Crimes Regular Crimes?
by James Hall
Those who dislike the notion of "hate crimes" will be unhappy that the US House of Representatives is now considering a bill passed in the Senate last July called the Hate Crimes Prevention Act of 1999. It would fine or imprison those who cross state or national lines to perform "violence, motivated by the actual or perceived race, color, national origin, religion, sexual orientation, gender or disability of the victim..." and would issue grants to train local law enforcement to investigate, prosecute, and prevent such crimes.
Since the term "hate crime" was coined in 1985, 39 states have established some form of hate crime laws. Between 1992 and 1997, the Justice Department documented over 20,000 cases of these crimes. But critics say that hate crimes punish free speech, are redundant, unfair, and divisive. Crime laws already on the books are sufficient to take care of so-called "hate criminals." I disagree. Laws like the Hate Crimes Prevention Act of 1999 are a vital component of our efforts to live together in peace, and should be supported by us all.
Opponents of hate crimes laws argue that they punish a person for thoughts and beliefs, a punishment that is a violation of the First Amendment. But as written, hate crime laws punish people who believe only if they act on those beliefs and do violence motivated by hatred. How do you prove motivation? By examining the evidence -statements that the defendants have made, actions they have taken, written materials in their possession, witnesses.
Do we ever consider a defendant's motivations for ordinary crimes? Constantly. The difference between first and second-degree murder, for example, frequently rests on the defendant's motivations - did he commit murder coldly, with premeditation, or was it a spur-of-the-moment, emotional decision? Did he discuss the murder beforehand? Act in perceived self-defense? These are questions that call for an analysis of a defendant's beliefs, attitudes, and opinions, and the prosecution's success in convincing a jury of the defendant's motivations can be the difference between a conviction of first or second degree murder or an acquittal if the jury is not convinced.
The First Amendment has never protected speech involved in crimes like murder, arson, or assault from being used as evidence. In the same fashion, prosecutors of a hate crime may use the defendant's speech as evidence, but must prove beyond reasonable doubt to a jury that a defendant was motivated by hatred to commit violence in order to convict the defendant of a hate crime.
Does this create a "chilling effect" then, on free speech? No. A person can preach hatred and division all day and face no prosecution - unless he or acts violently on that hatred.
Opponents argue that hate crimes legislation is redundant, since violent offenders are already punished under the law. But hate crimes are different from or more severe versions of the crimes they are compared to. The American Psychological Association in a report called "Hate Crimes Today: An Age-Old Foe in Modern Dress," characterized hate crimes as message crimes, different in that the offender's purpose is to send a message to groups of people - that they are not wanted. Think of Buford Furrow's call for a nation-wide pogrom against Jews, or the symbolism behind burning churches that are the center of their community and you immediately see the difference between hate crimes and normal crimes.
Preliminary research funded by the National Institutes of Mental Health indicates hate crimes have more serious psychological effects on their victims than comparable crimes, effects that extend far beyond the individuals involved to the community at large. This finding is supported by the greater attention that we pay to these crimes when they do occur in our communities.
What of the argument that hate crimes legislation protects only certain groups, giving them special treatment at the expense of others? Laws like the Hate Crimes Prevention Act are written and applied to protect any individual attacked by another because of actual or apparent membership in a group. In Wisconsin v. Mitchell (1993), the US Supreme Court upheld the constitutionality of hate crimes statues in a case involving an attack by a group of black teenagers on a white victim. And in hate crime statistics reported to the FBI in 1996, 20% involved white victims.
Do hate crime laws create divisions instead of healing them? The Hate Crimes Act neither names nor protects specific groups; rather, it protects individuals who are being singled out as members of a group. By deterring these acts of violence, the Act works to establish harmony and peace in society. It's not the law that divides our society, but the threat of criminals performing crimes that create fear and hatred in response.
Would this federal law override state and local laws? It would not -it simply provides a way to charge defendants who cross state lines and national boundaries, and provides assistance for local authorities to identify and prosecute hate crimes.
The deterrent effect of the Act is important. What begins as harassment of individuals who are different often escalates into greater and greater acts of violence towards individuals who are different from the perpetrator. By passing this act, we send our own message to people who commit message crimes motivated by hate - that they will be punished in proportion to the acts they commit.