Hate Crimes and Class Legislation

All but seven states have passed hate crime legislation. These laws boost criminal penalties if prosecutors can prove that the defendant chose to commit the crime against the victim because of a specified prejudice or bias by the defendant. These laws select certain prejudices to condemn and thereby promise enhanced protection for certain groups.

Which groups? The politically powerful, by definition. The Texas legislature, for example, recently strengthened its 1993 bias law by singling out six characteristics--no more, no less--that warrant additional prison time. More protection for homosexuals but not adulterers, more for the disabled and religious but not the bald and stout.

Is it all as silly as it seems? The only good argument for hate-crime laws is that criminal law must recognize the added harm suffered by minorities and society when victims are attacked because of race or other group characteristics. Crimes of hate must be punished more vigorously to "protect our communities from the terror of hatred and bigotry," as Texas State Senator Rodney Ellis put it.

Subverting Equal Justice

On the other hand, the most serious objection to hate-crime statutes is that they subvert the ideal of equal justice. The blindfold and scales of Justitia symbolize the highest standards of law: impartiality, generality, and uniformity. In our diverse society, only compelling evidence should allow Justitia to lift her blindfold and treat otherwise-identical crimes and victims differently because a particular prejudice was a motive in committing the crime. Since race-, class-, and gender-conscious policies are more likely to divide than unite, the proponents have a heavy burden of proof in demonstrating the efficacy of bias laws.

They have not met the burden. For all the hubbub, bias crimes are a small and declining share of all crimes. FBI crime data show that only one in 1,000 murders, one in 15,000 rapes, one in 3,000 robberies, and one in 1,300 felony assaults are motivated by bias. And claims that hate crimes are on the rise are false. If a principal aim of hate law has been to spread public awareness of special vulnerabilities, current data fail to establish such weaknesses.

Are bias crimes particularly heinous compared to identical crimes not motivated by bias? Not to Larry Elder, the KABC Los Angeles radio talk show host. "By all means," he writes, "we should prosecute bad conduct. But if I'm standing at an ATM machine and a Ku Klux Klansman hits me in the back of the head with a brick, the operative word is not 'Klansman.' It is 'brick.'"

In ancient Greece, Thucydides stated, "Our laws secure equal justice for all," and Thomas Jefferson wrote in our Declaration of Independence, "All Men are created equal." Andrew Jackson declared that when the laws undertake to add "artificial distinctions," then we have a right to complain of the injustice of government. I guess we can dismiss these ideals because they were enunciated by dead white males who had been slave holders.

Hate-crime legislation trades the enlightened ideal of equality before the law for the divisiveness of identity or class politics: All men are equal but some are more equal than others. Down this road, of course, ultimately lies disaster for a multiethnic society.

Yet many policies have proceeded recklessly down this path. Thanks to affirmative action, for example, one-time champions of non-discrimination and merit become champions of "good racism." As Arthur Shenfield put it, "The intellectual confusion of our times is indeed so remarkable that these measures are thought to be not merely consistent with equality before the law, but necessary to make it a reality."

Media coverage gives the impression bias crimes are all about rampaging white supremacists and anti-gay bigots. Colin Ferguson, the Long Island Railroad commuter train mass murderer, and many other cases show otherwise. In fact, blacks are two or three times as likely to commit crimes of racial bias as whites, though doubtless, even this fact will be fodder for those who see a racist criminal justice system in need of hate crime penalties.

In 1963 President Kennedy said, "Race has no place in American life or law." Today, the bigotry-is-everywhere crowd pushes more and more class legislation. Opponents are smeared as racists and homophobes and the e pluribus unum color-blind society sails from view. Sad, isn't it?

Morgan Reynolds is director of the Criminal Justice Center at the National Center for Policy Analysis.

For more information ...

Testimony of Jeanine Ferris Pirro. The Westchester, New York District Attorney supports federal hates crimes legislation. (U.S. Senate Judiciary Committee, May 1999, 2pp.)

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