4um: The Case Against Hate-Crime Laws

Title: The Case Against Hate-Crime Laws
Source: LRC
URL Source: http://www.lewrockwell.com/rozeff/rozeff95.html
Published: Aug 18, 2006
Author: Michael S. Rozeff
Post Date: 2006-08-18 20:27:30 by christine
Keywords: None
Views: 3551
Comments: 76

The term "hate crime" is new. The laws against hate crimes are new. Are they a good development or not?

Hate crimes seem superfluous. Why should the traditional crimes such as assault or arson be supplemented by new crimes such as hate-assault and hate-arson? The victim receives the same injuries in either case. If the damages are greater and juries know this, the remedies can be altered accordingly. Why go through the added difficulties of proving that the motivation of the crime was to injure someone because of hatred? Is anything gained beyond labeling the criminal as a person who hated?

Hate crimes carry greater penalties. Hate in and of itself becomes an additional crime when it occurs in conjunction with an ordinary crime. Arson is a crime. The new crime is Hate + Arson. If you intend arson, don’t do it because you hate the person who owns the building. Do it because you like fires or want to collect insurance money. Hatred is deemed punishable whereas liking fires or wanting to collect insurance money fraudulently are not punishable. Does this make sense? Why is hatred special? Why should the law punish hatred?

One theory behind hate crime legislation is that hatred harms others who are not direct victims of the criminal’s crime. There is an externality. If someone paints a swastika on a synagogue, if someone paints a corpse on an abortion clinic, or if someone shoots a Mexican immigrant, all synagogues, all abortion clinics, and all Mexican immigrants are said to be victimized. They are said to be intimidated. The crime is greater, and so the penalty should be greater. That’s the theory.

The state does not have to prove that the crime is greater in the sense of harming many others. It only has to prove that hatred is present. The law automatically assumes that many others have been harmed because it assumes there is an externality. There is no way to prove harm to others because there is no physical injury to them or their property. The extension of the crime to others is supposedly an implication of the fact that it was motivated by hatred.

The externality argument does not hold up. By this theory, an arsonist who sets fires is not presumed to scare other property owners that their property may be next to be burned. A robber who has held up 5 people in a neighborhood, motivated by the desire to get their cash, is not presumed to scare or intimidate anyone else in the neighborhood.

Suppose hatred is the sole motivation of a crime. So what? A crime is a crime as far as the victim is concerned. Its severity is what it is and justice must deal with that fact, no matter what the motivation was. As against this, motivation or similar considerations seem to be important in many areas of law. More accurately, who the perpetrator is and what his background is may shed light on whether the crimes were premeditated or not. If a drunken driver kills a child, the child is just as dead as if a serial killer did the deed. The state’s law distinguishes these crimes. Should it? Should an accident count the same as an intentional crime? Probably not. But while there is no guilty mind (no intent or no malice aforethought) in a drunk driver who kills, there is severe damage, as bad as it can get, and justice has to consider both. These cases are not easy. Perhaps the best answer is to let the jury decide the remedies. Don’t let legislators tie the hands of jurors.

Are these situations analogous to hate crimes? Suppose two arsons are premeditated. The motive for one is psychological gratification and the motive for the other is hatred. It seems impossible to argue for a hate-arson and not a gratification-arson. This means that defining a crime by motivation is a false distinction or one that lacks generality and consistency. It would seem that what is done in other areas of the law to examine intent does not apply to hate crimes. Intent and motivation are two different things.

There are quite a few other reasons to be skeptical of hate laws. (1) Proving that hatred is a motivation is costly and difficult. (2) Attributing motivation to a specific emotion can be quite subjective. It allows a jury or a judge to penalize criminals on subjective grounds. This can be a source of injustice. (3) Harm to others than the actual victim is not actually proven. It is presumed, and the criminal is punished for this unproven crime. This is unjust. (4) The externality theory is faulty because all sorts of crimes may intimidate non-victims or potential victims. If people are to be punished using a theory of crime, that theory should be broad enough and accurate enough to be fair over all similar cases. (5) Restitution to victims is typically disregarded by our criminal justice system. Hate crime legislation continues this feature. It adds to it by focusing on added penalties. (6) Over time, as laws and cases multiply, people can eventually be accused of libelous or seditious hate crimes involving vehement speech when they are biased against a group or merely do not like it or its policies. People can eventually be accused of hate crimes when they use hateful speech. Hate crimes laws are a seed that can sprout in new directions. (7) Perhaps hatred as a motivation will eventually be used as grounds for letting the criminal off the hook. Some clever lawyer will argue that the person’s hatred was uncontrollable or instilled by forces beyond his control.

I’d add that there is no limit to the number of human groupings one can think of by characteristics. At present some groups are covered by hate crime laws and others are not. This unequal treatment of the law will predictably generate pressure for extension of hate laws to more and more groups. Even now, hate laws can be very broadly written so that the hatred is directed against people who vary by such characteristics as race, sexual preference, religion, ethnic group, marital status, political ideology, age, and parental status.

Hate laws are a veritable Pandora’s Box. They can be used to tack on additional penalties or to gain leverage over suspects by threatening additional charges of "hate." It is rather easy to fake the appearance of a hate crime, apparently to gain sympathy for one’s group. The number of these incidents is on the rise. Should a columnist write a vitriolic essay against some figure, he might face not only libel charges but also hate crimes charges. Should someone make an obscene gesture toward someone else, the results may be hate crime charges. In one case in Philadelphia, Christians who were preaching to homosexuals at an outdoor homosexual event were arrested under the Pennsylvania hate crimes law. Suppose that Mel Gibson had taken a swipe at an officer, or suppose an officer had said that he had taken a swipe at him. This combined with Gibson’s remarks would have landed him in an even deeper hate-crime mess.

Suppose that Lew Rockwell, like Murray N. Rothbard, writes that he hates Max Lerner, or that he hates the state, which Rothbard also wrote. What if some enthusiast burns down Lerner’s house in a hate crime? With the existing crazy laws in which responsibility falls upon distant parties, Rockwell may be accused of complicity in a hate crime. Or suppose the state begins to use conspiracy theories combined with hate crime laws. He may be accused of conspiracy to create a hate crime.

The externality theory is simply a clever rationalization. It doesn’t explain why we have hate crime laws because it is clearly a flawed theory. I hypothesize that hate crime laws are in good measure politically motivated. In my theory, power and political considerations explain the laws. There are many avenues for political factors. (1) Some groups feel better having these laws on the books. (2) Leaders of these groups benefit by pointing to these laws as some sort of accomplishment. Their standing as leaders rises. (3) These laws are a way of cementing a group politically and raising its overall influence on other laws and lawmakers. (4) If a gay group obtains legislation favoring gay marriage, this can cause more crime against gays. This in turn raises their demand for protection in the form of hate crime laws. (5) Hate crime laws become part of an overall political agenda. Homosexual and racial groups or their leaders, for example, will push for these laws to attain and cement political power both within their groups and over legislators who respond to voting blocs.

Under this theory, when pro-abortionists, Jews, the aged, Catholics, or some other groups get around to it, and some already have, they’ll seek these types of laws too. Legislators who are entrepreneurial and looking for voting blocs to support them will pander to blocs by proposing hate crimes laws that single out these groups. The political process is a two-way street.

Hate laws are a patch. They do not really reform the law in favor of the victim as they pretend to. If groups that have problems want real and lasting remedies, they have to go about it in a different way than by hate laws. For example, if gays wish to marry, the long-term solution is to get the state out of the marriage business. Failing this, if the state confers tax or economic privileges on married people and won’t recognize gay marriage, then the solution is to push for civil unions that give couples the same privileges. Or perhaps smart lawyers can dream up contracts that create units with tax privileges. If any group is faced with hatred, it is extremely doubtful that hate crime laws will ameliorate the problem. Most hatred is not manifested by outright crimes. Such laws will not stop speech. But they are clearly a move in that improper direction.

Hate laws are not socially healthy. Hate laws institutionalize society’s divisions. They perpetuate the faulty system by which pressure groups obtain special interest legislation. They build upon faulty legal theories, and we surely do not need more of those. They exacerbate society’s ever-present divisions. They have a host of problems and potential downsides.

The criminal justice system is already an under-performing segment of our society, and hate crime laws promise to drag it and society down further.

All Americans have a stake in an effective response to violent bigotry. Hate crimes demand a priority response because of their special emotional and psychological impact on the victim and the victim's community. The damage done by hate crimes cannot be measured solely in terms of physical injury or dollars and cents. Hate crimes may effectively intimidate other members of the victim's community, leaving them feeling isolated, vulnerable and unprotected by the law. By making members of minority communities fearful, angry and suspicious of other groups -- and of the power structure that is supposed to protect them -- these incidents can damage the fabric of our society and fragment communities.

ADL has long been in the forefront of national and state efforts to deter and counteract hate-motivated criminal activity. Hate crime statutes are necessary because the failure to recognize and effectively address this unique type of crime could cause an isolated incident to explode into widespread community tension.

In June 1993, the United States Supreme Court upheld a Wisconsin hate crime statute that was based on model legislation originally drafted by the Anti-Defamation League (ADL) in 1981.¹

¹Wisconsin v. Mitchell,
508 U.S. 476 (1993).

The following year, ADL published a detailed report on hate crimes laws, Hate Crimes Laws: A Comprehensive Guide, which functions as a reference on hate crimes legislation nationwide. This update is meant to complement the 1994 report and encompasses changes that have occurred since that time, including the League's recent addition of gender to its model hate crimes legislation, and the passage of additional Federal legislation, as well as a description of a number of Federal training and education initiatives to confront hate violence.

The ADL was formed as a result of a Jew, one Leo Frank, being charged with murder and rape of a very young girl in Georgia.

One of his high priced lawyers had this to say to the jury during the trial as they were trying to put the blame for the murder on a Negro.....

"Who is Conley? Who was Conley as he used to be and as you have seen him? He was a dirty, filthy, black, drunken, lying nigger. Who was it that made this dirty nigger come up here looking so slick?"

Before anyone gets bent out of shape, the above is a quote from the the trial transcript of the murder of Mary Phagen.

Jerusalem Post

11-07-2004

Headline: Cornell pays tribute to Jew whose 1915 lynching led to founding of ADL
Byline: MICHAEL FREUND
Edition; Daily
Section: News
Page: 04

Sunday, November 7, 2004 -- Nearly nine decades after Leo Frank was summarily executed by a vengeful mob for a crime he did not commit, his undergraduate alma mater has decided to pay tribute to his memory.

At a ceremony held at Cornell University, faculty and students convened to launch a weeklong series of events in honor of Frank, who graduated from the prestigious Ivy League school in 1906. The event was sponsored by Cornell Hillel and several university departments.

Programs include an art exhibit, lectures, and the screening of a film on the Frank case, which burst onto the American scene in 1913 after his arrest in Georgia for the murder of a 13-year-old factory worker, Mary Phagan.

Despite a lack of physical evidence, Frank was tried, convicted, and sentenced to death, which was later commuted to life imprisonment. Scholars have long contended that Frank was a victim of anti-Semitism and that the charges against him were false.

Nevertheless, in August 1915, a lynch party abducted him from the Milledgeville State Prison Farm. After taking Frank to an oak grove outside the town of Marietta, they strung up a noose on a tree and hung him.

Addressing Cornell students last week at the tribute to Frank, author Steve Oney, who recently published a book on the case, said the trial had been replete with "the worst sort of anti-Semitic slurs," including "ancient allegations of sexual perversity against Jews."

He added that in interviews he conducted with the descendants of those who took part in the case, a number of them acknowledged that their forebears had admitted to wrongly targeting Frank.

At the time, the lynching prompted outrage among American Jewry and led to the establishment of the Anti- Defamation League.

In 1986, Frank received a posthumous pardon from the Georgia Board of Pardons and Paroles.

As usual they tell only half the story. He was not given a pardon for the crime as you can see from below statement....

" In 1986, Frank received a posthumous pardon from the Georgia Board of Pardons and Paroles.December 22, 1983 - the Georgia Board of Pardons and Paroles denied the motion for a pardon, the reason being that while Alonzo Mann's testimony might incriminate Jim Conley, it did not conclusively prove the innocence of Leo Frank.

March 11, 1986 - the Georgia Board of Pardons and Paroles finally issued a posthumous pardon to Leo Frank, based on the state's failure to protect him while in custody; it did not officially absolve him of the crime. "

Ha!!! Censorship by omission, a common MSM ploy. Omit details that damage the desired illusion and then play pretend. Thank god for the net.

This was in 1913 and one Jew named Lasker from Chicago sent $100,000 for Franks legal "defense", which menat buying anyone in sight, and they did, trying to pin the rap on any black involved.

One thing ADL and others never mention...There were 12 or more women that worked for Frank that got on the stand and testified he had molested or tried to molest them...His defense lawyers did NOT cross examine a one of them, not one.

Amazing how they shape history and raise thugs to icon status. But god forbid we challenge their fiction with fact - then out comes the HATE slander. Screw them, I can't ignore reality any longer.

Exactly why hate-crime laws are such a crappy idea---Tell the truth, go to prison.

If Crime + Hate = Longer Incarceration, doesn't that legitimise the concept of Hate = Incarceration?

No, hate is a product of inferior thinking. Good people simply manage to outmanuever their rivals.

You'd be right to hate me then for suggesting the obscene idea that only the lower classes are capable of hate, but that's what I think I just did. I attempted to lace it with sarcasm, I assure you.

The mere fact that you plugged people into classes is hateful. Read anything by Marx for further details.

Yep, please send me your mailing address and $395,000.00 for S&H, and I'll send you your very own official HATER lapel pin.