A vote against 'hate crime' laws

October 15, 1998|By George F. Will

WASHINGTON -- Matthew Shepard, a gay student at the University of Wyoming, was beaten and left lashed to a fence near Laramie through a cold high plains night. He has died. His assailants should die: Wyoming has capital punishment for first-degree murder. Now, imagine the trouble they would be in if Wyoming were one of the 21 states with laws against "hate crimes" based on sexual orientation.

President Clinton has rushed to re-endorse broadening federal hate crime laws to cover crimes motivated by the victim's sexual orientation, disability or gender. Currently, federal hate crimes include only those based on race, color, religion and national origin.

Feeling their pain

Congress continually uses the criminal law as a moral pork barrel for indignation gestures. Compassion is today's supreme political value, so politics is a sentiment competition. It is less about changing society than striking poses: Theatrical empathy trumps considerations of mere practicality. But the multiplication of hate crime categories -- statutes stipulating that some crime victims are especially important -- is an imprudent extension of identity politics.

In their book "Hate Crimes: Criminal Law & Identity Politics," James B. Jacobs and Kimberly Potter define such politics as individuals relating to one another as members of competing groups defined by race, gender, religion, sexual orientation, disability and so on. In such politics, it is strategically advantageous to be recognized as victimized or otherwise disadvantaged.

Hate crime laws are, Mr. Jacobs and Ms. Potter argue, "morale-building legislation" because they confer such recognition. But does the competition for special government-conferred status for particular groups advance the aim of hate crime laws -- a more tolerant society?

Such laws mandate enhanced penalties for crimes committed as a result of, or at least when accompanied by (can juries be counted on to distinguish causation from correlation?), particular government-disapproved states of mind. Granted, law has the expressive function of stigmatizing particular conduct. However, should government plunge deeper into stigmatizing thoughts and attitudes? The consequence will be more and more crimes presented by prosecutors as especially wicked because the defendants had odious (but not illegal) frames of mind.

Should we saddle juries with the task of detecting an expanding number of impermissible motives for acts already proscribed? Should jurors decide:

Is the utterance of a racial or ethnic slur during an assault conclusive evidence that the assault is a "hate crime," more odious than the same assault absent the slur? Does a black (white) mugger presumptively choose his white (black) victim because of his race? Are rapes invariably hate crimes because rapists pick their victims because of gender?

Was the 1989 Central Park "wilding" -- the near-fatal rape and beating of a white jogger by a gang of black and Hispanic youths -- a hate crime? No, the youths did not suffer enhanced penalties, because they also assaulted Hispanics that evening. They got more lenient treatment because of the catholicity of their barbarism.

For the flavor of the future under broad hate crimes laws, consider an Ohio prosecutor's questions when trying to prove a white man's racist motive for having a dispute with a black person at a campground. The prosecutor asked about the white man's relations with his black neighbor:

"And you lived next door . . . for nine years and you don't even know her first name? Never had dinner with her? Never gone out and had a beer with her? You don't associate with her, do you? All these black people that you have described that are your friends, I want you to give me one person, just one who was really a good friend of yours."

Small potatoes

Before passing laws that will make such inquisitorial questioning routine in millions of cases involving violent -- and nonviolent -- behavior, consider that, according to the FBI, in 1996 there were just 12 murders classified as hate crimes. And the many thousands of reported hate incidents include a small fraction of 1 percent of all crimes. Most are vandalism (e.g., graffiti) or intimidation (e.g., verbal abuse).

Now, some motives for seemingly similar deeds are so much worse than others that they make some deeds different not only in degree of odiousness but in kind: Painting "Beat Michigan" on a bridge is not quite the same offense as painting "Burn Jews" on a synagogue.

However, surely the criminal law can recognize such distinctions without codifying an ever more elaborate structure of identity politics. And surely Shepard's assailants would deserve no less severity if he were not gay and their motive had been, as it may partly have been (how do we disentangle motives?), pure sadism.

George F. Will is a syndicated columnist.

Pub Date: 10/15/98

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