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Thomas Berg

Outlawing Illegal Acts

A series of horrific incidents, including several racially inspired shooting sprees by white supremacists and the brutal torture and murder of gay men in Wyoming and Alabama, has reignited the debate over "hate-crime" laws. The federal government and nearly 40 states now have laws that create new liability or increase the punishment for crimes committed be cause of the victim's race, sex, religion, and (in some cases) sexual orientation. In the wake of the Wyoming murder of Matthew Shepard, President Clinton called for sexual orientation to be added to the list of categories in the federal law, and similar efforts arose in several states.

Hate Crimes: Criminal Law and Identity Politics, by law professor James Jacobs and lawyer Kimberly Potter, was published just as this debate reopened. The book is a broadside attack on the hate-crime legislation enacted in the 1980s and 1990s. It advocates not only refraining from extending the reach of hate-crime laws but going on to repeal them in whole or large part.

Jacobs and Potter's attack proceeds on three fronts: hate-crime laws, they contend, are unconstitutional, unnecessary, and in fact, counterproductive. Such laws unconstitutionally restrict free expression, the authors say, because they add punishment to a crime solely for the perpetrator's thoughts or opinions. They are unnecessary because the ordinary criminal laws already provide potentially severe penalties for assaults, murders, or rapes, and there is no empirical evidence that such crimes have more serious social consequences just because some element of prejudice is involved. Indeed, Jacobs and Potter argue, hate-crime laws operate as little more than "symbolism"; they are products of the last two decades' "identity politics," in which groups compete to secure official recognition that they are victims and official pronouncements that prejudice against them is bad.

Moreover, such symbolic politics is worse than just a waste of time, the authors argue: it is counterproductive to the fight against violent crime. Hate-crime laws raise hackles in the legislature over what forms of prejudice should be included and excluded, and at trial by further injecting racial or other disputes and resentment into what ought to be simple prosecutions for beating or killing another human being.

Jacobs and Potter stand on their weakest ground when they argue that hate-crime laws are constitutionally invalid restrictions on free speech. The U.S. Supreme Court unanimously up held hate-crime laws under the First Amendment in 1993 in Wisconsin v. Mitchell, concluding that they punish conduct, not speech or expression. The Court noted that there is a host of federal and state antidiscrimination laws that make it illegal to engage in conduct—such as firing an employee or refusing to serve a customer—because of the victim's race, sex, religion, or other characteristics. The constitutionality of these laws has always been up held, even though they may involve looking at the defendant's expressions—for ex ample, racial epithets by a work supervisor—to determine whether he acted against the victim for discriminatory reasons. Moreover, racial or other prejudice can already be inquired into to establish general criminal-law issues such as motive.

Jacobs and Potter say that hate- crimes differ from employment discrimination because the underlying conduct, whether assault or murder, is already punished, so the only reason for increasing the sentence is to punish the criminal's beliefs. But hate-crime laws typically rest on the judgment that crimes motivated by racial or other kinds of prejudice cause greater harm to society by fomenting division among groups, causing fear within minority groups, and provoking retaliation by other members of the attacked group. Jacobs and Potter disagree with that judgment and set forth evidence against it, but they fail to show that the judgment is unconstitutional as opposed to just bad policy.

But the main thrust of the authors' arguments is that hate-crime laws are bad policy, and for this they make a stronger case. The most telling point, to this reviewer, is that hate-crime laws do indeed stir up more conflict and resentment than they are worth. For example, the authors convincingly detail how sex-related crimes have been omitted from many hate-crime laws out of concern that all rapes or domestic abuse would be covered (thus diluting the perceived seriousness of the category for other groups), and how women's groups naturally regarded this as an insult. (For the same reason, one can hardly leave sexual orientation out of the protected categories without insulting gay men and lesbians.)

The authors discuss how the use of hate-crime laws to prosecute black-on-white crimes has led to disputes over whether the criminals were motivated by prejudice or by justified resentment against white oppression. And the book gives examples of how hate-crime laws impede the prosecution of cases by injecting in creased racial or other consciousness into jury selection, by encouraging unseemly inquiries into a defendant's beliefs and associations (like the Ohio case where a defendant accused of an assault was questioned at trial about whether he had ever had dinner with a black person), and generally by giving violent criminals an opportunity to paint themselves as victims of political correctness.

As a matter of policy (though not constitutional law), it is doubtful that such collateral disputes are worth encouraging when the criminal's conduct can already be punished severely under general laws. Hate-crime laws become crucial for serious crimes only if the prosecutors, jurors, or judges are themselves prejudiced and refuse to prosecute, convict, or impose appropriate sentences. Indeed, it is precisely in such situations that many of the federal criminal civil-rights laws come into play. (The killers of the gay men in both Alabama and Wyoming received life imprisonment.) Following the above logic, the authors concede that their arguments might not apply as forcefully to low-level crimes of premeditated prejudice—for example, vandalism of a synagogue. Such crimes may indeed cause greater fear and disruption than random acts of vandalism, yet they may not be investigated seriously unless they are accorded some special status.

How might a Christian think theologically about the issues raised by hate-crime laws? I don't think there is an approach obviously dictated by faith, but here is a tentative suggestion. The criminal law reflects the central purpose of government, as the epistles of Romans and 1 Peter put it, to protect peaceable citizens and punish and deter wrongdoers. As such, the criminal law is an essential expression of our shared human dignity under God, of those things that we have in common and those rights we share as human beings.

The Bible, of course, demands particular concern for those groups that are poor and op pressed, and society rightly seeks to attack such inequality through antidiscrimination laws and antipoverty measures. But when it comes to crimes (at least serious ones), Jacobs and Potter rightly emphasize the general importance of treating comparable attacks the same without regard to the identity of the attacker or victim. They rightly remind us that opposition to violent crime is something that can unite us all, and they rightly worry that the focus on the group membership of the victim will "undermine the criminal law's potential for bolstering social solidarity." As columnist John Leo has observed, "If the skulls of all Americans are equally valuable (i.e., if this is a democracy), why not give everyone [the same sentence] for cracking any cranium at all?"

Thomas Berg is professor of law at Samford University's Cumberland School of Law.

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