Basics of hate crime law
The term "hate crime" is new. The laws against hate crimes are new. Are they a good development or not?
Hate crimes seem superfluous. Why should the traditional crimes such as assault or arson be supplemented by new crimes such as hate-assault and hate-arson? The victim receives the same injuries in either case. If the damages are greater and juries know this, the remedies can be altered accordingly. Why go through the added difficulties of proving that the motivation of the crime was to injure someone because of hatred? Is anything gained beyond labeling the criminal as a person who hated?
Hate crimes carry greater penalties. Hate in and of itself becomes an additional crime when it occurs in conjunction with an ordinary crime. Arson is a crime. The new crime is Hate + Arson. If you intend arson, don’t do it because you hate the person who owns the building. Do it because you like fires or want to collect insurance money. Hatred is deemed punishable whereas liking fires or wanting to collect insurance money fraudulently are not punishable. Does this make sense? Why is hatred special? Why should the law punish hatred?
One theory behind hate crime legislation is that hatred harms others who are not direct victims of the criminal’s crime. There is an externality. If someone paints a swastika on a synagogue, if someone paints a corpse on an abortion clinic, or if someone shoots a Mexican immigrant, all synagogues, all abortion clinics, and all Mexican immigrants are said to be victimized. They are said to be intimidated. The crime is greater, and so the penalty should be greater. That’s the theory.
The state does not have to prove that the crime is greater in the sense of harming many others. It only has to prove that hatred is present. The law automatically assumes that many others have been harmed because it assumes there is an externality. There is no way to prove harm to others because there is no physical injury to them or their property. The extension of the crime to others is supposedly an implication of the fact that it was motivated by hatred.
The externality argument does not hold up. By this theory, an arsonist who sets fires is not presumed to scare other property owners that their property may be next to be burned. A robber who has held up 5 people in a neighborhood, motivated by the desire to get their cash, is not presumed to scare or intimidate anyone else in the neighborhood.
Related distinctions of the law
Suppose hatred is the sole motivation of a crime. So what? A crime is a crime as far as the victim is concerned. Its severity is what it is and justice must deal with that fact, no matter what the motivation was. As against this, motivation or similar considerations seem to be important in many areas of law. More accurately, who the perpetrator is and what his background is may shed light on whether the crimes were premeditated or not. If a drunken driver kills a child, the child is just as dead as if a serial killer did the deed. The state’s law distinguishes these crimes. Should it? Should an accident count the same as an intentional crime? Probably not. But while there is no guilty mind (no intent or no malice aforethought) in a drunk driver who kills, there is severe damage, as bad as it can get, and justice has to consider both. These cases are not easy. Perhaps the best answer is to let the jury decide the remedies. Don’t let legislators tie the hands of jurors.
Are these situations analogous to hate crimes? Suppose two arsons are premeditated. The motive for one is psychological gratification and the motive for the other is hatred. It seems impossible to argue for a hate-arson and not a gratification-arson. This means that defining a crime by motivation is a false distinction or one that lacks generality and consistency. It would seem that what is done in other areas of the law to examine intent does not apply to hate crimes. Intent and motivation are two different things.
Arguments against hate crime laws
There are quite a few other reasons to be skeptical of hate laws. (1) Proving that hatred is a motivation is costly and difficult. (2) Attributing motivation to a specific emotion can be quite subjective. It allows a jury or a judge to penalize criminals on subjective grounds. This can be a source of injustice. (3) Harm to others than the actual victim is not actually proven. It is presumed, and the criminal is punished for this unproven crime. This is unjust. (4) The externality theory is faulty because all sorts of crimes may intimidate non-victims or potential victims. If people are to be punished using a theory of crime, that theory should be broad enough and accurate enough to be fair over all similar cases. (5) Restitution to victims is typically disregarded by our criminal justice system. Hate crime legislation continues this feature. It adds to it by focusing on added penalties. (6) Over time, as laws and cases multiply, people can eventually be accused of libelous or seditious hate crimes involving vehement speech when they are biased against a group or merely do not like it or its policies. People can eventually be accused of hate crimes when they use hateful speech. Hate crimes laws are a seed that can sprout in new directions. (7) Perhaps hatred as a motivation will eventually be used as grounds for letting the criminal off the hook. Some clever lawyer will argue that the person’s hatred was uncontrollable or instilled by forces beyond his control.
I’d add that there is no limit to the number of human groupings one can think of by characteristics. At present some groups are covered by hate crime laws and others are not. This unequal treatment of the law will predictably generate pressure for extension of hate laws to more and more groups. Even now, hate laws can be very broadly written so that the hatred is directed against people who vary by such characteristics as race, sexual preference, religion, ethnic group, marital status, political ideology, age, and parental status.
Hate laws are a veritable Pandora’s Box. They can be used to tack on additional penalties or to gain leverage over suspects by threatening additional charges of "hate." It is rather easy to fake the appearance of a hate crime, apparently to gain sympathy for one’s group. The number of these incidents is on the rise. Should a columnist write a vitriolic essay against some figure, he might face not only libel charges but also hate crimes charges. Should someone make an obscene gesture toward someone else, the results may be hate crime charges. In one case in Philadelphia, Christians who were preaching to homosexuals at an outdoor homosexual event were arrested under the Pennsylvania hate crimes law. Suppose that Mel Gibson had taken a swipe at an officer, or suppose an officer had said that he had taken a swipe at him. This combined with Gibson’s remarks would have landed him in an even deeper hate-crime mess.
Suppose that Lew Rockwell, like Murray N. Rothbard, writes that he hates Max Lerner, or that he hates the state, which Rothbard also wrote. What if some enthusiast burns down Lerner’s house in a hate crime? With the existing crazy laws in which responsibility falls upon distant parties, Rockwell may be accused of complicity in a hate crime. Or suppose the state begins to use conspiracy theories combined with hate crime laws. He may be accused of conspiracy to create a hate crime.
A theory of hate crime laws
The externality theory is simply a clever rationalization. It doesn’t explain why we have hate crime laws because it is clearly a flawed theory. I hypothesize that hate crime laws are in good measure politically motivated. In my theory, power and political considerations explain the laws. There are many avenues for political factors. (1) Some groups feel better having these laws on the books. (2) Leaders of these groups benefit by pointing to these laws as some sort of accomplishment. Their standing as leaders rises. (3) These laws are a way of cementing a group politically and raising its overall influence on other laws and lawmakers. (4) If a gay group obtains legislation favoring gay marriage, this can cause more crime against gays. This in turn raises their demand for protection in the form of hate crime laws. (5) Hate crime laws become part of an overall political agenda. Homosexual and racial groups or their leaders, for example, will push for these laws to attain and cement political power both within their groups and over legislators who respond to voting blocs.
Under this theory, when pro-abortionists, Jews, the aged, Catholics, or some other groups get around to it, and some already have, they’ll seek these types of laws too. Legislators who are entrepreneurial and looking for voting blocs to support them will pander to blocs by proposing hate crimes laws that single out these groups. The political process is a two-way street.
Hate laws are a patch. They do not really reform the law in favor of the victim as they pretend to. If groups that have problems want real and lasting remedies, they have to go about it in a different way than by hate laws. For example, if gays wish to marry, the long-term solution is to get the state out of the marriage business. Failing this, if the state confers tax or economic privileges on married people and won’t recognize gay marriage, then the solution is to push for civil unions that give couples the same privileges. Or perhaps smart lawyers can dream up contracts that create units with tax privileges. If any group is faced with hatred, it is extremely doubtful that hate crime laws will ameliorate the problem. Most hatred is not manifested by outright crimes. Such laws will not stop speech. But they are clearly a move in that improper direction.
Hate laws are not socially healthy. Hate laws institutionalize society’s divisions. They perpetuate the faulty system by which pressure groups obtain special interest legislation. They build upon faulty legal theories, and we surely do not need more of those. They exacerbate society’s ever-present divisions. They have a host of problems and potential downsides.
The criminal justice system is already an under-performing segment of our society, and hate crime laws promise to drag it and society down further.
Michael S. Rozeff [send him mail] is the Louis M. Jacobs Professor of Finance at University at Buffalo.