After thinking about it for a while, I’ve decided that the concept of “hate crimes,” with substantial extra punishment levied on those who commit them, is untenable and should be discarded. While I admit that the motivation for such laws is often admirable—to prevent bigotry—there are several problems. The first is that a hate crime punishes not the acts itself, but the motivations behind them—the thoughts. In other words, hate crimes are thoughtcrimes. It seems to me that, if you want to treat all people as equals, you don’t levy extra punishment on those who attack certain classes of people. It is sufficient to punish the deed, not the thought, which is often hard to decipher anyway. As Michael McGough noted in an anti-hate-crime piece (from ten years ago!) in the LA Times:
For one thing, I believed, such laws could end up giving extra punishment to ordinary criminals who, while committing a run-of-the-mill crime, engaged in some racial trash talk — and that’s not the kind of bias-motivated crime the law was intended to go after. For another thing, it is possible that such laws could end up punishing blacks who commit violence against whites — which is a far cry from the historical experience that inspired hate-crime statutes.
Perhaps even more worrisome, hate-crime laws also muddle the distinction between bad acts and bad thoughts. As I wrote at the time: “If a mugger of one race uses a racial epithet while snatching the purse of someone of another race, is that a ‘hate crime’? Better for the criminal justice system to punish the act — harshly — and not speculate about the motive.”
To counter this argument, of course, you can claim that punishment is meant to deter others from repeating a crime, to keep the criminal out of society until he’s reformed, and to protect society. One could argue—though one would need facts rather than just a subjective feeling—that hate crimes inspire more “copycat” crimes than do “nonhate” crimes, that those who commit hate crimes are harder to reform and thus need longer sentences (this presumes, of course, that American prisons are engaged in rehabilitation, a fatuous asssertion), and that those who commit hate crimes pose more of a danger to society than those who don’t, and should be locked up longer.
Even if that were true, however, one could, as McGough did, counter-argue that the biggest danger with “hate crimes” is that they could spread to encompass nearly all groups. The very idea of a hate crime is, like the idea of hate speech, an elastic concept that can be stretched to cover those of whom you simply don’t approve. McGough:
The paradox is that as the list of protected groups gets longer and longer, the law approaches a situation in which every crime is a hate crime.
In his opinion in the Wisconsin case upholding “piggyback” hate-crime laws, Chief Justice William H. Rehnquist wrote that the “perceived harms” of racial discrimination justified the state’s imposition of harsher penalties for acts of bias-motivated violence. I obviously disagree, but even if you believe that there should be special punishment for, say, cross-burnings (arguably a unique affront given American history), the addition of more and more groups to the hate-crime laws makes no sense.
One final argument against hate-crime laws: 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.
McGough’s fear is not an idle one, for, indeed, the definition of what is a “hate crime” has been stretched to ludicrous lengths. In Louisiana, there’s a new law that makes it a hate crime to—get this—resist arrest. That’s considered a “hate crime” against police, and the law making it thus is called a “blue lives matter” law. As KATC reports from Acadiana/Lafayette Louisiana, if you’re arrested for a misdemeanor like shoplifting, your crime can be automatically elevated to a felony if you resist arrest. And that can double your jail time. The article quotes St. Martinville Police Chief Calder Hebert”
“Resisting an officer or battery of a police officer was just that charge, simply. But now, Governor Edwards, in the legislation, made it a hate crime now,” said Hebert.
Under the new law, Hebert says any offender who resists, or gets physical, with an officer can be charged with a felony hate crime.
For example, if someone who’s arrested for petty theft, a misdemeanor, tries to assault an officer, that individual can be charged with a hate crime. A hate crime is considered a much more serious offense, with serious consequences.
“We need the police and the public to work together. The policemen have a job. The public has the job of helping the police. And if someone happens to be involved in criminal activity. Let the courts handle it. Don’t resist physically,” said Hebert.
If the state’s new law proves successful, Hebert said he hopes the rest of the country will adopt similar laws.
“These guys go out there everyday and the main goal is to protect the public and go home at the end of the day. This is one step in making that happen. Hopefully, the rest of the nation follows suit,” said Hebert.
Now why on earth is it a “hate crime” to resist arrest? Does that mean you hate the police? I don’t think so: it means only that you don’t want to be apprehended. It’s possible, of course, that someone could willy-nilly assault a cop out of hatred for the police, but that’s not what the ordinance states. And that’s the whole problem that McGough outlines above.
Readers: do you think there should be a special category of “hate crimes” that are punished more severely?
h/t: Grania, Mark Randazza, who tweeted this: