Hate Crimes

Before looking at this commentary the reader should do some deep breathing, relax, and keep an open mind. I'm not going to say anything explosive, but I am going to argue against having hate crime laws and that in itself will cause some to assume that I am racist. Being opposed to hate crime laws doesn't mean that one is in favor of hate crime behavior. The argument against hate crime laws is centered not on condoning a type of individual behavior, but rather on fearing the eventual result of government abuse of power.

Outcries for hate crime laws will be heard whenever there is a high profile crime against a member of a minority or protected group. There is still a movement for hate crime legislation echoing from the Matthew Shephard murder. (Shepard, gay University of Wyoming student was found badly beaten, tied to a rural-area fence post and left for dead on the morning of Oct. 7, 1998. Police charge that Russell Henderson and Aaron McKinney pretended to be homosexuals, lured Shepard out of the Fireside Lounge and took him to a remote area east of Laramie, Wyo. He died five days later in a Fort Collins hospital. http://homes.thedailycamera.com/extra/shepard/ ).

The first question one might ask is what practical effect a hate crime law would have had on the killers of Matthew Shephard. Wyoming has the death penalty for murder and the four suspects were arrested and brought to justice. The threat of an additional slap on the hand would hardly have entered their calculus at the time of their crime.

The second question one might ask is what the hate crime legislation is actually punishing. Since the behavior which was spawned by their reported disgust with Shephard's perceived homosexual advances was already illegal (beating and murder), the hate law would only apply to a crime of having a certain thought or attitude while committing the other crimes. We have to take a short lesson in the elements of crimes before I explain why the premise of hate crimes is anathema to American jurisprudence.

Crimes consist not only of a certain behavior such as punching or shooting someone, but that behavior must be accompanied by a criminal intent. It is absolutely critical to distinguish between intent and motive. Intent is the state of mind which drives the behavior. To pretend to shoot someone with an unloaded gun, only to find the gun has a bullet in it when the trigger is pulled is a different intent than aiming a loaded gun with the intent that a pull of the trigger kill the intended victim. To find oneself threatened by another and choosing to use a firearm to defend oneself from a deadly attack is different than accidentally pulling the trigger while cleaning a gun. In all four of these cases a person on the receiving end of the bullet will be just as dead, but the crimes charged, if any, and the legal defenses available are all different, as would be any subsequently imposed punishment.

Motive is simply the reason that was used by the offender to justify a subsequent behavior. If bank robber A planned to rob First National Bank because his mother needed cash for a life saving medical procedure and bank robber B planned to rob the same bank to feed his own cocaine addiction, both A and B would be prosecuted for robbing the bank with the intent of stealing money. Motive, while of interest to investigators and jurors, is not required to be proven or even addressed in the prosecution. It is not an element of the criminal offense charged.

To prosecute for motive in hate crimes, as opposed to intent, would require a juror to know what set of attitudes an offender had and for the juror to be willing to punish a person for their thoughts. A thought or attitude of prejudice toward a person of another race or religion or sexual preference may be unjustified, immoral, improper, ignorant, despicable, and vile but it should not be illegal. Speech that expresses hate or prejudice is protected speech under the Constitution. As unpleasant as it may be to hear a NeoNazi parade with White Supremacists shouting racial epithets along Main Street, their thoughts and expressions are not only legal but enjoy a special level of protection by virtue of their unpopularity. In any discourse about the merits of the supremacists' position on race relations, the give and take of ideas will eventually serve the public much more fully than completely suppressing the rights of the hate mongers to spew.

The line is obviously drawn where riotous intent exists or where disturbance or assault or property damage ensues. In those cases where a criminal violation occurs those violations will be prosecuted for the illegal behavior that was intended and not for their notions of racism. Persons subject to victimization by virtue of their race, religion, sexual orientation or other minority or protected status still enjoy the protection of law. Burning crosses in someones yard, beating somebody up, refusing housing accommodations - all this BEHAVIOR remains illegal.

The peril of prosecuting thought should be obvious to any student of history or literature. The slippery slope is that certain beliefs will become illegal. Once those beliefs are unlawful, the expression of them will be unlawful and labelled as hate speech. This has already happened in other western cultures, notably our neighbor Canada. While moral absolutes such as murder, rape, robbery, assault, theft, etc will remain steady over the centuries the topics subject to hate speech will be blown with the winds of those in power. The risk to our freedoms that would occur from policing thought crimes vastly outweighs the risk of disorder from open discourse and debate, including hateful words. We must continue to define behaviors and criminal intentions as unlawful, and not motives, attitudes, or beliefs as illegal.