Friday, January 28, 2005

Should we repeal hate-crimes laws?

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.

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