In a fascinating op-ed in the New York Times, former executive director turned columnist, Bill Keller writes some sobering truths about our embrace of hate crime legislation in light of the deaths of Tyler Clementi and Trayvon Martin. Much to the surprise and consternation of many Times readers, Keller doesn’t toe the line.
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.
Today the notion is embedded in our culture. Almost every state has some variety of hate crime law.
The murders of Shepard and Byrd were horrific. As an impetus for trying to wipe out a state of mind that gives rise to the motivations to commit such shockingly heinous acts, it’s hard to imagine anything stronger. But as is invariably (and thankfully) the case, conduct this bad is rare. Prejudice is not. And so we have a cultural notion, with some very serious law backing it up, in search of culprit.
From this vantage point, Keller recognizes that a well-intended goal doesn’t necessarily mean that it’s a good idea.
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.
Many see these laws as resembling something from an Orwell dystopia, but Keller’s reasoning similarly leaves a nagging sense that it’s about to fly off the rails. While the final sentence speak to punishment for “thinking those vile things,” he sneaks in a characterization about “criminalizing a defect of character.”
Keller later explains, relying on a seminal article by Heidi Hurd,
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…Hate crime laws, she wrote, crossed that line: “The law now regulates not only what we do, but who we are.”
Hurd takes a huge, and unsupported, leap when she characterizes prejudice as “who we are.”
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.
And this is where Keller follows Hurd off the cliff, crashing into the intellectual gorge below. We can indeed choose not to be prejudiced or biased. We are senscient beings, to a greater or lesser extent, and have the capacity for thought and reflection. We can learn. We can come to realizations that prejudices ground into our heads from the moment of birth are wrong, nonsense we can overcome and surpass.
Skin color may be immutable. Prejudice against skin color is not.
Keller’s point about the criminalizing thought, even bad and evil thought, without regard to how that manifests in our conduct is absolutely right. We remain a bundle of prejudices, essentially all of us with suspicions about people unlike us, that create our default state of mind when considering those “others.” Admit it or not, it frames our thoughts, which in turn guides our conduct. And yet we maintain throughout the capacity to decide whether to shake hands with the guy whose skin color is different or shoot him, to decide he is a potential friend or threat.
The notion that we are not responsible for the conduct that follows our prejudices is absurd. We make choices every second of every day of our lives. We can choose to live with a mind so clouded by hatred toward others as to believe what was done to James Byrd is acceptable. We can also choose not to. The ability to think is one of the distinguishing features of humanity. That some fail to use it doesn’t mean they can’t.
Had Keller stuck to the premise that criminalizing thought rather than deed was at the core of his nagging sense that hate crime laws are wrong, his foundation would be firmer. To absolve people of their prejudice by calling a character defect, a if there was nothing they could do about it, isn’t necessary. People walk around thinking bad thoughts all the time, but choose not to act upon them. People walk around thinking bad thoughts, and then realize that they’re wrong and change their thinking.
And then there are the people who committed heinous, disgusting crimes against Shepard and Byrd. Forget punishing them for their thoughts; punish them for their deeds.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
“Hate crime” laws (how Orwellian is that, by the way?) are an obscenity and completely pointless. They are absolutely useless as a preventative, since assault and murder are already against the law and everyone knows that. If someone is going to kill someone else because he is black or white or gay, etc., and the law against murder isn’t enough to dissuade him, is yet another “law” going to change his mind? And if the State is going to execute a person (or lock him away for life) for committing a murder, then how is adding more charges for his supposed “motivation” going to actually change anything?
I think you may be missing an element in your argument.
Yes, one can change the mindset in which one was raised, but only if one has the opportunity and/or incentive to do so. One also has to have the opportunity to realize that the homegrown mindset, the default, is possibly not true. In other words, I think your argument assumes a level of thoughtfulness and exposure to other ideas that may not be as universal as you state.
I don’t think that a kid, named Hitler by his parents, is going to have an easy time seeing the error of his ways. Nor do I think that one raised to view homosexuality as an abomination, who lives in an environment that never challenges that view, is necessarily going to come to a state of enlightenment that leads to contrary conclusions.
Sure, if one goes to a university, one is exposed to different ideas about things. If one leaves his community and moves to one that has more diversity in both population and philosophies of life, there’s the opportunity to change.
But if one does not have to opportunities to even see that there are valid differences of opinion on assorted matters, from where does the wisdom arise?
I have a much longer list of reasons than you. Some people are just plain stupid. The problem is that once we chalk it up to a character defect, they’re no longer responsible for their prejudice-driven actions. After all, stupid people can’t be expected to have the metacognitive ability to realize they’re stupid. They’re subject to the Dunning-Kruger Effect. It’s not their fault.
But as long as you breath, you own both your prejudice and your actions. Even if there are plenty of reasons why you have that prejudice or engaged in those actions. Prejudice is not an immutable characteristic, and crimes committed are no less (and no more) crimes because of any ugliness inside your head.
Hate crime enhancers don’t punish thought. The enhancements are for stating or displaying animus towards a protected class while committing the underlying offense.
Scenario 1:White klan member punches black man while being silent.
Scenario 2:White man married to black female punches black man while reflexively yelling the “n” word.
Scenario 2 may have no deliberation by the batterer but the words themselves are enough evidence to charge a hate crime enhancer, whereas scenario 1 lacks evidence to charge the same.
Thus, it seems the statutes are more about increased harm to the protected class victim (broken nose plus broken feelings).
I don’t think the specific intent behind violent crimes should affect the charge, and arguably the laws are not about thought but about the feelings of the victim.
I know you hate legislation that 1) punishes thought and 2)gives protection to feelings. Do you think maybe hate crime laws are less about thoughts held by offenders and more about feelings of victims?
On a practical level, I think you make a very good point. However, if a White KKK member punches a black man while being silent, want to bet he’s charged with a hate crime if his connection to the Klan is known? But yes, the sympathy lies with the protection of hurt feelings of a member of a suspect class, and it’s likely the primary motivator behind charging a hate crime rather than charging a crime based on conduct alone.
I’d be willing to accept that if one were to clearly have had an opportunity to learn why one’s beliefs (non-religious, of course, as they get special protections) were odious to society, then perhaps hate crime penalties might be justified.
I’m talking about the ones who really never got out of Hicksville, who are stupid, to whom no argument of an alternative view never occurred. Not only might reprehensible opinions seem uncontroversial, but coming damn close to innate.
This is among the many reasons why I really dislike hate crime edicts. To enforce them justly requires too much assumption of what’s going on in the mind of another. If this is the standard, then why not simply assume mens rea in all criminal cases? “We know what he was thinking…”
Obviously, you’ve never tried a conspiracy case.
Common-law based legal systems have always considered that specific intent is a vital element in determining a charge, in our system at least, the mens rea (criminal mind) of an offense is as critical an element for the state to prove as the actual criminal act itself. The difference between manslaughter and murder is precisely that of specific intent.
What hate crime enhancements do, is criminalize the motivation of the offender, not his intention. The klan member and the other individual in your example may have had exactly the same intention (to flatten the nose of someone they dislike), but only the klansman’s act is motivated by his hatred of the protected class.
My understanding of the reasoning behind the hate crimes enhancement (again, Canadian system) is that crimes committed out of a motivation of hatred for a protected class in some way offend against the class as a whole, rather than just the individual victim. If people fear that they might be the victims of assault because of their race, religion, sexual orientation or other unchangeable personal characteristic, (as opposed to the unprotected ground that they might get assaulted because they are an unpleasant or offensive individual) this creates an atmosphere of fear or terror among the protected class.
“The notion that we are not responsible for the conduct that follows our prejudices is absurd.”
Sure, but I don’t see what it has to do with whether one can choose not to be prejudiced or biased. If I can’t help being biased against people with squeaky voices, does that mean I can legally go around punching them?
You have miraculously drawn the exact opposite conclusion that logic would dictate. Not at all easy to do. Bravo!