Hate Crimes, Part II

Managed to lose a long, detailed post on hate crimes, thank to the weird interface between my computer and the Internet. A reconstruction.

Andrew Sullivan is convinced that the president's threatened veto of the new hate crimes bill, just passed by the House, is based on the homophobia of his base. I was somewhat dubious when he first brought it up, but he does make a case. Bush claims no prejudice, but since we've seen ample evidence that truth is an infrequent visitor to this administration, I'm not giving those protestations much credit. Since his base is all he has left, that makes a lot of sense -- he has no one else to cater to. I don't think we can take quotes from James Dobson as completely indicative of the White House's thinking, but we know where the pressure's coming from. (As though this were some sort of surprise).

Frankly, I think the president's veto threat owes as much to the fact that this is a bill passed by a Democratic Congress as to the moral repugnance of mandating stiffer penalties for crimes motivated by bigotry. It's noteworthy that the first three vetoes of his presidency have all been on bills with broad bipartisan support.

I am still trying to find cogent arguments against hate crimes laws, and everything I've found so far leaves out what, to me, are some of the most important concepts involved. Sullivan, for example, makes passing reference to such things as "its chilling effect on free speech, its undermining of the notion of equality under the law, and so on." These accord in general with the arguments I've seen against hate crimes legislation. What seems to be missing is, first, any sense of history, and second, a concept basic to our traditions of jurisprudence, which is to say "harm" and "remedy," which go together like (dare I say it?) lesbians and children. Robbie at The Malcontent, for example, in this post, attempts to draw a parallel between the law as an instrument of injustice and hate crimes legislation:

In criminal convictions and sentencing, it is vital that private moral preferences be discarded in favor of equal treatment under the law. The Supreme Court rightly recognized that a disapproval of homosexuality had no place in determining singularly harsh punishment. When a crime is committed, all people should be punished equally without regards to whether or not we feel certain moral dimensions are particularly reprehensible.

So it is with hate crimes laws. Murder is murder. However, gay rights groups and others would have us believe that murder is especially bad when motivated by a nebulous philosophy of hate. It isn't enough to sentence a criminal according to standards currently outlined in law. No, like the Kansas courts, we must "send a message" that disdain for minority groups is deserving of more aggressive punishment. We must substitute the impartiality of law in favor of our own political and moral beliefs.

The first thing that jumps out at me is that hate-crimes legislation does not embody anyone's private moral preferences. In fact, it removes those preferences as a basis for condoning certain crimes. It is, quite openly, a statement of social policy: bigotry is not something that we consider beneficial to our society. It neither conforms to our stated ideals nor does it contribute to the well-being of our citizens. Increased penalties for bias crimes are one way of making that clear.

The second thing that jumps out is that hate crimes laws do not deal with "nebulous philosophies of hate." There is a bit of probably unintentional misrepresentation here. Hate crimes laws deal with specific crimes perpetrated against specific groups, not with nebulous philosophies. The groups protected are those that we recognize as historically subject to mistreatment because of bias. And, in case anyone still has doubts, it's pretty well accepted that bias crimes tend to be more violent, their victims are more likely to wind up dead or seriously injured, and their effects reach farther into the community. Both aspects of the law come into play here: harm and remedy and social policy. The harm is obvious; since remedies for those who are dead are pretty much moot, all we can do is to insist that we exact the maximum penalty for future incidents in the hope of deterring them.

Matt also has posted on this issue at The Malcontent:

A corollary to this, of course, is hate-crimes laws: If we are going to treat the perpetrators of different crimes disparately, depending on the favored group being victimized, then the groups “protected” by hate-crimes legislation have been granted rights that aren’t conferred on the larger population.

If “equality” is at the heart of the gay-rights agenda, then some of the proponents are being highly selective in its application.

The "special rights" argument is one that has never made much sense to me. I suspect that's because of its dubious history as a buzz-word for opponents of equality. We first saw it, as I recall, used against affirmative action (another of those remedies that is perhaps not the best, but the only one we seem to have available), and it has since become a staple of the religious right's war against gay equality. (The degree of double-talk here is breathtaking. The "special rights" argument is, as has been pointed out by Sullivan and others, an argument for removing religion, race, and national origin from the mix, which I don't see anyone from the Dobson Gang advocating.) It literally has no meaning in this case, since "rights" are not in question here -- once you're dead, you're dead, and the whole subject of rights is moot. It is, really, eliminationist rhetoric of a particularly insidious sort, based on the idea that there are only so many rights to go around and if someone else gets some (assuming, of course, that someone is "undesirable" in some way), that means less for you. It's always seemed to me that freedom is like love: the more you have, the more you can create. (If you want a thoroughly documented and thoughtful exposition on the social context of hate in this country, see David Neiwert's series on "Eliminationism in America" at Orcinus. It's another one of those sidebar things that he does.)

The third main point that seems to come up with regularity is what Sullivan calls the "chilling" effect on free speech. It's one that Matt addresses in his post, and I think the argument is pretty much off point. First, I am never persuaded by arguments from anecdote. For any general rule, you can find an exception, but that doesn't mean that the exception necessarily disproves the rule. Second, the examples that Matt cites really have nothing to do with hate crimes laws. They are, if anything, examples of orthodox PC-ism run amok and school "zero-tolerance" policies applied without common sense. In spite of the religious right's continued trumpeting about "thought control" and the like, this is another point that really has no basis. No one is being punished for their nasty thoughts. Nor are they being punished for their nasty words. They are being punished for perpetrating violence against certain classes of people. The motivation for a crime is always relevant. Is anyone arguing that the penalties for premeditated murder should be the same as the penalities for manslaughter? Seriously? The difference is motivation.

So far it seems that the arguments against hate crimes laws rely on dismissal of some fundamental concepts in law and a refusal to confront history. If carried to their logical end, these arguments could, I think, quite plausibly lead to the conclusion that violent crimes against minorities are perfectly fine, since that's what we've always done.

Dale Carpenter and Marty Lederman have some comments on this particular bill, which I will try to get to at some point. (Or not -- as a lawyer, I'm a great philosopher, and they make their arguments better than I can.)

Related post: Hate Crimes

Update: Speaking of Dave Neiwert, see this post on hate crimes and the arguments against. It's a very strong post, which in part reinforces my arguments above and in part brings in some new directions. The following post has more.