By BILL KELLER NYTimes Published: April 1, 2012
IN 2009 President Obama signed a federal bias crimes law named for the
victims of two gruesome 1998 atrocities: the young gay man who was
tortured, lashed to a fence and left to die; and the black man chained
to the back of a pickup by white supremacists and dragged until he was
dismembered. The Matthew Shepard and James Byrd Jr. Hate Crimes
Prevention Act joined a 40-year accumulation of statutes declaring
that crimes committed with a mind full of racial spite or
anti-Semitism or homophobic hatred should be punished more severely
than identical crimes committed for greed or vengeance.
Tony Cenicola/The New York Times
Bill Keller
Related in Opinion
Charles M. Blow: The Curious Case of Trayvon Martin (March 17, 2012)
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Nicholas Blechman
Today the notion is embedded in our culture. Almost every state has
some variety of hate crime law. The most recent F.B.I. count, for
2010, reports 6,628 "criminal incidents" involving bias — instances
where local authorities judged that the offender was motivated by
hatred of a particular group. The Supreme Court unanimously upheld
disparate penalties for bias crimes in 1993. The A.C.L.U., after years
of resisting, endorsed a hate crime bill in 2005.
But the fact that it is constitutional and commonplace does not quiet
the nagging sense that hate crime legislation resembles something from
an Orwell dystopia. Horrific crimes deserve stern justice, but don't
we want to be careful about criminalizing a defect of character?
Because our founders believed that democracy requires great latitude
for dissent, America, virtually alone in the developed world, protects
the right to speak or publish the most odious points of view. And yet
the government is authorized to punish you for thinking those vile
things, if you think them in the course of committing a crime.
The issue is back with us thanks to the heartbreaking deaths of two
teenagers. One is Tyler Clementi, the Rutgers student who jumped to
his death from the George Washington Bridge after his roommate
surreptitiously, briefly, video-streamed him kissing another man. The
other is Trayvon Martin, the black Florida youngster shot dead by a
neighborhood watch volunteer. Clementi's roommate, Dharun Ravi, was
convicted not only of invading Clementi's privacy and intimidating
him, but of acting with an anti-gay bias that could add up to 10 years
of prison to his sentence. The shooter in the Trayvon Martin case,
George Zimmerman, has not been charged with anything, but politicians
are already slinging the h-word.
If the idea of criminalizing hatred makes you queasy, as I think it
should, these two cases will not settle your stomach.
Anyone who followed the Rutgers trial closely — or read Ian Parker's
absorbing investigation of the two roommates in The New Yorker — is
likely to conclude that Ravi is arrogant, mouthy and insensitive, but
not a malicious homophobe. Clementi was an openly gay, socially
awkward, complicated 18-year-old, who killed himself for reasons we
don't know. My reading of the case is that the jury seized on those
handy bias statutes in a clumsy attempt to punish somebody for a death
that remains unexplained. It's not a great reach to say that Ravi
faces up to 10 years in prison for being a jerk.
The shooting of Trayvon Martin has become a cause before it is even a
case. It's natural to admire the resolute grace of his grieving
parents and to endorse their demand for answers Florida authorities
have been slow to provide. It's commendable to shine the lamp of shame
on Florida's absurdly permissive gun laws. (This, remember, is the
state that tried last year to make it a crime for doctors to talk to
patients about the dangers of guns in the home.) But fashioning a
narrative from the hate-crimes textbook — bellowing analogies to the
racist nightmares of Birmingham and Selma, as the reliably
rabble-rousing Reverend Sharpton has done — is just political
opportunism. This is the kind of demagoguery that could prejudice a
prosecution, or mobilize a mob. Is it not creepy, by the way, that
Spike Lee was tweeting the suspected home address of George Zimmerman?
As if to say, "Go get him!" (Lee sent apologies and a check to the
elderly couple who were scared from their home because, oops, the
tweet gave the wrong address. But apparently it's O.K. to terrorize
Zimmerman.)
If the trial of Dharun Ravi illustrates how readily hate crime laws
can be abused by juries, the death of Trayvon Martin shows how easily
they become pitchforks for showboating politicians.
The anguishing cases of Tyler and Trayvon sent me back to the earlier
debates over hate crimes. It is an abundant literature packed with
historical analogies, philosophical hair-splitting, political
posturing and interesting digressions.
Many of the justifications for anti-hate laws seem to me to fall
short: bias crimes terrorize more than the immediate victim; yes, but
so does a mugger who frequents a particular neighborhood. We must
protect the most vulnerable; fine, then why not assign extra penalties
for criminals who prey on the poor, children, or — as a few
prosecutors have done — the elderly? Racism and other prejudices are
especially offensive motives; worse than sadism, or pedophilia?
Back in 2001, Heidi M. Hurd, a professor who comingles law and
philosophy, wrote an article entitled "Why Liberals Should Hate 'Hate
Crime Legislation.' " The thesis sounded contrarian; hate crime laws
evolved out of a great liberal cause — civil rights — and have been
propelled by activists and politicians most of us would call liberal.
Hurd, though she is a Democrat, was referring not to the contemporary
political left but to traditional, John-Locke-and-John-Stuart-Mill
liberalism, which holds that the state is licensed to temper bad
behavior, not to perfect human nature. Hate crime laws, she wrote,
crossed that line: "The law now regulates not only what we do, but who
we are."
There is nothing novel about the law taking into account a criminal's
state of mind; one of the prerequisites for a conviction under common
law is "mens rea" — a guilty mind, malice aforethought, criminal
intent. The law also recognizes gradations of guilty purpose. A
premeditated killing is more punishable than one committed in the heat
of the moment, which is worse than a killing that results from
negligence. New York law compounds the punishment if you kill someone
to prevent him from being a witness.
The distinction Hurd makes — convincingly, I think — is that when you
penalize intent you are punishing matters of choice. One can choose
not to pull the trigger, not to throw the rock, not to steal the
purse.
"You can't choose not to be prejudiced or biased — at least not
willy-nilly, on the spot," she told me, when I called her the other
day at the University of Illinois. "We pass moral judgments all the
time against bigots and chauvinists and homophobes and so forth. But
this is a question not of what we should morally blame people for, but
of what we should deprive them of liberty for."
In her criminal law class, Hurd teaches the cases of Matthew Shepard
and James Byrd, and says that every time she confronts those monstrous
crimes a part of her wonders, "Why don't we use the power of the state
to make people less evil?" But, as she points out, those were both
crimes eligible for the death penalty. "What are you going to do, kill
somebody twice?"
In most cases, hate crime laws take offenses that would carry more
modest sentences — assault, vandalism — and ratchet up the penalty two
or three times because we know, or think we know, what evil
disposition lurked in the offender's mind. Then we pat ourselves on
the back. As if none of us, pure and righteous citizens, ever
entertained a racist thought or laughed at a homophobic slur.
Bias laws are widely accepted. They are understandable. They are
probably here to stay. But they seem to me a costly form of
sanctimony.
More:
nytimes.com
--
Together, we can change the world, one mind at a time.
Have a great day,
Tommy
--
Together, we can change the world, one mind at a time.
Have a great day,
Tommy
--
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