Hate Crimes

I've been sort of mulling over this issue for a couple of days, since I saw this post by Matt at The Malcontent. I suppose I was thinking of hate crimes laws as one of those things that are probably good but seem to have a lot of baggage attached. I've seen arguments on the right against such legislation that never seemed quite to jell. I think this passage from Matt's post highlights some of the misconceptions -- or misrepresentations -- that seem to be prevalent on the right:

The sine qua non of the gay-rights movement has been "equality." Yet hate-crimes laws are the very essence of inequity. In singling out favored groups for protection, you must necessarily afford lesser protections to others. Proponents will tell you that a straight white male could theoretically be the victim of a hate crime, but in practice, it is rarely if ever the case. With a single piece of legislation, "hate crimes" undercuts everything we have tried to do to demonstrate to the rest of America that we want equality, not "special rights."

There are two elements to hate crimes laws, as there are to civil rights laws or any other legislation that denotes a class of citizen as singled out for protection. The most basic is the concept of "remedy": "harm" and "remedy" are so basic to American jurisprudence that I think it's safe to say it couldn't exist without them. People tend to forget that. Remedy is an attempt to right a wrong, in the case of hate crimes, one that is or has been countenanced by society at large. Absent this, hate crimes laws make little sense, and I can see how one could question their legitimacy. (This also applies to things like affirmative action, the infamous Title IX, and similar legislation that grew out of the civil rights laws of the 1960s.) It's simply that these laws are designed to curtail and hopefully repair as much as possible the effects of historic discrimination against certain groups. It's not that these groups are "favored" by the law. It's that they are recognized as having been historically disfavored and the law recognizes this as a basis for action. I think Matt's comment about a straight white male as a potential target of a hate crime makes my point: in practice, a straight white male is seldom the target of a bias-motivated attack. The point is, straight white males are not historically the victims of prejudice. (And it seems that in those areas we designate as "hate crimes," they are much more likely to be the perpetrators.)

This brings in the second element, which is particularly relevant to hate crimes legislation: as a matter of social policy, the government is saying that we will not tolerate violence based on irrational prejudice. In a society founded on the idea of rule by rational laws, this should come as no surprise. We want everyone to be treated equally. This is something that is intrinsic to our society, a basic component of our national ideals: not only do we want all to be equal before the law, but we want all to be equal in our daily lives, free of the fear that comes of being a target, not for something you've done, but just because of who you are. I think David Neiwert said it better than I can:

Hate-crimes laws are indeed relatively new laws. But they represent something that I think is a long thread running through our history, something many of us almost instinctively understand -- that is, the ethical imperative to stand up against the bullies and the thugs and the nightriders, because their whole purpose is to terrorize, oppress and disenfranchise the people they deem different or "not American."

(I'm not going to dwell on the idiocy of a statment like "In singling out favored groups for protection, you must necessarily afford lesser protections to others. " That should be self-evident. It echoes quite nicely the claims by the right that "everyone is protected against crime" [which is on its face laughable] and "giving rights to others takes away your rights," complete with semantic codes such as "favored groups.")

I've made the point elsewhere that "hate crimes" are not independent entities. They are simply a designation that allows for greater resources to be brought into play in investigating crimes motivated by bias. It's an attempt to bring motivation into play in the investigation and punishment of a crime, which, as Matt points out, is nothing new -- the difference between first degree murder and manslaughter is all about motivation. In the case of bias crimes, it's the specific motivation itself that is cause for concern, because of the fact that crimes motivated by bias are likely to be more violent and more extreme than others. (My source for this is Frederick Lawrence, from his book Punishing Hate: Bias Crimes Under American Law, as quote by David Neiwert in the post linked above.) "Hate cime" is also a concept that is not always understood clearly or applied appropriately. (For a prime example of "hate crime" run completely amok, see this story. Matt's attempt to conflate incidents like this with the attitude of all supporters of hate crime legislation is spurious. 'Nuff said.)

Perhaps hate crimes laws are not the best way to combat prejudice, but until we come up with something better -- or until we're all perfect -- I think we do have a real need for them, particularly in a country where tolerance is controversial. It doesn't really help Matt's argument that his position is echoed even more vociferously by the radical fringe with definite racist and homophobic overtones. (If you object to my including "racism" as part of the right's arsenal, please go back and read anything that Michelle Malkin has written on immigration.) I doubt very much that he wants to place himself in that camp. For a chilling analysis of the "religious" right's response to hate crimes laws, see this post by David Neiwert. I recommend that you click on the links at the bottom of this post, "Who Would Jesus Bash?" Neiwert has done some extraordinarily careful and thorough work on this topic.

And after looking at all this and finally thinking about it seriously, it's clear to me, at least, that aside from any personal considerations, and particularly now more than any time in the last century, we do need hate crimes laws. Badly.