When word broke of the Kansas murders by 73-year-old White Supremacist Frazier Glenn Cross, the cries for hate crime prosecution immediately rang out. After all, if anyone deserved to be prosecuted for a hate crime, it was this killer.
As Judge Kopf notes, the murders of three people were the height of irony.
[A] former “Grand Dragon” was going on a shooting spree at the Jewish Community Center and nearby retirement village in Kansas City. The shooter killed three people. Two were Methodists and one was Catholic.
The oldest victim was a physician and a grandfather who was taking his grandson, the second victim and a 14-year-old singing sensation, to an audition at the Center. The third victim was a Catholic woman who worked as an occupational therapist assisting the visually impaired. She was visiting her mother at Village Shalom. Thankfully, no Jews were killed or injured.
To any sane person, that the shooter set out to slaughter Jews but mistakenly ended up mowing down Christians stretches the meaning of irony to the breaking point.
He goes on to note that it is anticipated that Cross will be “charged federally under 18 U.S. Code § 249,” the hate crime enhancement. The statute provides that a person convicted of a hate crime
(ii) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if—
(I) death results from the offense;
There is no dispute that this crime, assuming all the information is accurate, is a hate crime in its most virulent sense, and that Cross, if guilty, is as despicable and repugnant a human being as can be. But what does this have to do with the fact that he murdered three people?
We hype up crimes with feel-good laws designed to massage our souls to express our antipathy for not just the crime, but the motive for the crime. Are we not sufficiently angered by the senseless murder of three people?
The victims of this tragedy are hugely sympathetic, and they deserve that sympathy. But if the victims had been recluses, sitting in the dark drinking cheap whisky and doing nothing to help any other person or contribute to society, would their murders have been shrugged off as inconsequential?
And should Cross be convicted of these hate crime murders, will his sentence of “any term of years or for life” be any different than the sentence imposed for three murders otherwise? Or will we just hate him that much more because of the reason he committed these murders?
The words of Lee Rowland keep coming back to me:
”Criminal law is a blunt instrument for regulating human dysfunction.”
We prohibit the conduct of intentionally killing a human being. Criminalizing the act of murder with penalties as severe as society deems proper impose, is a proper use of this blunt instrument. But that’s not good enough. We must superimpose an additional crime, the commission of murder with hatred. As opposed to those murders that happen with more benign motives?
Years ago, Jerralyn Merritt at Talkleft pondered where we go from here, when we really, really hate the criminal. Would he be sentenced to life plus cancer? The abandonment of the criminal law as a means of controlling conduct that society finds unacceptable, and instead using the criminal law as a weapon to vindicate feelings about the criminal, is a dangerous path.
In the case of a murder, it’s a pointless effort to hype a crime as motivated by hate, as it has no impact on sentence and merely adds a level of rhetoric that makes it harder, if not impossible, to not let emotions influence the requisite cold, detached view of the evidence. Whether the evidence against Cross is overwhelming is irrelevant; the law doesn’t apply only to him.
What hate crime laws do is feed into a dangerous belief that this isn’t about the conduct, but about how much we hate the criminal for being a hater. It’s vindicating public outrage. It’s wallowing in emotion when the thing we need most is detachment.
If there was no hate crime law, people would still hate Cross, for what he did and why he did it. No law can prevent people from feeling as they do. And that, ironically, goes for people like Cross, anti-Semitic and white supremacist, who will hate as he sees fit. And should Cross be convicted of this triple murder, he will be punished for it as he should be.
By enacting laws that institutionalize emotion, that inject societal hatred into the view of whether a person is guilty of the crime charged, we swing that blunt instrument with our eyes clouded and filled with tears. We are so angry, as the law says we must be, at not just the crime, but the purpose behind the crime, that we cannot step back and make the unemotional, detached assessment of guilt that due process demands of us.
This is pure self-indulgence, and it has become a feature rather than a bug. The worse the crime, the more horrible the tragedy, the more we need to separate ourselves from emotion so that we can provide detached focus on the law. Once emotion becomes the law, we are half-way down the path of just stringing him up because we hate the criminal so much.