Posted by
The Old Whig on Tuesday, May 15, 2007 2:31:07 AM
Hate Crime laws are philosophically unsound and violate certain Supreme Court rulings. George Will's
column of Sunday, May 13, explains much of my thoughts concerning the evil of hate crime laws. He points out that juries will need the capacity to read minds in order to convict. And he is right.
How is a hate crime determined? Mr. Will points out that hate crimes are supposedly
"committed because of, not merely accompanied by" hateful thoughts. How is that to be determined? Unless prosecutors and detectives are mind-readers, the cause will always be uncertain.
The potential for abuse is huge. A few years back a young man was sentenced to 20 years in the Utah State Penitentiary for burning a cross on the lawn of a mixed-race family. Granted, what he did was stupid, wrong, and disgusting, and most likely he was drunk when he did it. But the prosecution was never able to prove hate in his case. The act itself, they argued, was sufficient evidence of hate to justify the additional penalty. So the argument is used to prove itself.
Our system of laws is based in part on the notion that laws modify behavior, which over time modifies thought. An example of this kind of thinking is found in the Supreme Court ruling which upheld the Edmunds-Tucker Act in the late 1800's. The Court ruled essentially that belief is not punishable, but the physical manifestation of belief is. They thus applied a prohibition against polygamy to the Mormons, with the implication that they could believe in polygamy, they just couldn't practice it.
In recent decades, however, there has been a movement to criminalize thought regardless of action. Beginning in the 1960's, the effort to remove unwelcome thoughts from society has grown steadily. Its culmination is seen in these attempts to create legislation against hate. But there numerous problems to be overcome if these laws are to be sound.
- Justice is incompatible with the enforcement of hate crime laws. Justice is supposed to be blind, meaning it is to be equally applied. If we punish one person for committing a crime without hateful intent differently than we punish another person who has committed the identical crime, but with hateful intent, we are violating the principles of justice which do not recognize motive as a crime.
- Hate crime laws criminalize thoughts and beliefs that are unpopular, but may not be hateful. This opens up many religious groups to prosecution merely for believing the statements of the Bible which appear to condemn homosexuality as wrong.
- Hate crime laws create special protections for certain groups of people. When these laws begin to punish religious groups for speaking out against the gay lifestyle, for example, then gays will be afforded special protection by the laws. That violates the Equal Protection clause of the 14th Amendment and the principles of Justice. But the reverse will not obtain; religious groups will continue to be persecuted without government protection.
- Hate crime laws are ex post facto laws. If someone commits a hate crime, most likely he or she has held those thoughts or beliefs since before the enactment of the law. Technically, he or she could not be convicted and the law must be overturned because of that one fact. But public pressure for hate crime laws is so great that the legislators will ignore this constitutional prohibition.
But, if we can pass a law which punishes a person for having certain thoughts yesterday, before the law was passed, what is to keep us from passing a law which anticipates the potential for crime in people who have hateful thoughts? Why could we not then punish people for having the thoughts themselves, even before the commission of a crime? Would that not prevent those crimes in the first place? Yes, but doing so would completely turn our justice system upside-down.
These last arguments are the ones which make the possibility of hate crime laws so frightening. The passage of even one such law is a step into a hellish future. Even more concerning is that Congress has not the wits to make these arguments, much less to conceive them.