Should we repeal hate-crimes laws?
Friday, January 28, 2005
That's the radical argument proposed last week by my former colleagues at the Missoulian, where I was a staff writer and copy editor from 1985-87.
The paper ran an editorial (its official position) last week proposing abolishing Montana's hate-crime law rather than expanding it to include sexual orientation, gender, and handicap as categories of bias:
- Do you suppose someone beaten bloody by a complete stranger feels less victimized than, say, a naturalized citizen who is beaten bloody by a complete stranger?
Neither do we.
Should it be less of a crime to murder a person of color than a white person? Of course not. Then can you explain why, under Montana law, it's a worse crime to murder a person of color than it is to murder some races than it is others? Neither can we.
Don't think the line in the Montana Constitution that guarantees "No person shall be denied the equal protection of the laws" means what it says - that we're all equal in the eyes of the law?
So do we.
Montana legislators once again are debating expanding the state's "hate crime" statute. As it now reads, the law allows judges to impose tougher sentences on criminals who victimize people based on race, creed, religion, color and national origin. Now lawmakers are talking about adding gender, disability and sexual orientation to the list of special victims against whom crimes are to be considered worse than the crimes committed against other Montanans.
... All of the offenses covered by the hate-crime statute already are against the law. If that doesn't deter offenders, making them against two laws won't either. This is feel-good legislation that, because it reneges on the constitutional guarantee of equal protection, shouldn't make anyone feel very good.
Here is my response, which I sent today to the paper's editorial page editor and its editor, both of them old friends:
- I have to admit I was somewhat astonished to read the Missoulian's attack on hate-crime laws in its Jan. 20 editorial. It wasn't so much that my former colleagues would adopt such a right-wing position; nothing surprises me much anymore in that regard. What astonished me was that they could publish something so rife with misinformation, steeped in a fundamental misunderstanding of how these laws work. From start to finish, this editorial gets it wrong. It was disappointing work, for more than just journalistic reasons.
The editorial essentially argues from two key positions: that it is somehow inappropriate to apply different sentences to crimes with identical outcomes but different motivations; and that hate-crime statutes create protected "classes" of victims who are treated differently than others. Both are simply wrong.
First: The principle of proportionality in sentencing is a fundamental aspect of criminal law. Society has always chosen to punish crimes more or less harshly according to the culpability of the perpetrator, particularly the level of harm he inflicts. This is why, in the case of the death of another person, someone may face charges ranging from first-degree murder to third-degree manslaughter.
Take, for instance, the case of an elderly woman smothered in her sleep. If the perpetrator is her nephew eager to collect on his inheritance, then he is likely to face first-degree murder charges and a possible death penalty. If it is a begrieved husband carrying out the wishes of a dying Alzheimer's victim, then prosecutorial discretion comes into play. Which do you think is more worthy of a harsh sentence?
The principle responsible for the difference here is mens rea, or the state of mind of the accused. Mens rea involves both intent and motive. Harsher sentences traditionally have been assigned to crimes committed with intentions and motivations considered more harmful to society at large.
Now, you may ask, are hate crimes more harmful than the crimes for which, as the editorial points out, there are already laws on the books? Well, ask yourself this: Is a swastika painted on a synagogue the same thing as graffiti scrawled on a downtown wall? Is an assault in which the perpetrators sought out gay or black people to send a "message" the same thing as a bar fight?
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. The laws against them resemble anti-terrorism laws (which, it must be noted, are also predicated on enhancing the sentence based on the motivation of the perpetrator) in this respect as well.
But this is only one aspect of how different hate crimes are from their parallel crimes. There are several more, and they are substantial. Bias crimes are far more likely to be violent than are other crimes. They also may be distinguished by their extraordinary impact on the victim. As bias-crimes expert Frederick Lawrence notes, "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."
Finally, bias crimes cause an even broader injury to the general community, both local and national. They create racial distrust and misunderstanding within the immediate communities where they occur, and their occurrence can cast a shadow over an entire community's reputation. (Just ask folks in Jasper, Texas.) Perhaps just as important, they violate basic principles of equality of opportunity and freedom of association by threatening and intimidating targeted segments of society, and widen the not-insignificant racial divide in this country.
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.
Second: Hate-crime statutes are neither written to protect specific classes of persons from assault nor to enhance the charges simply when a person from a "protected class" is the victim of a crime. We don't have laws that create stiffer time if you simply assault a black or a Jew or a gay person. The laws don't even specify races or religions. Such laws would be in clear violation of basic constitutional principles, including the equal-protection clause.
In fact, the actual class status of a victim is almost secondary to the decision whether or to file a hate-crimes charge or not. The primary concern is the motivation of the perpetrator. All of these laws are written to punish people more severely for committing a crime committed with a bias motivation.
Traditionally, all states have included three categories of bias: race, religion, and ethnicity. (In Montana's case, the categories are: "race, creed, religion, color, national origin, or involvement in civil rights or human rights activities.") Some states have included other categories, most notably sexual orientation.
Now, think about what this means: Everyone has a race. Everyone has a creed. Everyone has beliefs about religion. Everyone has an ethnic origin, and for that matter a sexual orientation. As such, the laws are written to protect everyone equally from criminals who select them intentionally because of their racial, ethnic, religious, or sexual identity. There are no "protected classes" or "special victims" per se, only prosecutable motives.
This is why someone who assaults a Sikh under the mistaken belief he is Muslim, or a straight man believing he is gay, may still be charged with a hate crime. It also explains why, if you look at annual FBI statistics for hate crimes, you'll see that nearly a thousand black-on-white hate crimes, and several hundred anti-Christian hate crimes, are reported (and most of them prosecuted) annually. The law is written to protect everyone equally.
Now, the editorial asks an important question: "How are we to prevent hate crimes, then?" But it poses this as a matter of deterrence rather than a matter of proportionality in the law: "All of the offenses covered by the hate-crime statute already are against the law. If that doesn't deter offenders, making them against two laws won't either." The same logic (or lack thereof) could apply to anti-terrorism laws as well.
In reality, deterrence has always been a secondary factor when it comes to determining the worth of a law. There's very little evidence, for instance, 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.
Rather, there is an expressive value in the law at work here: that is, the law expresses our core community values. We punish murder harshly because, as a society, we wish to express our harshest condemnation for such acts. We punish other violent crimes on a scale that reflects, similarly, the harm they inflict upon the community.
Preventing hate crimes in the end comes down to the community and its recognition of the real harm they inflict, well over and above their parallel crimes. The laws alone, it must be said, are half-measures at best. If a community takes hate crimes seriously, and confronts them in a meaningful fashion that uses the law simply as a starting point -- a line drawn in the sand, as it were -- then it has a chance to make a real difference.
Actually preventing crimes, as always, is hard and often complex work; there are no panaceas when it comes to hate crimes. But a good place to start is understanding the mindset of the people motivated to commit them.
Typically, we're talking about a young male age 16-20 who has both a strong sense of racial identity and a persecution complex, perhaps even an antisocial personality disorder. He is most likely a broadly accepted member of his community (only about 8 percent of all bias crimes are committed by members of so-called hate groups) with some likelihood of previous police contact.
Most are so-called "reactive" offenders: that is, they react against what they perceive as an "invasion" of their community by "outsiders," often spontaneously. What's remarkable about the crimes is their real viciousness, particularly in the case of gay-bashing, in which an overkill of violence is the norm.
But many if not most hate-crime offenders refuse, even after incarceration, to admit that what they did was morally wrong. This is because they believe they are acting on the unspoken wishes of their previously homogeneous community, and thus taking action on a moral plane all their own.
This is why it's important for communities to stand up and be counted when hate crimes occur in their midst. Making public their utter condemnation of such acts sends an important message to the would-be perpetrators: the community does not condone violence to expel outsiders. Using the stiff arm of the law to back that message up is essential, especially when the need is so clear.
Conversely, pretending that a swastika on a synagogue is just another case of vandalism, or treating (especially in law enforcement terms) a "fag bashing" as just another bar fight, sends quite another message, one that in the mind of a hate-crime perpetrator equates with approval. A slap on the wrist is too often seen as a pat on the back; equanimity as forbearance.
The work of preventing hate crimes requires having an involved community that stands up publicly, not just in the law, against them. It entails confronting and publicizing them when they occur; it entails taking them seriously on the part of law enforcement officers and prosecutors; it entails an engaged faith and civic community that works on the grass-roots level to reduce the conditions that encourage hate crimes. These especially involve changing the racial attitudes of young people well before they turn to scapegoating minorities.
All of this requires a similarly engaged and informed, as well as informative, press that also takes hate crimes seriously and helps lead the charge on behalf of its community's long-term self-interest. Unfortunately, the Missoulian seems intent on charging in the other direction.
I have no idea whether they'll run this. Steve Woodruff, the edit-page editor and author of the editorial, tells me they're planning to prioritize local input, which I (as an old edit-page editor myself) well understand. So this may be the only place you read this.
That's a no-no now
Thursday, January 27, 2005
Apparently, it's no longer just a matter of bad taste to announce your dislike of President Bush.
In Colorado, a woman was threatened with arrest by a Denver police sergeant for sporting a bumper sticker on her car that read, "Fuck Bush":
- About 11 a.m., Shasta Bates, 26, was standing in the shopping center store in the 800 block of South Monaco Parkway when a man walked in and started arguing with her about a bumper sticker on the back of her truck that had "F--- Bush" in white letters on a black background.
"He was saying it was very sick and wrong and you shouldn't be doing that," Bates said. "He was very offended by it. I said, 'You didn't have to take it so personally.' "
The two argued for a few minutes, and then the man walked out of the store and stood behind Bates' truck. A few minutes later, the man flagged down police Sgt. Michael Karasek, who was patrolling the area.
Rocky Mountain News reporter Katie Kerwin McCrimmon, who happened to be at the store at the time, walked up to the two and asked what was going on.
The man pointed the bumper sticker out to McCrimmon, and then Karasek told her that it was illegal because it was profane, McCrimmon said.
Reached late Monday, City Attorney Cole Finnegan said he didn't believe there were any city ordinances against displaying a profane bumper sticker.
Karasek then walked into the store and confronted Bates.
"He said, 'You need to take off those stickers because it's profanity and it's against the law to have profanity on your truck,' " Bates said. "Then he said, 'If you ever show up here again, I'm going to make you take those stickers off and arrest you. Never come back into that area.' "
McCrimmon, who had followed the officer into the store, said Karasek wrote down the woman's license-plate number and then told her: "You take those bumper stickers off or I will come and find you and I will arrest you."
Next they'll be writing tickets for leaving your Kerry/Edwards sticker on your car ...
[Hat tip to Brad Hill and Grand Moff Texan.]
The Nazi next door
I suppose you could file this under Bobo's World (from the Los Angeles Times):
- The parent of a high school football player who invited teammates over to his house for weightlifting sessions allegedly tried to recruit the teens into a heavily armed white-supremacist group, Riverside County authorities announced Tuesday.
The parent, Howard Marshall of Winchester, was one of 19 alleged white supremacists arrested in November on suspicion of gun and drug violations, news that stunned school officials and parents in the rural communities near Hemet and Menifee in the southwest part of the county.
... Doyle said the investigation, joined by the FBI, was triggered by an allegation in September that Marshall, 44, had given steroids to his son and at least one other player at Paloma Valley High School in Menifee during the 2003 season.
When authorities searched the homes of Marshall and his step-brother in Menifee, they recovered 90 automatic and semiautomatic rifles and pistols, thousands of rounds of ammunition, body armor and drugs, they said. They also said they found German Nazi war helmets and boots and Nazi flags.
"Sixty years and one day removed from the discovery of Auschwitz, I'm amazed we're still fighting this garbage in our country," sheriff's spokesman Tom Freeman said.
The alleged supremacists met frequently at members' homes and at rural locations in the southwest part of the county, sheriff's officials said. Some of the suspects also were affiliated with nationwide white-supremacist organizations, including Public Enemy Number One, a growing "white power" group in Southern California and in state prisons, authorities said.
I've written previously about the growing presence of white-supremacist and hate-crime activity in Southern California, especially noteworthy because of its serious infiltration into high schools and among young people generally. This is clearly the most serious manifestation of that trend to date.
Evidently, Marshall's activities opened up a whole window into how white supremacists are insinuating themselves in mainstream society, particularly by disguising their intentions and evading immediate detection by the schools:
- Marshall had been doing strength training and nutritional work for the football players at Paloma Valley High, authorities said Tuesday. Doyle said high school students had joined white supremacist groups because of Marshall. He said the investigation shows that most of those being recruited ranged from ages 13 to adult.
Any contact Marshall had with students at Paloma Valley High was not done in an "official capacity," Barry Kayrell, spokesman for the Perris Union High School District, said Tuesday afternoon.
"His son played on the (football) team," Kayrell said and, like many parents, Marshall became involved with the team. "Nine times out of 10, that's not a problem."
Last year, the then-head coach of the team, Craig Lind, recommended Marshall as a volunteer "walk-on coach," Kayrell said.
What happened next is somewhat in dispute. School officials say a background check was conducted on Marshall and his criminal history was uncovered.
"A Department of Justice check was done," Kayrell said, and Marshall's connection with the school was "immediately unplugged" in August.
However, Lt. Scott Madden said the Sheriff's Department informed the school that Marshall was a convicted felon and it was then that the district took the appropriate action. Sheriff's officials say the district did not do a criminal screening of Marshall.
When asked if Marshall should, at any time, have been allowed on campus to work with the football team, Kayrell replied: "Absolutely not."
The case also opened up a window into the levels of white supremacist activitiy in the region, much of it associated with violent gangs that originate in the prison system:
- Madden said information obtained during the investigation shows that many of those arrested ---- including the Marshalls ---- were actively recruiting at the school and throughout Southwest County for the cental cause of white supremacist groups. He said the investigation revealed at least three such major groups were involved.
Photographs seized during the search warrants and displayed Tuesday show many teens standing near adults, all apparently giving the straight-arm, "Heil Hitler" Nazi salute to the camera.
In one photo, two young girls flanked a man, all three doing the salute while a Nazi flag is displayed on a stage in the background. Madden said he believes the two girls were under the age of 12.
The groups would have rallies and periodically throw parties where they would espouse their white supremacist beliefs, authorities said.
One of the most recent, Madden said, was thrown in an attempt to raise money for either the bail or defense fund for one of the 19 people arrested.
The 19 arrests in fact appear to have been just the tip of the iceberg. To date, a total of 42 people have been arrested as a result of the investigations:
- Investigations in Riverside and San Bernardino counties have led to the arrest of 42 people associated with white-supremacist hate groups in recent months, authorities said.
In southwestern Riverside County, several raids over the past four months have led to 18 arrests for various crimes and uncovered a trove of weapons, drugs, body armor, stolen vehicles, hate literature and Nazi propaganda, according to a Riverside County Sheriff's Department news release.
... In San Bernardino County, sheriff's deputies announced Wednesday that, since beginning a joint investigation with the FBI in November 2003, they had arrested 24 people with ties to white-supremacist groups in the High Desert, according to a news release. The arrests, mostly for alleged narcotics and firearms violations, resulted from an investigation of hate groups in the Morongo Basin.
Of those arrested, Thomas Powell, 23, a Desert Hot Springs resident, was later convicted of federal weapons charges and sentenced to 2½ years in federal prison, deputies reported. Brant Hardesty, a 31-year-old Yucca Valley man described by deputies as a hate-group leader, has been sentenced to two years in federal prison on weapons violations.
If nothing else, the investigations have gotten a good deal of ordnance off the streets:
- As a result of the searches, police seized more than 75 firearms, many of which had been modified or reported stolen, Madden wrote.
Others were illegal assault weapons.
Authorities also seized more than 15,000 rounds of ammunition, a half-dozen stolen vehicles, several bulletproof vests, methamphetamine, steroids, hallucinogenic mushrooms, a marijuana-cultivation operation, marijuana packaged for sale, and a large amount of white-supremacy propaganda material, Madden wrote.
A majority of those arrested were convicted felons, Riverside County Sheriff Bob Doyle reported.
But I'm sure this is just an "isolated incident."
Rich, deep, and genuine
Wednesday, January 26, 2005
Last week's issue of the New Yorker had an excellent piece by Margaret Talbot titled "The Auteur of Anime," on Hayao Miyazaki, the great Japanese anime master.
It's not available online, but there is available an interview with Talbot that recaps some of the highlights of the piece.
I have an immense admiration for Miyazaki's work, especially My Neighbor Totoro (there's a reason my blogroll features a permanent link to Totoro.org) and Spirited Away. The chief draw is what Talbot calls the "great human warmth in his films." He doesn't give many interviews, but generally chooses to let his work speak for him. And much of what attracts me to Miyazaki is the values his work encompass.
The Talbot piece makes that connection even clearer. This anecdote was rather telling:
- Several people who know Miyazaki told me that mothers frequently approach him to tell him that their child watches "Totoro" or "Kiki" every day, and he always acts horrified. "Don't do that!" he will say. "Let them see it once a year, at most!" In an essay he wrote in 1987, he was already concerned: "No matter how we may think of ourselves as conscientious, it is true that images such as anime stimulate only the visual and auditory sensations of children, and deprive them of the world they go out to find, touch, and taste."
This sense of the value of the real, and its discovery as a part of coming into the world, pervades Miyazaki's films. It comes through in another anecdote as well, taken from a Japanese documentary about the making of Spirited Away. It shows Miyazaki working with his team of young animators, and discussing with them the importance of incorporating real-life detail into the films. For one sequence, he tells them to think of how a snake falls out of a tree; but none of his young team members has actually seen a snake fall. For another shot, he tells them to think of how an eel resists being gutted; but none of them have seen that, either. Finally, he tells them for another shot to think of how a dog resists being given a pill; but again, the suggestion draws blank looks.
- "Any of you ever had a dog?" Miyazaki asks.
"I had a cat," somebody volunteers.
"This is pathetic," Miyazaki says. The documentary shows the chastened staff making a field trip that night to a veterinary hospital, videotaping a golden retriever's gums and teeth, and then returning to the studio to study the video.
When Talbot finally talks with Miyazaki, he says more on this, including a profound dissatisfaction with modern life: "Everything is so thin and shallow and fake." He also said this:
- "I'm not jealous of young people," he said. "They're not really free." I asked him what he meant. "They're raised on virtual reality. And it's not like it's any better in the countryside. You go to the country and kids spend more time staring at DVDs than kids do in the city. I have a place in the mountains, and a friend of mine runs a small junio-high school nearby. Out of twenty-seven pupils, he told me, nine do their schoolwork from home! They're too afraid to leave their homes." He went on, "The best thing would be for virtual reality just to disappear. I realize that with our animation we are creating virtual things, too. I keep telling my crew, 'Don't watch animation! You're surrounded by enough virtual things already.' "
In some regards, this sounds almost Luddite in its conservatism, but I think Miyazaki is onto something that has concerned me for some time, and increasingly so now that I am a father.
I remember my grandfather grousing about modern society along similar lines: "People today, they just go down to the store and buy their meat in a package," he would say. "They have no connection to this meat as once having been a living thing. It might as well be something they make in a factory." He too hated the fakeness that pervades modern life.
This isn't just grousing over "modern ways": it's a recognition that our materialism and desire for convenience and entertainment is leading us down a path where we lose our touch with what it is that makes us human.
Moreover, the right-wing "values" crowd is so eager to tout unbridled capitalism that it never seems to take stock of the fact that such an ethos is driving the very loss of values they're decrying. And I think progressives -- who are, at base, humanists -- should be taking stock of the need for the genuine traditional values we're losing in our rush to modernity as well.
Now, I have to confess: There's no way I'll be able to restrict my daughter's viewing Totoro to a single annual event; after all, a stuffed Totoro sits on the foot of her bed (along with a Catbus) to keep all the other monsters away. (I figure once a month should be OK.) But I do intend to make sure she also knows how a snake falls out of a tree, and a dog refuses to eat its pill. That she gets real-life experience to go along with her TV.
Nowadays, that's probably the best we can do. And thanks to Miyazaki, I don't have to worry that all of the values she consumes through the TV are thin, shallow, and fake.
The worm turns
Tuesday, January 25, 2005
It turns out conservative columnist Maggie Gallagher was taking government money for propagandizing on behalf of a government program, just like Armstrong Williams.
Best of all was her reaction to getting caught:
- "Did I violate journalistic ethics by not disclosing it?" Gallagher said yesterday. "I don't know. You tell me." She said she would have "been happy to tell anyone who called me" about the contract but that "frankly, it never occurred to me" to disclose it.
Perhaps Gallagher can be forgiven her abysmal ignorance of journalistic ethics. After all she, like the vast majority of right-wing pundits who now populate the journalistic landscape, has zero experience in the nuts and bolts of actual reporting.
So we'll be happy to tell Gallagher: Your career as a journalist is over. Or ought to be. Simply because it didn't occur to you to disclose it.
Funny thing about that, though: Back in September, Gallagher seemed to know enough about journalistic ethics to pontificate at length on the subject in the case of Dan Rather:
- Journalists don't talk like that. How could Dan know this story was true? Was he there? Did he see it personally? Of course not. Why was he vouching for the story in the language of faith, not like a hard-headed journalist reporting the evidence?
Yes, Maggie knows all about those hard-headed types reporting the facts. The ones she's paid to report.
It's one thing to commit a monumental screw-up, as CBS did in the case of its broadcast of the Killian memos. People should get fired for those, and did.
It's quite another to be taking money from either private or government interests about whom you are writing as a professional, especially without disclosing it. That usually means it's time to look into a new career.
Gallagher's only hope at this point is that we start getting a regular parade of conservative pundits who turn out to have been on the Bush administration payroll. Then they can all point at each other and say, "See! Everybody else does it!" Then they call all close ranks and pronounce each other vindicated.
And ya know, I'd bet someone in the White House is working on that talking point.
I mentioned awhile back that I was giving a talk at Seattle University on my book, Death on the Fourth of July: The Story of a Killing, a Trial, and Hate Crime in America.
The student paper at Seattle U, The Spectator, has a story on that talk online now.
It's a pretty good piece. The reporter, Katie Sauro, gets everything pretty much right. There is a little problem with the headline: This book is definitely not a novel.