosecute is if state and local authorities simply choose not to act.
- The gender provision of the proposed federal expansion bill could make run-of-the-mill rape and domestic violence incidents “federal hate crimes.” The disability provision could result in basic crimes against disabled victims -- such as mugging a person in a wheelchair -- being prosecuted as “federal hate crimes.” The result risked is a trivialization of the federal criminal sanction.
This is simply so unlikely to happen as to border on being simply false. Establishing a bias motivation -- which is the core of filing a hate-crimes charge -- is, as already noted, an extremely high bar that requires more than simply a few words uttered during or before the commission of the crime. Prosecutors typically must prove several aggravating factors; they must demonstrate a pattern of behavior consistent with the bias, as well as a willingness or desire to use extreme or criminal means to act upon it. A simple mugging or rape does not meet this standard; but a gang of youths who systematically attack handicapped people over the course of a night, or a rapist who delights in terrorizing not just his victims but the community with misogynist taunts -- these do.
However, it is always possible that an out-of-control prosecutor (Kenneth Starr, perhaps?) could attempt such a case. My experience in federal courts, however, is that neither the juries nor the judges will often countenance that kind of behavior. I have heard of such flimsy cases occasionally being tried -- and many more in other areas of criminal law as well -- but fortunately, they largely end in acquittals. But this is a problem with the court system, not with the law itself.
- Thought is the core value of the First Amendment’s freedom of speech clause. It is absolutely protected and any attempt to regulate it cannot be tolerated.
Do hate-crimes laws create thought crimes? The issue has certainly been addressed in the courts, notably in the definitive Supreme Court case, Wisconsin v. Mitchell:
- Mitchell argues [via the First Amendment] that the Wisconsin penalty-enhancement statute is invalid because it punishes the defendant's discriminatory motive, or reason, for acting. But motive plays the same role under the Wisconsin statute as it does under federal and state antidiscrimination laws, which we have previously upheld against constitutional challenge. … Title VII, of the Civil Rights Act of 1964, for example, makes it unlawful for an employer to discriminate against an employee "because of such individual's race, color, religion, sex, or national origin." … In Hishon, we rejected the argument that Title VII infringed employers' First Amendment rights. And more recently, in R.A.V. v. St. Paul, 505 U.S. at 389-390, we cited Title VII (as well as 18 U.S.C. 242 and 42 U.S.C. 1981 and 1982) as an example of a permissible content-neutral regulation of conduct.
Nothing in our decision last Term in R.A.V. compels a different result here. That case involved a First Amendment challenge to a municipal ordinance prohibiting the use of "`fighting words' that insult, or provoke violence, `on the basis of race, color, creed, religion or gender.'" … But whereas the ordinance struck down in R.A.V. was explicitly directed at expression (i.e., "speech" or "messages"), … the statute in this case is aimed at conduct unprotected by the First Amendment.
Moreover, the Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thought [508 U.S. 476, 488] to inflict greater individual and societal harm. For example, according to the State and its amici, bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest. … The State's desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders' beliefs or biases. As Blackstone said long ago, "it is but reasonable that, among crimes of different natures, those should be most severely punished which are the most destructive of the public safety and happiness."
Of course, this is William Rehnquist, but the ruling was unanimous. Nonetheless, I think Matt Singer puts more or less the same argument much more elegantly in his first post on the matter:
- [T]he real answer is that hate crimes laws don't punish individuals for their thoughts. They punish individuals for acting on their thoughts in unacceptable ways, by targeting a community for violence.
Frankly, I've always found the argument that these laws are "thought crimes" to be a little creepy, since it is echoed in the claims of the Christian Right that hate-crimes laws that include sexual orientation are an attempt to impinge upon their freedom of speech. But gay-bashing is no more a free-speech right than is lynching or even, say, assassinating the president. Political thought may motivate all of them, but that doesn't mean the Constitution protects any of them.
- In many cases, enhanced penalties are not even possible. In most states, the penalty for murder is life in prison, and in many, the death penalty is already available.
This is both true and untrue. It is certainly true that at the upper end of the criminal spectrum -- particularly with murder -- there is very little sentence enhancement to be obtained by trying the case under hate-crimes laws. Indeed, because the bar is so high on those laws, it is extremely rare to see a prosecutor even attempt it, especially if the evidence related to the parallel crime is overwhelming.
The most prominent example of this was the Jasper case -- James Byrd's killers were not tried under a hate-crimes law, but rather under Texas' murder law. (Because it was clearly a hate crime, the federal government was able to chip in and assist the state prosecutors who were handling the case. This is the reality of how hate-crimes laws work vis a vis the federalism issue.) However, it's worth recalling that Buford Furrow, the fellow who shot up the Jewish synagogue in Los Angeles three years ago, in fact faced both local and federal hate-crimes charges, even though his crimes neared the upper end of the spectrum.
But it is simply not true that these constitute "many" cases. In fact, murder is probably the least prosecuted of all hate-crimes charges. There are annually only a tiny handful of such cases at best. The vast bulk of hate-crimes charges involve assaults, intimidation, property crimes and vandalism.
- Granting increased powers of investigation to federal officials over our thought processes to prove bias and prejudice will become exceedingly Orwellian. Do we want to authorize the subpoena of book store records so that the fact that our spouse owns, say, a copy of The Turner Diaries can be used against him or her to prove the requisite mental intent for a hate crime?
Well, I'd like to think most of us would oppose such a system were it being proposed in any fashion. However, neither current nor proposed hate-crimes laws would authorize any such invasions of our privacy. All evidence in these cases must be gathered according to the standards of any criminal prosecution.
- Do we want to support laws that will increase the investigator’s search and seizure powers into the sanctity of our houses, property and personal effects, which is guaranteed to us by the Fourth Amendment to the Constitution?
This final, seemingly rhetorical question more or less repeats the same issues raised in the point previous -- and warrants the same response.
I should make it clear that I believe there are many problems with hate-crimes laws in America. The landscape is currently littered with a hodgepodge of state laws that are wildly inconsistent both in their constitutionality and their efficacy; Washington state's "malicious harassment" statute, for instance, is nearly useless and might not pass constitutional muster anyway.
And the federal statutes are currently so limited as to be useless as well. Consider, for instance, that the Justice Department has charted some 300 hate-crimes cases being either investigated or prosecuted related to anti-Muslim bias after the events of Sept. 11. Yet fewer than 10 of these so far have been charged under the 1995 federal hate-crimes law.
The most significant problem, however, is that prosecutions under these laws is wildly inconsistent and often unevenly applied. What is becoming increasingly apparent, as hate-crimes statistics are compiled, is that in rural America, hate-crimes laws go virtually unenforced -- not just by prosecutors, but by police. Minorities as a result are extremely vulnerable in these areas, and the problem, I believe, provides significant fuel for the fires of racial mistrust.
Hate-crimes laws in a sense were an unfunded mandate: Nearly everyone (41 states) passed the laws, but then failed to ensure that law-enforcement officials were given the tools to enforce them. Most of this comes down to education: Teaching LEOs how to identify hate crimes accurately and differentiate them from ordinary crimes; how to deal with the victims; and how to gather evidence. Similarly, local prosecutors, too, need to be better educated on these issues, particularly on what comprises these crimes and why they are important to pursue.
[For more reading on this point, see the Justice Research and Statistics Association's 2000 report, Improving the Quality and Accuracy of Hate Crime Reporting, as well as the Southern Poverty Law Center's damning 2002 follow-up, "Discounting Hate: Ten years after federal officials began compiling national hate crime statistics the numbers don’t add up".]
In the final analysis, all logic notwithstanding, I have to draw on my personal experience with hate crimes, their perpetrators, and their victims -- which includes the communities where they take place. And what my experience has told me is that hate-crimes laws are really about something that draws on Americans' sense of decency and fair play.
The old antilynching laws from which hate-crimes laws are descended were never approved, mostly because of the vehement opposition of the Deep South (whose senators three different times, over a 15-year period, filibustered the various versions of the legislation after it had passed the House and was headed for Senate approval). But the spirit that drove them has remained alive and resurfaced in more congenial times -- and it is a spirit, I believe, that runs deep in the American grain.
I think Fred Lawrence sums it up best in Punishing Hate [p. 169]:
- Society's most cherished values will be reflected in the criminal law by applying the harshest penalties to those crimes that violate these values. There will certainly be lesser penalties for those crimes that in some respects are similar but do not violate these values. The hierarchy of societal values involved in criminal conduct will thus be reflected by the lesser crime's status as a lesser offense included within the more serious crime.
The enshrinement of racial harmony and equality among our highest values not only calls for independent punishment of racially motivated violence as a bias crime and not merely as a parallel crime; it also calls for enhanced punishment of bias crimes over parallel crimes. If bias crimes are not punished more harshly than parallel crimes, the implicit message expressed by the criminal justice system is that racial harmony and equality are not among the highest values in our society. If a racially motivated assault is punished identically to a parallel assault, the racial motivation of the bias crime is rendered largely irrelevant and thus not part of that which is condemned. The individual victim, the target community, and indeed the society at large thus suffer the twin insults akin to those suffered by the narrator of Ralph Ellison's Invisible Man. Not only has the crime itself occurred, but the underlying hatred of the crime is invisible to the eyes of the legal system. The punishment of bias crimes … therefore, is necessary for the full expression of commitment to American values of equality of treatment and opportunity.
Hate-crimes laws are indeed relatively new laws. But they represent something that I think is a long thread running through our history, something many of us almost instinctively understand -- that is, the ethical imperative to stand up against the bullies and the thugs and the nightriders, because their whole purpose is to terrorize, oppress and disenfranchise the people they deem different or "not American."
I witnessed this decency -- the only possible antidote to the obscenity preceded it -- playing out firsthand a couple of years ago, and I'll be writing about it this summer in Death on the Fourth of July (scheduled for publication in 2004). Please stay tuned.
12:37 AM
Spotlight
How about 'Christianism'?
Sunday, June 08, 2003
Tristero has some further thoughts on the matter of using false nomenclatures to describe radical terrorists like Eric Rudolph and Osama bin Laden:
- To oversimplify, Islam is the religion, Islamism is the political movement inspired by the religion. A closer analogy seems to be that Islamism is to Islam as fundamentalism of the Pat Robertson ilk is to Christianity.
...
In an analogy to Islamism, I would propose the term "Christianism" to describe a political ideology inspired by Christianity that advocates the replacement of a secular government with one that is profoundly informed by a self-styled "literal" interpretation of the Bible. By this definition, Rudolph is perhaps best described as a radical "Christianist," a man inspired by Christianity to effect social change through violence.
"Christianism" is without a doubt an ugly neologism. However, it is a mistake to describe as "Christian" people and groups like Robertson, Falwell, Christian Identity, and those who are even more radical in their mission to transform the US into an explicitly fundamentalist "christian" state. This confuses Christianity, a religious belief, with a purely secular agenda. Furtheremore, it is highly misleading to ignore the hijacking of Christianity and its symbols by the Rudolphs of the world simply by repressing any reference to their Christian inspirations and calling them "anti-abortion terrorists" or some similar name.
Go read the whole thing (as well as the rest of the blog, which has been very thoughtful this week).
6:51 PM
Spotlight
Newspeak of the Week
"The fairest tax cuts are those that favor one side."
I deduced this week's Newspeak from a meme that's being promoted by Republicans the past couple of weeks. The important examples are Tom DeLay and Robert Novak, though I swear I've heard it spoken by nearly every conservative mouthpiece who's been on TV talking about the tax cuts.
It goes like this:
"Tax cuts should be aimed at the people who pay taxes."
Here's the ensuing logic:
This is because the only people who count are those who pay taxes.
And if you pay lots of taxes, then you count more.
Thus, some Americans are more equal than others.
So when Ari Fleischer says, "This certainly does deliver tax relief to the people who pay income taxes," he means something other than what it sounds like he's saying. (Imagine that!)
At any rate, have you noticed that no one ever talks about "tax burdens" anymore? That's because they are the inconvenient flaw in this kind of "logic."
What these rich Republicans conveniently neglect to factor into their scenario is the fact that for someone with three kids earning $20,000 a year, the $1200 tax cut that's now been forwarded to the House means the difference between buying shoes for their kids or not. For someone earning $200,000 (or $2 million) a year, it's the difference between the condo with the view and the one without.
In other words, trying to ameliorate the difference in tax burdens is really about basic values of fair play and decency.
Not that Tom DeLay would be familiar with such concepts.
4:21 PM
Spotlight
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