Thursday, May 03, 2007

Hate crimes: Progress, perhaps

-- by Dave

The course of the campaign to effect a federal hate-crimes law has, to date, followed the nearly identical path of the anti-lynching laws that Congress failed to pass in the early 20th century (a failure for which the Senate a couple of years ago apologized): At every crucial moment, right-wing conservatives have risen up to block its passage, despite the legislation's overwhelming favor with both the public and the rest of Congress.

Recall how, the last three times out, Republican leaders in the House used parliamentary maneuvers to kill a Senate-approved version. In that last case (in 2004), it was clear that their intent was to keep any hate-crime bill from crossing President Bush's desk, because he was certain to veto it -- a politically risky move in an election year.

Well, the House today passed the Hate Crimes Prevenation Act, whose details are nearly identical to the legislation killed the last two times in the House. It is almost certain to pass the Senate -- which means that Bush is going veto it, which he has vowed to do:
Just hours after the White House issued a veto threat Thursday, the House voted to add gender and sexual orientation to the categories covered by federal hate crimes law.

The House legislation, passed 237-180, also makes it easier for federal law enforcement to take part in or assist local prosecutions involving bias-motivated attacks. Similar legislation is also moving through the Senate, setting the stage for another veto showdown with President Bush.

... The White House, in a statement warning of a veto, said state and local criminal laws already cover the new crimes defined under the bill, and there was "no persuasive demonstration of any need to federalize such a potentially large range of violent crime enforcement."

This is, in fact, a distortion of the reality to the point of falsehood. Some seven states have no hate-crimes law at all, and others (such as Alabama and Hawaii) make a point of refusing to enforce the laws they do have. Others do not include gender, disability, or most particularly sexual orientation -- and it is the inclusion of this last category that of course is the source for the White House's opposition. That's because the religious right has staked out this position, and Bush is heeding their call:
... But Dr. James C. Dobson, founder of Focus on the Family, warned that the true intent of the bill was "to muzzle people of faith who dare to express their moral and biblical concerns about homosexuality." If you read the Bible in a certain way, he told his broadcast listeners, "you may be guilty of committing a 'thought crime.'"

"It does not impinge on public speech or writing in any way," countered Judiciary Committee Chairman John Conyers, D-Mich., pointing out that the bill explicitly reaffirms First Amendment and free speech rights.

Indeed, as I recently observed, the "rights" that these religious leaders claim to be defending are simply the right to commit an act that is already a crime, as are all hate crimes -- and there is no such right. Nor is a crime a form of permissible free speech.

In any event, Bush is also following his own stated ideology; back in 1999, he remarked: "I've always said all crime is hate crime. People, when they commit a crime, have hate in their heart. And it's hard to distinguish between one degree of hate and another."

This is, of course, blithering nonsense:
This meme -- favored by everyone on the right from Bush to Dick Armey to Jerry Falwell -- is partially a product of the confusion that arises from calling these crimes "hate crimes" (they are in reality "bias-motivated" crimes; "hate" quite literally has nothing to do with them, in the eyes of the law). But even without that misunderstanding, this notion is transparently baseless.

Only a little reflection, after all, can produce a long list of crimes that lack anything resembling a hateful element -- embezzlement or securities fraud, say, or drunken driving, or insider trading. I'm willing to wager that abandoning your Texas Air National Guard unit is a crime, and the only hateful elements I can see in that are an abiding contempt for your fellow servicemen and their willingness to live up to their commitments.

More to the point, the recognition that not all crimes are alike is a basic tenet of law. Bias-crimes statutes recognize, like a myriad criminal laws, that motive and intent can and should affect the kind of sentence needed to protect society adequately -- that is, after all, the difference between first-degree murder and manslaughter. Intent and motive can be the difference between a five-year sentence and the electric chair.

Attempting a sort of zero-sum analysis that makes the outcome (in the case of homicide, a dead person) the only significant issue in what kind of sentence a perpetrator should face (the death sentence vs. a prison term) would overthrow longstanding legal traditions of proportionality in setting punishment, effectively eliminating the role of culpability -- or mens rea, the mental state of the actor -- as a major factor. Or, as Justice Oliver Wendell Holmes famously put it: "Even a dog distinguishes between being stumbled over and being kicked."

Does anyone remember, by the way, how Republicans tried to make a martyr out of Bush for the NAACP's ad campaign in 2000. The NAACP highlighted Bush's callousness in dealing with the family of James Byrd even as he vetoed a hate-crime bill in Texas:
Reality notwithstanding, Republicans in short order turned the NAACP's attack ads into a liability for Democrats, accusing the civil-rights group of "reprehensible" behavior for linking Bush to the Byrd killing. By the time the election rolled around in early November, it had become conventional wisdom in the press that the ads "implied that George W. Bush killed James Byrd." Right-wing pundit Ann Coulter featured the meme in her later book, Slander: Liberal Lies About the American Right, suggesting that Bush's support for the penalty should have mollified his critics, but instead, "they would not rest until the killers were found guilty of 'hate' and forced to attend anger-management classes."

The harsh truth is this: Bush and his cohort on the religious and mainstream right, for all their oft-espoused love of "freedom" and "liberty," simply don't care about the very real freedoms of millions of Americans -- not just gays and lesbians, but people of color, of foreign extraction, of varying faiths, of the "weaker sex," and people with disabilities. Because these are the people whose freedoms are systematically and violently harmed by haters and the violent thugs who feed off their bile.

Hate crimes, as I have often remarked, are one of the important ways our freedoms can be taken away by our fellow citizens rather than the government. Laws against them are designed to defend those freedoms while keeping our other cherished freedoms -- notably freedom of speech -- fully intact.

We should have learned this lesson over the failure of the anti-lynching laws -- which were defeated under the cover of nearly identical arguments, all similarly specious. As with the current crop, these arguments really are just cardboard facades that cover the real reason for the opposition -- namely, plain old-fashioned bigotry.

The White House's position, moreover, is simply incoherent -- it's no longer opposed to hate-crime laws in general, but just doesn't think they should cover gays and lesbians. As Andrew Sullivan (with whom I generally disagree on this subject) observes, that's simply noxious: "[T]he one truly incoherent position is that hate crimes laws are fine for all targeted groups except gays."

This is what's remarkable about the looming defeat of this legislation (it seems unlikely the House Democrats can muster enough votes to override a veto): Bush and his fellow conservatives like to portray themselves as tough on crime, but they get all mushy-headed and soft on crime when it comes to certain kinds.

If this is how Bush panders to his base, then I guess we've got a much clearer picture of just who that base is.


Bradford Plumer at The Plank has more, as does John at Americablog.

For the text of the HCPA, see here. More videos from the House can be found here.

Here's House Speaker Nancy Pelosi's statement:
Hate crimes have no place in America and all Americans have a right to feel safe in their community. Though there has been a federal hate crimes law since 1968, hate crimes continue to be widespread and persistent - more than 113,000 hate crimes have been documented by the FBI since 1991. In 2005 alone, there were 7,163 reported hate crimes.

H.R. 1592 is focused on enhancing the resources of state and local law enforcement to prevent and prosecute hate crimes. All too often, state and local law enforcement alone are unable to meet the challenge of hate crime prevention and prosecution. Underfunded and understaffed, state and local law enforcement desperately require federal assistance to address this challenge. That is why this bill authorizes the Department of Justice to provide state and local law enforcement agencies technical, forensic, prosecutorial and other forms of assistance in the investigation and prosecution of hate crimes. It also authorizes the Department of Justice to provide grants to state and local law enforcement agencies that are investigating hate crimes. The bill closes gaps in federal law to help combat hate crimes committed against persons because of their race, color, religion, national origin, gender, sexual orientation, gender identity, or disability. The bill only applies to bias-motivated crimes of violence and does not impinge freedom of speech or religious expression in any way.

Hits all the high notes.

Note: Once again, I've noticed the debate at the above-linked sites regarding hate crimes has invariably wandering into the standard disinformation being peddled. As something of an antidote, I'd like to offer these links for deeper background on hate crimes, the laws against them, and the rationale for those laws.

Letter to the L.A. Times

When hate hits home

Bigotry and freedom

Hate crimes: The big picture

Failing in the present

Should we repeal hate-crimes laws?

The GOP, gays, and hate crimes

Hate crimes, democracy, and freedom

Hate crimes: A response

Who needs hate-crime laws?

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