The Case Against Hate-Crime Laws


Soon after the murder of Matthew Shepard, hundreds of mourners held a vigil in Washington. Chanting “Now! Now! Now!” they demanded that Congress pass the Schumer-Kennedy hate-crimes legislation.

Also supporting the bill is House Democratic leader Richard Gephardt, who says the law is surely needed. And on October 19, Attorney General Janet Reno met with representatives of more than a dozen gay and lesbian groups and assured them she would renew her call for passage of hate-crimes legislation.

I have recently appeared on radio and television to debate various representatives of the ACLU and gay and lesbian groups about the value and ramifications of laws mandating additional prison terms for crimes designated as having been committed because of hatred of gays, lesbians, the disabled, blacks, Jews, Catholics, et al.

I start with a case: A young black man was injured so badly during a robbery that he was hospitalized. The perpetrator, a black man, received a prison sentence.

In another case, in the same city, a white man was assaulted by a black robber who yelled racial epithets during the attack. That victim was also hospitalized. Caught and convicted, this black criminal received a longer prison term than the black man who beat up the young black man.

The mother of the first victim asked an assistant district attorney why the man who attacked her son so viciously was sentenced to less prison time than the criminal who beat the white man.

She was told that the assault against the white man was, under law, a hate crime and therefore required additional punishment on top of the penalty for the assault itself.

“So,” the mother said, “the harm done to my son counts for less than the harm done to the white man.”

In a letter to Newsday (November 11), Michael Gorman, a lawyer and a New York City police lieutenant who supports hate-crimes laws, pointed out:

“An antigay hate-crime assault will get much more attention from the district attorney’s office and the police department….The criminal penalty often dictates the amount of effort detectives will put into a case, and hate crimes generally warrant more effort, both for the good of society at large and to protect the target victim and his or her identifiable group.”

But if the “target victim” has been assaulted by someone bent only on robbery or because of a personal dispute—and if there is no evidence that the crime was fueled by bigotry—that criminal will get a lesser sentence because the actual criminal assault is not a “hate crime.”

What, then, happens to “equal protection of the laws” as it concerns victims of violence?

If you, any of you, are viciously attacked during a robbery or during a “road rage” assault, should the person who did this to you get less prison time because it was not an official “hate crime”?

Furthermore, if the Schumer-Kennedy Hate Crimes Prevention Act becomes law—and I’m reasonably sure it will be passed by the next Congress and then signed by the president—there will be an increase in double jeopardy as initially prohibited by the Fifth Amendment to the Constitution:

“Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”

The Schumer-Kennedy bill makes violence committed against anyone because of his or her gender, sexual orientation, or disability a federal crime. (The senators’s staffs say that other categories of hate crime are covered by previous federal laws.)

This means—as David Harris, executive director of the American Jewish Committee, said in a letter to The New York Times—that there will be “the need for prosecution at the federal level if and when the local authorities fail to act or when state penalties are inadequate.”

Despite the clear wording of the double-jeopardy clause of the Fifth Amendment, the courts have decided that it is lawful to try a person for the same crime in both the state and federal courts. (That has already happened to the police who beat Rodney King, as well as to Lemrick Nelson, for what he did during the Crown Heights riot.)

But it’s worth emphasizing what Supreme Court Justice Hugo Black said, in dissent, in Bartkus v. Illinois (1959):

“The court apparently takes the position that a second trial for the same act is somehow less offensive [to the Fifth Amendment] if one of the trials is conducted by the federal government and the other by the state. Looked at from the standpoint of the individual who is prosecuted, this notion is too subtle for me to grasp.” (Emphasis added.)

My argument against the effects of hate-crimes laws does recognize that the Supreme Court has unanimously declared that such legislation and the accompanying double-jeopardy possibilities are constitutional (Wisconsin v. Mitchell, 1993). It was a bizarre decision, but that’s it.

Why, then, continue the debate? Because it will be useful, when the Schumer-Kennedy bill becomes law, to know what’s in store for the nation once the FBI is empowered to deal with alleged hate crimes under this new federalization of those crimes.

Over-intrusive investigations have already taken place in various state prosecutions, such as Illinois (People v. Lampkin, 1983). Alleged perpetrators of these crimes have been probed with regard to their past associations, casual remarks, reading habits, and other presumable indications of bigotry. Some of these random invasions of Fourth Amendment privacy protections go back years.

For documentations of these Joe McCarthy–like abuses, see Hate Crimes: Criminal Law and Identity Politics (Oxford University Press) by NYU law professor James Jacobs and researcher Kimberly Potter. And white supremacist Tom Metzger advises callers to his telephone hot line to remain silent while committing a bias attack.