OutRight

The Hate Crimes Mirage
Yes, Texas now has a hate crimes law–but will it make any difference?
by Dale Carpenter

Any law that manages to offend both the Christian Coalition and the criminal defense bar can’t be all bad. So it’s with some ambivalence that I argue that hate crimes laws–like the one just adopted in Texas with the approval of Republican Governor Rick Perry–are an idea whose time has passed.

Although hailed by gay groups as a lifesaver, hate crimes laws don’t work. Their only value seems to be that they are a kind of trophy commemorating a small victory in the culture war. But, as longtime sexual outlaws, gays should’ve learned by now the state has no business passing criminal laws for purely symbolic reasons.

Initially, let’s dispense with a couple of bad arguments against hate crimes laws. One common argument is that hate crimes laws–which enhance penalties for crimes directed against people or property because of race or sexual orientation or another specified characteristic–imply that some crime victims are more valuable than others.

That might be true if hate crimes laws were victim-focused–that is, dependent on the status of the victim. But hate crimes laws are perpetrator-focused: They look only at the motives of the criminal defendant. Such laws are one method among many by which the criminal justice system marshals its resources (prosecutorial, penal, etc.) against crime thought to present the gravest social threat. Bias-motivated crimes injure not only a person, they terrorize a community. So it violates no principle of human equality to punish such crimes more severely than we do run-of-the-mill crimes.

A second common argument against hate crimes laws is that they punish thought. If that’s true, such laws trespass on the traditional American commitment to freedom of thought and speech. But this charge is, in an obvious way, misplaced.

No person is punished under a hate crimes law for thinking bigoted thoughts. Nor is anyone punished for speaking or writing about such thoughts. It is the combination of bigoted motivation plus action that results in greater punishment under a hate crimes law.

Is there anything wrong with considering motive in sentencing? There is certainly nothing novel about adjusting punishment up or down based on the reasons why a person commits a crime. We do it all the time, varying sentences depending on whether an act is committed in self-defense, for greed, for spite, and so on.

Sentences are also commonly adjusted because of the degree and extent of the social harm they are thought to cause. The defendant who kills the mother of three young children will typically be punished more harshly–all other things being equal–than the killer of an unmarried person with no friends or living family. Victim-impact evidence can have a dramatic effect on sentencing.

So what’s wrong with hate crimes laws? Though they may not suffer the defects usually attributed to them, they have a more straightforward fault: They fail to deter hate crimes.

Most states have a hate crimes law, many of which have been on the books for more than a decade. Yet there is no evidence, no study, of which I am aware that these laws have had any discernible effect on the rate of hate crimes. The world is no safer for gay Texans today than it was before this latest legislative "victory."

Perhaps that should not be surprising. As advocates of these laws have long argued, hate crimes spring from a very deep well of loathing and fear. They are frenzied, often marked by "overkill" (like multiple gunshots and dismemberment) not typically seen in other assaults. They are, it seems, beyond deterrence. More, such laws are rarely invoked by prosecutors both because hate crimes are infrequent and because it is hard to prove the requisite bias motivation.

So what is the purpose of passing laws specifically targeting hate? The most honest answer to this question comes from Hawaii Governor Ben Cayetano, who recently signed such a law. Cayetano, conceding there is no epidemic of hate crimes in his state, suggested the law is needed because "there’s a statement to be made."

The "statement" made by a hate crimes laws is, presumably, that gay lives and black lives and Jewish lives are valuable. It is a symbolic gesture from the state to the populace that–whatever messages of disapproval the state has sent in the past about these groups–violence against them will not now be tolerated. That statement itself is unobjectionable.

The problem is that it is treacherous business for the state to use its criminal laws to make purely symbolic statements. Gays have long been subjected to criminal sodomy laws that are, like hate crimes laws, rarely enforced and unlikely to reduce the incidence of the very activity they purport to target.

Instead, sodomy laws are often supported because of the symbolic statement they make in defense of traditional sexual morality. That is, in fact, the precise ground on which then-Governor Bush defended Texas’ sodomy law while he was running for president.

It would be far better for us to champion the judicious use of criminal laws, reserving them only for real social problems that law will have some chance to alleviate. No one can doubt that hate crimes are a social problem. But there is considerable doubt, after more than a decade of experience, that hate crimes laws will do anything constructive about that problem. Pursuing them is chasing a mirage.