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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 ...

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