Just Say No to a Federal Hate Crimes Law

By Jeralyn, Section Legislation
Posted on Mon Apr 13, 2009 at 09:55:00 AM EST
Tags: hate crimes laws (all tags)

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With a high profile trans-gender murder trial beginning tomorrow in Colorado, liberal groups are up in arms trying to use it as a stepping stone for the enactment of a federal hate crimes law.

Just say No. I've been saying no on this since 2000 when I wrote an article I've since summarized on TalkLeft over the years here,here, here and here. My conclusion:

Crimes committed out of hatred or bigotry toward the characteristics of any individual or group cannot be tolerated. They must be condemned in the strongest possible language. Law enforcement must be encouraged to prosecute such crimes to the fullest extent of our criminal laws. Yet, whether we should enact more criminal laws with stiffer penalties and which would authorize greater intrusion into our constitutionally protected areas of free speech, free thought, free association, and personal privacy, is a matter that should be studied carefully and thoroughly before any action is taken.

Legislation expanding the current federal hate crime law, and the role of the federal government in prosecuting such crime, threatens to erode our cherished individual rights to free speech, thought and association, the right to privacy, and the right to Justice and Due Process of law (including fair trials and punishments).

Let us not enact laws out of grief and passion, or in response to a singular criminal event, however horrific it might be. Cooler heads are needed where our fundamental liberties are at stake.

Every sexual assault felony in Colorado already carries a maximum penalty of life in prison. First degree murder carries a mandatory sentence of life without parole. We also (hopefully not much longer) have the death penalty.

What more do people want? Life plus cancer? I'm sure they do, but I hope they don't get their way.

As TChris wrote here, hate crimes laws come dangerously close to punishing thought, and freedom of thought is the foundation for all other freedoms. Change the civil laws if need be and make sure that police investigate and prosecutors charge crimes appropriately -- with financial assistance from the feds if need be. But there's no need for the Feds to get further involved in prosecuting state crimes and there's no need for increased penalties, especially when they are based on one's thought processes.

Some other views: Law Prof Eugene Volokh, and on the other side, journalist and author David Neiwert.

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Just Say No to a Federal Hate Crimes Law | 13 comments (13 topical)

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Another rare occasion where we disagree (5.00 / 4) (#1)
by andgarden on Mon Apr 13, 2009 at 12:22:35 AM EST

I think there are two points I would make on this question. First, we already almost always care about what's in the mind of a person who is accused of committing a crime. That's mens rea. Unless we're going to go to a system of strict liability, that's not likely to change (nor do I think it should).

Second, hate crimes are not just about one person committing a crime against another. They are an attack on an entire group of people. It's not "I hate you," it's "I hate all of you people." While I'm open to the idea that perhaps the level of punishment should not always be higher for a person convicted of a hate crime, I think it is absolutely right that the state should recognize, and allow a jury to find, that some instances of what otherwise would appear to be the same crime are worse than others.

: Ditto, on the rarity of disagreement w/ Jeralyn. (none / 0) (#10)
by ChiTownDenny on Mon Apr 13, 2009 at 01:20:30 PM EST

Would the crime be committed if the victim(s) were not transgender (in this case), black, gay, Jewish, ...?
Deterrence has a value.

[ Parent ]

We already have a federal hate crimes law (5.00 / 1) (#2)
by MikeDitto on Mon Apr 13, 2009 at 01:09:08 AM EST

It's fair to argue against the merits of such a law on principle, but I don't see how it's defensible to deny gay people the protections of the already existing law that protects other targeted minorities.

Another point to make is that, (none / 0) (#4)
by andgarden on Mon Apr 13, 2009 at 01:23:31 AM EST

if I have my history right, the first iterations of these laws were actually anti-lynching statutes.

The same reasoning applies: do we seriously expect the state of Alabama etc. to adequately protect gay people? Of course not.

[ Parent ]

: That is true (5.00 / 1) (#8)
by MikeDitto on Mon Apr 13, 2009 at 10:32:37 AM EST

And saying the current law shouldn't include gay people because the current law should be abolished would be like saying we shouldn't fix the crack/powder disparity because drugs should be legalized.
I hear and on some level agree that on principle, in a vacuum, hate crimes laws are iffy. But we've had them for a long time and our system of justice hasn't melted down due to prosecuting hate crimes committed because of race, color, religion, or nation origin. And what we're left with is a nation where only one routinely targeted class of people--GLBT people--are excluded from the protection of those laws.
That's the government saying to me that it's OK if I'm murdered because I'm gay but it's not OK if I'm murdered because I am Irish. Because it's wrong to terrorize the Irish community by targeting people of Irish descent, but perfectly OK to target the gay community because they are just a bunch of homos.
I don't see how that's defensible.

[ Parent ]

One more law won't help (none / 0) (#3)
by Mikeb302000 on Mon Apr 13, 2009 at 01:21:03 AM EST

This is the frequent lament of my pro-gun friends who love to point out that where there are existing laws passing additional ones won't help. I happen to agree with them in that before adding to the numerous laws concerning anything, we should ensure that the existing legislation is properly enforced.

I agree, whole heartedly, Mike. (none / 0) (#5)
by The Realist on Mon Apr 13, 2009 at 06:09:45 AM EST

When we come up with a way to ensure those bigoted,"conservative" judges in Texas and the South judge based on the crime and not the orientation or race of the victim,let me know.

Too many times, here in Texas, judges have handed down sentences unequal to the crime because the law allowed for discretionary sentencing based in hate and homophobia.

One such judge was Jack Hampton.http://www.nytimes.com/1992/12/04/news/gay-rights-groups-hail-defeat-of-judge-in-texas.html?partner= rssnyt&emc=rss

Hampton is the worst offender but certainly not the only one. He is, However, and example of why we need hate crime legislation.

20 years ago (none / 0) (#7)
by txpublicdefender on Mon Apr 13, 2009 at 10:22:38 AM EST

With all due respect, that was 20 years ago.

I have to say, though, that I don't agree with Jeralyn's position. There is already a federal hate crimes law, and expanding the protection to those targeted based on sexual orientation or gender identification seems fair to me, and something that actually is more relevant to what hate crimes are occurring right now.

[ Parent ]

: Yes, that was 20 years ago (none / 0) (#9)
by The Realist on Mon Apr 13, 2009 at 10:51:28 AM EST

But he was still allowed to preside and still, as of 2008, while in retirement, was allowed to sit in on cases as a visiting judge.
The fact that it was 20 years ago makes it even more relevant, considering he was and is still allowed to serve as judge in any court of law in 2008-2009. But this is Texas, after all.

[ Parent ]

here is more on Jack Hampton (none / 0) (#6)
by The Realist on Mon Apr 13, 2009 at 06:24:37 AM EST

http://www.dallasvoice.com/artman/publish/article_9960.php

I agree with you Jeralyn (none / 0) (#11)
by AX10 on Mon Apr 13, 2009 at 06:25:42 PM EST

"Hate Crimes" legislation is legislating ones thoughts. If one is murdered in an armed robbery or murdered due to their skin color/gender/orientation etc, the suspect should receive equal treatment under the law as should the victim.
"Hate Crimes" legislation gives preferential treatment towards certain victims over others
It is unfair and unjust.

: Yes, they should (none / 0) (#12)
by The Realist on Mon Apr 13, 2009 at 10:40:37 PM EST

But don't always.

[ Parent ]

Oof (none / 0) (#13)
by DancingOpossum on Fri Jul 17, 2009 at 03:59:33 PM EST

I hear this argument all the time:

Second, hate crimes are not just about one person committing a crime against another. They are an attack on an entire group of people.

The problem is, that statement--like the belief that every rape is an attack on all women--is one of those phrases that sound good but is in fact so vague and unquantifiable it's almost without value. How do you know this, how can you know this? (Oh, yeah--by reading someone else's thoughts. So you agree that it's thought crime?)

More important: How do you prove it?

And finally: So what? If I'm raped or murdered, does it matter if the perpetrator chose me because I was a woman, or half Mexican or half Italian (assuming he would even know what ethnicity I was), or because I visit pro-Palestinian web sites, or because I voted Green, or because I just happened to be walking down the street at that time? No, it doesn't matter, not to me or to anyone else.

People who use violence as a means to their end don't restrict their violent activity to one particular group of people or tye of people. They are violent, period, and they should be punished when they use violence, regardless of who the victim is.

I'm also really uncomfortable with anything that gives special status to one group of victims over another. REALLY uncomfortable. Look what it's done to our child protection laws.