The House passed the Local Law Enforcement Hate Crimes Prevention Act
today yesterday. Supporters describe it as follows,
This bipartisan bill focuses on providing new resources to help state and local law enforcement agencies prevent and prosecute hate crimes. The current federal hate crimes law authorizes federal aid in cases of hate crimes committed because of a person’s race, color, religion, or national origin. This bill closes gaps in federal law to also help combat hate crimes committed because of a person’s gender, sexual orientation, gender identity, or disability.
As an abstract matter, I'm actually not a great fan of 'Hate Crime' legislation. I think in a perfect world we'd be a lot closer to strict liability than we currently are. While I'd make room for some mitigation defenses, I'd avoid most enhancements (including 'during the commission of a felony' type enhancements). The case for punishing all harms equally regardless of the nature of the motive is that the victim suffers equally.
But that's also the strong case for the other side: the argument, and it's a good one, is that in the case of a real hate crime the victim doesn't suffer equally, but rather extra. Worse, other people in the community suffer disparately if they think there's an extra chance of being targeted for whatever attribute is the object of hate. And that last point has more than enough truth to justify laws such as this one. (Note that in my opinion none of this argument applies with any force to 'Hate Speech' claims; however hurtful I see those in the main as protected First Amendment speech so long as words (without true threats) are the only thing involved.)
Having said all that, there's something very stirring about the some of the supporters of this bill, enough to make one's support less reluctant. Consider this Statement of Rep. Al Green,
I rise in support of the Declaration of Independence. All persons are created equal, endowed by their Creator with certain inalienable rights–among them, life, liberty, and the pursuit of happiness. Not some people, not people of a particular race, not people who just happen to be heterosexual. All persons are created equal. And for the record, I support the rights of gay people. Gay people have the same rights as any other Americans, and they have the right to pursue happiness. I support this, the Declaration of Independence speaks of it, and but for the Grace of God we all ought to realize, there go I.
Now the bill goes to the Senate, where it may face rough sledding.
One of the problems with hate-crime provisions — and, indeed, of the US Sentencing Guidelines, but from the opposite perspective — is that it’s far too easy to forget that the crime is not the criminal, and that neither accurately states the impact on the victim. Perhaps my concern comes from being a commanding officer for quite a number of years before law school, and seeing what happens (fortunately, in other units) when decision authorities forget that these are three distinct elements of every criminal event.
Hate-crime provisions (and the Sentencing Guidelines) make a fetish of treating the crime itself consistently. That’s a not insignificant concern, but it cannot be allowed to uniformly overwhelm consideration of the individual to be sentenced, nor of any specific effects on the victim. It’s just plain bad strategy, for one thing; for another, it ignores the “rehabilitation” element of a proper punishment.
The case for punishing all harms equally regardless of the nature of the motive is that the victim suffers equally.
I can see this as a theory of restitution, but it seems to have already moved beyond a theory of punishment to me. If we have a retributivist, a “justice” based account (of the sort Paul Robinson favors, and that I’m also pretty partial to), or a deterrence account, we surely need to consider mental states of the actors to get our desired result, but we don’t get this with the sort of strict liability approach you mention here, I think. Anyway, it’s a bit beside your main point, but was bothering me.
“Gay people have the same rights as any other Americans, and they have the right to pursue happiness. I support this, the Declaration of Independence speaks of it, and but for the Grace of God we all ought to realize, there go I.”
You find this stirring? This is a nice example of the oppression of condescension. The Representative starts by making it clear that there are two groups, Gays and other Americans, as if there really are two groups. Then he points out, as if it needs to be pointed out, that Gay people have every right to happiness. Gee, I’m sure they appreciate that. We’ll ignore the center section, but then he feels compelled to point out, via-a-vis homosexuality – there, but for the Grace of God, go I. Boy, I dodged that bullet.
Translated, this quote reads:
“Gay people might be Gay, but they should have the same rights as other Americans, and they feel pain and joy and fear and happiness, just like people. I thank my God every day I’m not Gay, but I support them having the same rights as other Americans, because the Declaration of Independence does, so legally, I guess, they should.”
This is not all all stirring and it becomes clear in the last sentence. What if a Republican Representative had said:
“Black people have the same rights as any other Americans, and they have the right to pursue happiness. I support this, the Declaration of Independence speaks of it, and but for the Grace of God we all ought to realize, there go I.”
He or she would be hounded out of office by the media and black leadership, regardless of any intent in the speaker. We won’t reach the end of hate speach until we stop feeling compelled to point out how some group is “just like us” which should be obvious, and would be but for racisim, sexism, or some other bias.
I’m not attributing any of these intentions to you, but only here making the point that very often the worst bias-ism comes in subtle packages that most of us just swallow hook, line, and sinker, often in the guish of political correctness. Americans who are Black, women, homosexuals, Jews, heck, even Irish aren’t “just like other Americans” they ARE Americans and nothing more need be said to justify their existance or rights.