It is unfortunate that events generally require the commission of a crime of unspeakable magnitude in some unsuspecting community before the media is prodded to, yet again, take up the long overdue reexamination of the various “hate crime” laws peppering the legal code of the federal government and most of the states.
Such was the unfortunate case yet again in April of 2014 when Fraizer Glenn Miller, a former grand wizard of the Klan, opened fire at a Jewish community center and an adult care facility in Kansas. Whether Miller “succeeded” in his desire to kill Jews or not (he didn’t, proving that he was not only an anti-Semitic monster, but an intellectual dim bulb to boot) is not germane to today’s discussion. The point being raised here is that his actions, along with the subsequent question of whether or not to charge him with various “hate crimes” at trial, bring us yet again to the issue of whether such legislation has any place in the legal codes of our nation.
For those who wish to spare themselves a lengthy dissertation on the subject, I shall save you some time. It does not.
An incomplete look at this debate may be found in examining two analyses on the subject which were published in the wake of the tragedy. One was from Doug Mataconis, an attorney and author at Outside the Beltway, in which he essentially makes the all-too-common case that “hate crime” laws may be problematic in some ways, but they’re here to stay and the complaints against them are not sufficiently significant to warrant raising much of a fuss. He writes this in response to Michael McGough of the Los Angeles Times. For his part, McGough takes a stand — albeit a rather soft one – for true equality under the law, but spices it with so many caveats and apologies that the reader is left wondering whether this is a call for action or a request for thesis subjects in a pre-law class.
The arguments being put forward in defense of these blatantly unconstitutional laws are familiar, having been trotted out every time this debate makes the rounds. One of the saddest of them is put forward in a paragraph by Mataconis which needs to be included in full to do it justice.
On some level, the idea of “hate crimes” seems nonsensical. After all, if someone is assaulted, raped, or murdered, it really doesn’t matter why they did committed the act and it’s not intuitive that we should treat some crimes differently because the person who commits them is motivated by animus toward someone based on their race, gender, or religion. However, for roughly the last thirty years we as a society have made the decision that people who commit violent crimes for these reasons should be punished more severely than otherwise would be the case. In many cases, these laws have been passed in response to particularly egregious crimes, such as the Matthew Shepard and James Byrd Jr cases, which led to the passage of the 2009 Federal Law under which Miller could potentially be charged. Additionally, most states now have some version of “hate crimes” laws.
There’s an interesting phrase in there which bears repeating. [f]or roughly the last thirty years we as a society have made the decision. Presumably the proof of how we as a society have made this decision is to be found in the laws passed by the representatives we elect and the justices sitting in the courts which either validate or dismiss those laws. How this serves as proof of anything in the constitutional arena is a mystery. This is presumably the same system of courts which produced the eventual decision in Kelo. But to reach back for more applicable case law dealing with the equal nature of all citizens under the law, we as a society have previously held some rather odd ideas which were held for far longer than thirty years. And they were upheld in these same courts, such as the final judgment rendered in the Dred Scott decision. So enough of the talk of the infallibility of group consensus at any given moment.
But this aspect of the argument only scratches at the surface of the underlying questions. Is it constitutional to punish someone for what they are thinking at the moment they commit what is obviously a crime? And the point which perhaps cuts even more to the heart of things would be to ask if any person is deserving of more or less protection under the law based on some demographic difference between themselves and another potential victim. McGough quotes himself from an article some years back and makes a mostly forceful case.
[H]ate-crime laws may have the paradoxical effect of privileging some victims of violence over others. I put it this way: “If their overarching purpose is to affirm the equality of all people, then the law should punish all assaults the same, regardless of the race, gender, religion, sexual orientation, disability or veteran status of the victim. The ‘protected class’ should be human beings.”
This winning argument is dismissed on all major points, not only by Mataconis, but by an entire class of people who seem willing to turn a blind eye to that fundamental truth in the interest of political expediency. But Doug goes the extra mile to additionally dismiss the concept of people remaining free to think, believe or say whatever they wish, even while committing vile acts which rightly deserve swift and harsh punishment.
Although McGough does not make the argument, another common objection to hate crimes laws is that the criminalize thought rather than action. However, there’s little actual merit in this argument. If Miller is charged with a crime, for example, it won’t be because of what he was thinking, but because of the fact that he acted on those thoughts. In fact, if it were to somehow happen that Miller were acquitted of the charges against him then it would be impossible to convict him of the underlying hate crime. In other words, hate crime laws can generally be seen as sentencing enhancements rather than separate crimes in and of themselves. In that respect, they’re no different than the statutes passed in many states which provide for longer sentences if someone commits a crime such as burglary with a gun.