Tuesday, February 10, 2004

Hate crimes, democracy, and freedom

In the comments responding to the post about my forthcoming book, Death on the Fourth of July:A Hate Crime, a Killing, and a Trial in Small-Town America, CivLib responds to my parenthetical remark, "You'd be surprised how many liberals oppose the laws, primarily for civil-libertarian reasons" thus:
Concerning "hate crimes laws": I don't know why it would be so surprising that many liberals would oppose those.

I generally oppose, as a matter of principle, anything which increases penalties for existing crimes, which adds new offenses to the books which were not previously offenses, which results in more people going to prison for longer periods, or which results in more rights being taken away.

The U.S. has the highest incarceration rate in the world, yet it seems too many liberals and conservatives want to outdo each other in locking even more people up. When is it going to stop?

This is not an entirely new argument, course -- in fact, it is the core of the civil libertarians' argument against hate-crimes laws. It's an argument I respect, because -- unlike, say, the religious-right folks who attack the laws because it "infringes on their civil liberties" (as though violent crimes were a basic right), or the brain-dead Republicans (see, e.g., George W. Bush) who argue that "all crimes are a hate crime" -- it is not based on fallacy but on serious and legitimate concerns. (A variant of it can be found in the James Jacobs and Kimberly Potter text, Hate Crimes: Criminal Law and Identity Politics.) However, like the others, it misapprehends the nature of both the crimes and the laws against them.

First of all, it must be pointed out that proportionality in punishment is a basic and long-established feature of the law. It is the basis for the difference between first-degree murder and manslaughter -- both are predicated on the death of another person, but both vary widely in the kinds of punishment they receive. There are multiple categories of assault, depending both on harm to the victim and the perpetrator's intent and motive.

Hate-crime laws simply recognize that hate crimes innately inflict greater harm, both on the victim and the broader community, as well as to the basic underpinnings of democratic society. They make painting a swastika on a synagogue a more grievous crime than the simple act of vandalism it might otherwise be. Likewise a skinhead "stomping" of a minority is treated more egregiously than a bar fight.

The principle to which CivLib refers is a reasonably sound one: Sentencing ranges should not be enhanced willy-nilly, and too many laws directing predetermined sentences for certain crimes can both hamstring the judiciary and create a hodgepodge of "enhancements" that gum up the system of justice. This is especially the case with the minmum sentences that have been passed on behalf of drug laws.

But this is a problem for the entire body of the law. Moreover, there is a clear need for sentence enhancement when the greater harm is clear. What's needed, of course, is a balance -- and when it comes to weeding out those enhancements that are excessive, the level of harm should be the greatest priority. This harm is hardly clear in the case of drug crime, for instance. Hate crimes, however, another matter altogether.

Hate-crime laws are indeed relatively new laws, and understanding them in some regards requires rearranging our traditional ways of thinking. Certainly, it requires dispelling many long-favored myths. But in the final analysis, they represent something that, given the perspective of history, is a long thread running through American culture, 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." Hate-crime laws at their core draw on Americans' sense of decency and fair play, and to the extent they are enforced fairly and adequately, they are an important reflection of those traits.

The old anti-lynching laws from which hate-crime laws are descended were never approved, mostly because of the vehement opposition of the Deep South. But the spirit that drove them has remained alive and resurfaced in more congenial times.

Boston University Law School professor Frederick Lawrence, perhaps, sums it up best in his text Punishing Hate: Bias Crimes in American Law:
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 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.

It's important to keep in mind also the nature of hate crimes, and what their real-world effect is. They are "message" crimes, and their message is: Go away. You and your kind are not welcome here. They undercut not only the basic values of equality and fair play, but the actual, real-world freedom of anyone who happens not to be a straight white Christian. They're all about intimidation and exclusionism and subjugation and terrorization, an intent that really cuts against the meaning of American democracy itself.

I know this from direct experience as a journalist in rural places, where these kinds of crimes are clearly intended to drive minorities out and, in the case of gays and lesbians particularly, subjugate them to humiliating violence.

Ken Toole, a native Montanan (and state senator) who runs that state's Human Rights Network, knows all about the fear minorities have of rural places like his home state. "I've experienced that firsthand, in talking with African American people on airplanes, et cetera, and their perception that Montana's not a safe place. And I think that stems from hate-crime incidents, but is more heartily reinforced by the presence of Militia of Montana, Aryan Nations, and things like that. It all feeds together.

"Here in Montana, in lily-white Montana, we spend all this time engaged in a debate whether or not these groups are white supremacist. Your average person of color doesn't even have that debate. They just know it."

Toole says that when the image of a place as a haven for haters is combined with news stories of real-life hate crimes, the result is a widespread desire by minorities to avoid that place at all costs. "What you end up with is, we've heard about African American people being transferred to Montana and rejecting the transfers," Toole says, noting that it is something of a commonplace that rural people avoid the cities out of an irrational fear of crime committed by minorities: "There's very little question in my mind that, yeah, we rural folk maybe get a little nervous about the deep colors of the inner city, but that is very much a two-way street."

Perhaps of equal significance are the real-world ramifications of this fear for both minorities and the places they fear to visit: an impoverishment of the nation's democratic underpinnings. As Yale University professor and hate-crime expert Donald Green points out, hate crimes succeed in making the nation indeed a smaller place for people of color, members of minority religions like Jews, and gays and lesbians.

"I think if you had to kind of step back and ask, 'Does hate crime pay?,' you'd say yes," Green says. "If the point of hate crimes is to terrorize the population into maintaining boundaries between these perpetrators and the victimized populations, at least in some areas -- certain parts of town, certain parts of the country, et cetera -- you know, certain kinds of romantic relationships, whatever -- then it does succeed in that. Because people really do feel that they have to constrain their behavior lest they open themselves up for attack. You know, gay men don't often hold hands in public. Black and white couples don't form spontaneously to the extent that you might expect based on their daily interactions.

"There are a lot of instances like that -- and you know, we all probably have interactions with people who, when they're invited to a certain part of town, say, 'Oh, I better not go there.' From my standpoint, you tend not to attract much notice from policymakers, but I think of that as a massive dead-weight loss of freedom.

"Even if you say, 'Ah, well, they would have spent their money in this restaurant, maybe they'll spend their money in some other restaurant,' and so it's a wash, just the fact that people feel less than free in a free country is a tragedy."

Green also argues that even seemingly insignificant incidents -- the kind police are prone to ignore or de-emphasize -- can contribute to the cumulative effect. "If you see a swastika on an overpass, you say, 'Well, you know, it's just a bunch of kids blowing off steam, it doesn't really mean anything,' but when you start to think about the kind of cumulative effects that that would have on a variety of people, both perpetrators and victims, then the result is considerable.

"And that's why I think that, while there's a segment of the law-enforcement community -- and even people like me in an unguarded moment -- that will say that in some respects the hate crimes laws have been a flop, the laws in fact have a substantial basis in theory. And that theory is that if you could somehow put a value on that dead-weight loss in freedom, it actually would be a significant sum. And therefore it does pay society to deter this kind of activity.

Hate-crimes laws are often depicted as a "liberal" cause mainly because they are seen as a kind of "minority rights" protection -- though as I argue in Death on the Fourth of July, that view of the laws is mostly a fallacy. The reality is much more significant -- for in fact, they codify in the law basic values of protecting the real civil liberties -- and the real freedom -- of all Americans. They are an attempt to deter the people in our society who would take that freedom away from their fellow citizens. In that sense, they are an important component of any kind of serious effort to enhance American civil liberties -- and our freedoms.

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