Blind Prophecy

After all the discussion yesterday about Matthew Shepard (online and in real life) I realized that I’ve never given serious thought to the subject of hate crimes legislation. I was caught off guard in more than one conversation. Still, no time like the present to start thinking this through. For my friends abroad, I apologize if my writing has been very US-centric of late. Hopefully, it’s not a complete waste of your time.

First off, it’s important to know what hate crime legislation is and is not. Hate crime legislation allows enhanced penalties for criminals who have chosen their victims because that victim belongs to a traditionally disadvantaged minority group. Hate crime legislation does not make it illegal to hate people. This is an important distinction. The laws do not infringe upon the free speech of law-abiding citizens. Hate crime laws only apply when a crime has been committed and it can be determined that the primary motive for committing the crime (or for choosing the victim) was because the victim belonged to particular minority group.

Now, going back to the check and balance system of American Government, it was intended that the judicial branch would be the defenders of the basic rights granted in the constitution – up to and including the right not to suffer cruel and unusual punishment. That was supposed to be the job of judges (who, in theory anyway, were insulated from the politics of reelection and mob rule). We have a 200-year history, however, of the legislative branch trying harder and harder to appeal to voters by being “tough on crime” and legislating minimum and maximum penalties for different types of convictions. This has essentially removed a great deal of judicial discretion – but not all.

We already live in a society that punishes the same crimes differently. Criminal A, B, and C may each be technically guilty of the same type of crime (let’s say murder, for example), but criminal A receives the death penalty, criminal B gets life without parole, and criminal C gets 20-40 with parole. Why? Because we factor motive into the sentence. We also factor in such issues as how abhorrent, grievous and brutal the crime was. In short, there are degrees of social revulsion that are taken into account when sentencing criminals for their crimes.

As a society that believes in “life, liberty and the pursuit of happiness,” in “liberty and justice for all” because “all men are created equal,” don’t we find it more abhorrent, grievous and brutal when victims are selected because they are viewed as unequal? Aren’t we more repulsed when the criminal espouses views that fly in the face of our common social values of liberty and equality?

Still not convinced? Let’s say that Pete and Joe are both muggers. Pete chooses his victims out of convenience – he sees someone (anyone) walking down a dark alley and attacks. Joe, on the other hand, waits for handicapped people. See, Joe doesn’t much like handicapped people, has said so on many occasions, and feels that they deserve to be singled out for mugging because they’re weak, pathetic and not real people. Yes, both crimes are terrible, but don’t you feel just a little bit more repulsed by Joe?

So, we come up with this concept of hate crime legislation. It’s a way for the judges and juries, district attorneys and legislators to say “hey, we find it more repulsive when you target members of minority group you hate for criminal activity.”

Some other misconceptions – hate crime punishment enhancements are not forced upon every criminal who attacks a member of a minority group. The state must prove that the choice of victim or motive for crime was primarily hate-based. Judges and juries, feeling that the state has not proved that part, can reject hate crime punishment enhancements.

Currently, Federal hate crime legislation does not include gender as a protected class. I think this is an unfortunate oversight. If gender were added to hate crime legislation, not only would transgender people have more legal protection – but nearly every rape case would now have optional punishment enhancements. Rapists tend to choose their victims based on gender, after all.

Neither do current Federal laws protect people from crime based on hate in the areas of sexual orientation or disability.

“But isn’t all crime hate-based?” Ask some of my friends. “You must hate that person if you’re committing a crime against them.”

Not exactly. Most victims are chosen out of convenience, opportunity, and circumstance. Alternately, victims are chosen out of emotional passion when the criminal knows the victim well – this is not quite the same as hate. Only the rare criminal actively seeks to attack people because they belong to a minority group he/she hates.

It’s a mislead to make the debate over hate crime legislation about free speech and expression (as I started to do more than once yesterday). The real and only question we should be asking is: “Do we, as a society, find it more abhorrent, repulsive and deserving of greater punishment when criminals choose their victims or choose to commit crimes because they hate all people who are members of a certain group?” If you, individually, do find this is your position, you ought to be supporting hate crime legislation.

Filed under: livejournal by Jere Keys