Family Law

An Unbalanced Bill

by Richard E. Sincere Jr.
First published in the Richmond Times-Dispatch, October 20, 2009

For more than a decade, liberal lawmakers have argued that federal "hate crimes" laws should be expanded to include sexual orientation among the categories that have been protected since the first such statute was enacted in the 1960s.

On Oct. 8, the House of Representatives approved the Matthew Shepard Hate Crimes Prevention Act, named for the young gay Wyoming man who was tortured and killed by thugs who now wallow in prison under life sentences. The U.S. Senate passed its version earlier this summer, and the two versions were reconciled by a conference committee.

In both the House and the Senate, this proposed hate-crimes law had been incorporated, with no hint of germaneness, into each chamber's Defense Authorization bill (numbered HR 2647 and S 1390, respectively). The latest version was passed on by the House on a 281-146 roll-call vote. Senate action will be virtually pro forma and is expected to take place soon.

Arguments against hate-crime laws often focus on the "thought crime" aspects of such legislation — noting that a criminal convicted of assault will have his punishment enhanced based upon words he said before, during, or after committing the act.

As retired Hunter College Professor Wayne Dynes once noted, hate-crime laws, if they are to be applied in a constitutional manner, must be content-neutral. He gave this example: "Countless numbers of people, aware of the unspeakable atrocities under his leadership, hated Pol Pot. This hate was surely well warranted. If one of the Pol Pot haters had killed him, would this be a hate crime? Why not?"

Dynes, editor of the Encyclopedia of Homosexuality, added: "In seeking to exculpate the killer, we would get into the question of whether some hate is 'justified' and some is not." He concluded that hate-crime prosecutions "will be used to sanction certain belief systems — systems which the enforcer would like, in some Orwellian fashion, to make unthinkable. This is not a proper use of law."

What is particularly disturbing about the Matthew Shepard Act, however, is that this bill federalizes crimes that properly belong under state or local jurisdiction. It signifies creeping encroachment of federal law on state prerogatives and the dulling of the distinction between the central government in Washington and the various state governments.

Previous federal hate-crime statutes were written when state and local authorities often looked the other way if crimes of violence were committed against members of minority groups. These laws were narrowly focused and meant specifically to prosecute crimes against victims engaged in a federally protected civil-rights activity (such as helping to register African-Americans to vote).

The current bill says the federal government can step in to prosecute a case if "the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence." In other words, if a U.S. attorney dislikes an acquittal or the punishment of someone convicted under state law, he can re-open the case as a federal matter.

By Orwellian logic, this kind of re-prosecution does not violate the Constitution's prohibition on double jeopardy, because the same act becomes two separate crimes — one state and one federal.

Violent crime against any person is deplorable. Fortunately, state and local governments no longer routinely look away when crime victims belong to socially disdained groups. Hateful thoughts may be disagreeable, but they are not crimes in themselves. The crimes that result from hateful thoughts — whether vandalism, assault, or murder — are already punishable by existing statutes.

There is no good reason to expand the reach of the federal government to fight "hate crimes." That would do violence to the Constitution itself.

Full post as published by Independent Gay Forum on October 21, 2009 (boomark / email).