There's little to like about hate-crime laws
The best argument against "enhanced penalty" laws is the constitutional one. In the United States, we are taught, you can be sent to prison for what you do but not for what you think. Not only that, if government picks and chooses which crimes are the most serious based on the motivation behind them or the ethnic background of the victim, that is a violation of the 1st Amendment, isn't it?
That was the message of a celebrated 1992 decision in which the
U.S. Supreme Courtstruck down as a violation of the 1st Amendment a St. Paul, Minn., "bias-motivated crime ordinance," under which a white teenager had been prosecuted for burning a cross on the lawn of a black family.
The ordinance said in part: "Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender, commits disorderly conduct and shall be guilty of a misdemeanor."
Writing for the court, Justice
Antonin Scalia said that language was too broad. Although it was permissible for St. Paul to punish "fighting words" (and fighting symbols like a burning cross), the law violated the 1st Amendment because it picked and chose among which "fighting words" could land you in jail — those insulting someone on the basis of race, for example, but not sexual orientation or membership in a labor union.
The decision striking down the ordinance was unanimous and seemed likely to doom not only "pure" ethnic intimidation laws such as St. Paul's but also "piggyback" hate-crime laws (in which the penalty for a crime is enhanced, depending on the motivation behind it).
A year later, however, when a lower court cited the St. Paul decision in striking down a Wisconsin hate-crime law, the Supreme Court refused to follow its own logic and allowed the state's hate-crime law to stand. Interestingly, the decision in the Wisconsin case upheld the doubling of a sentence for a black man convicted of inciting violence against a white victim.
Hate-crime laws pose another problem. Call it the
Jimmy Durante factor. Durante was the 1940s comedian whose catch phrase was: "Everybody wants to get into the act!" And once legislatures began to enact hate-crimes laws, everyone — that is every constituency with political clout — got into the act of agitating to be included in hate-crime laws.
In the 1992 cross-burning case, Scalia noted that St. Paul didn't prosecute "fighting words" based on sexual orientation, but California's hate-crime law has no such loophole. It provides enhanced penalties for "bias-motivated violence and intimidation" based on the victim's "race, ethnicity, religion, sexual orientation, or physical or mental disability." New York's hate-crime laws adds "age" to the litany of protected categories. Can veterans be far behind?
The paradox is that as the list of protected groups gets longer and longer, the law approaches a situation in which every crime is a hate crime.