The House is considering new legislation that, as best I can tell, provides state governments with grants for combating hate crimes and mandates additional penalties for criminal acts motivated by racial, religious or sexual animosity. This is not a debate I’m very familiar with, and my political “team” – such as it is – generally comes down against this approach to enforcement, but I’m fairly comfortable with the legislation. A few thoughts:
1.) I think that a hate crime is materially different from other criminal activities. I imagine that theft or physical assault is pretty bad under any circumstances, but a crime perpetrated with the intent of harassing or intimidating a particular group seems more traumatizing than a random attack, particularly if said group has endured a history of violence and repression.
2.) Having said that, should our courts be in the business of quantifying psychological harm? Civil courts already assign monetary compensation using similar criteria, so I’m inclined to think that jurors and judges are capable of fairly assessing the psychological impact of an attack motivated by ethnic, religious or sexual animosity. However, the legislation’s sentencing guidelines don’t leave a lot of room for discretion.
3.) The idea that assessing additional penalties for hate crimes will somehow limit free speech is scary, but I don’t see how that could plausibly happen. I think there’s a clear distinction between assigning more severe punishment for activities that are already criminal but have the added distinction of being motivated by hatred and criminalizing objectionable speech. Committing a criminal act is a precondition for hate crimes penalties. As long as you don’t commit a crime, I’m not sure how this legislation impacts your ability to speak freely.
4.) Given the nature of our pluralistic society, crafting legislation to protect previously-marginalized groups from intimidation and violence seems like a worthy goal.
As I said, my thoughts on this topic are pretty unformed, so I’m quite willing to reevaluate things. What do you all think?
UPDATE: Jacob Sullum is less charitable, noting that the bill federalizes a significant category of law enforcement. This is a valid concern, though I’m less impressed by his contention that hate crimes legislation outlaws ideas. Committing an actual crime is a necessary (though not sufficient) condition for prosecution. The courts routinely make determinations related to criminal motivation and mental health. If deterring racial, religious or gender animosity is a compelling state interest, I’m not sure why remedies like hate crimes legislation shouldn’t be seriously considered.
House Minority Leader John Boehner, Ohio Republican, told an editorial board meeting at The Washington Times that the hate-crimes bill makes him “want to throw up,” and noted that it doesn’t make sense to prosecute “what we think [criminals] were thinking as opposed to what they did.”
Mr. Boehner’s point is right on the mark. But the motivation isn’t about punishing crime as much as it is about controlling certain thoughts and views. Once homosexuals become a special class protected by hate-crime legislation, the back door is open to prosecuting those who speak out against homosexuality and same-sex marriage. Yesterday’s House vote was really about creating thought crimes to further the liberal agenda.
Slippery slope arguments shouldn’t be dismissed out of hand, but there needs to be some explanation of how we’re actually going to slip down the slope in the first place. I see no causal relationship between assessing additional penalties for crimes motivated by hatred and criminalizing free speech.
Incidentally, we already prosecute criminals “for what they think.” If pre-meditated murder is worse than unplanned killing, it seems perfectly reasonable to take a similar approach to attacks motivated by racial, religious or sexual hatred.