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.
Upon hearing each of these points I immediately rise up on my hind legs and say no, no, a thousand times no. And as I move toward my conclusion of this missive I would first draw the attention of all purveyors of such opinions to the four words inscribed in stone over the doors of the Supreme Court of the United States of America. EQUAL JUSTICE UNDER LAW.
Those four words, when combined with the very first freedom which the Founders chose to inscribe in the Bill of Rights, should be enough to sweep away all of the arguments foisted above like flotsam in the stream. Attempting, as Doug does, to brush off arguments against the thought police by claiming that additional charges are simply a sentence enhancement should be antithetical to any person claiming to support the Constitution. The thoughts or speech taking place while a crime is in process, be they ever so horrid to reasonable persons, are not a crime. In fact, they are specifically protected. It’s why we have to issue permits to the Klan when they march, allow the revolting members of Westboro Baptist Church to spew their evil bile against the Honored Dead and tolerate anarchists who protest the G-8 summits proclaiming that capitalism is the source of all evil. What you think or believe, no matter how horrendous to civilized minds, is protected. And charging criminals in an additional fashion for their thoughts is in direct contradiction to the Bill of Rights.
Others employ a tactic which Mataconis thankfully does not invoke, saying that thought goes to motive, a well established principle in law enforcement. This argument is a red herring which never grew large enough to leave the hatchery under critical consideration. Motive is a critical tool in criminal investigation to be sure, but it leads to apprehension, not the leveling of charges. Those touting this theory go further, claiming that we have different crimes based on the thoughts of the perpetrator, usually citing the difference between accidents, manslaughter and murder. This too is a false argument.
It is true that there is a different crime charged, for example, if a driver hits a child dashing into the street in front of her while chasing a ball, or if she is texting while driving too fast, or if she is waiting outside the residence of her philandering husband’s paramour and runs him down in a rage. But in each case, though a person was run down by a car, the fundamental crime was different. One was a pure accident, one a case of criminal negligence and one a case of premeditated assault. Why the assault took place – be it revenge for infidelity or a desire for life insurance money – does not matter. Her reasons for her murderous rage do not factor in… simply the fact that she intended to kill him.
As to the fallout of these laws when bad actors are sentenced, there is an equally obvious devolution of the nation’s founding principles in play. For a prime example of this we need look no further than one of the signature, despicable crimes which Mataconis references above… the torture and killing of Matthew Shepard. The details are too gruesome and too well known to detail here, but that tragic story resulted in yet another layer of “hate crimes” in our legal system. And this allows us to examine where the implementation of such legislation makes a parody of those four words over the door of the Supreme Court.
On that fateful night, Shepard was dragged out into the wilderness, robbed, beaten, tortured and left for dead… all ostensibly because his attackers knew he was gay. (Yes, there have been questions raised about that aspect of the crime, but that doesn’t affect this discussion.) Let us say that another young man in a different bar ran into a different pair of monstrous miscreants and was treated the same. But in this alternate story, the attackers decided that the victim looked “too rich” for their tastes. Not only was he a potentially fruitful target for robbery, but in the minds of the degenerates stalking him, he had that rich boy look about him and was just the sort of person who was in need of a frightful lesson.
If the story comes to the same tragic end for the rich boy, since he does not fall into any favored demographic, less resources may be dispatched to apprehend his killers. And when captured, a lesser punishment will be handed down, since they were “only” guilty of robbery, torture and murder… not hating him for the right reasons.
Is this justice? Is his life worth less because he doesn’t qualify for some pigeonhole definition? Should fewer law enforcement resources be put to the apprehension of his killers or less satisfaction to his family be delivered in the form of a lesser sentence? The answer to all of these questions is no. This is not Equal Justice Under Law. It is selective enforcement and punishment, placing a higher value on one victim’s life than another. And the only justification given for this thumb on the judicial scale is based entirely on the reprehensible yet protected thoughts and beliefs of the attackers.
So why do such crimes remain on the books and survive challenges in our court system? The cynical yet obvious answer is that politics and the new correctness of inevitable progress have infused every aspect of each branch of our government. Nobody wants to be the one who comes down on the wrong side of history when a bright new era of change is upon us, Constitution be damned. No judge wants to author the decision which stands in the path of the landslide. No legislator seeks a place as the author the bill which halts the bandwagon upon which they all plan to ride to electoral victory. And so they cave, fearful of upholding their oaths in the face of scorn from the media and progressive activists who seize the liberal media high ground in the argument.
This is a shame upon the nation, and one which should be called out at every opportunity. There is a hate crime taking place, but it’s a crime against the rule of law.
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