When Everything Is A Hate Crime Then Nothing Is A Hate Crime
August 26, 2016 (Fault Lines) — Bubble wrap is handy stuff. If you need to ship a delicate item, then bubble wrap will help keep it safe. Though while it remains encased in bubble wrap, you cannot really use that item. It’s safe but practically useless. Unless your house looks like this, you probably take items out of the bubble wrap before you use them.
The idea of bubble wrapping has filtered out into society where parents are expected to figuratively bubble wrap their kids and colleges are expected to do the same for their students. All kinds of harms are to be avoided. And harms now include a wide range of speech and thoughts. Anyone saying the wrong words and engaging in wrongthink is not just harming themselves, they are harming others.
It’s bad enough that these sorts of things are considered triggering and give cause for shutting down debate, but there is a growing expectation that this conduct must be criminalized. It would be too obvious to call them thought crimes or criminal speech, so they are cloaked in the term “hate crimes.” It conveniently allows proponents to frame themselves as against hate and their opposition in favor of hate.
Nowhere is there mention of the two fundamental problems with this new law, that it criminalizes thought and that it’s sole utility is to take a second shot at conviction when the primary shot misses. By definition, every hate crime consists of two parts: A primary crime, already on the books and a clearly established wrong, plus a thought component. As reprehensible as those who engage in violence against others for such reasons as their race or sexual preference might be, and it is absolutely reprehensible, a murder of a gay man is still a murder. Murder is already a crime. This would make it a double crime. * * *
People think horrible, terrible thoughts sometimes. It’s not a crime to hate, provided you don’t act on it. If you do, the actus reus bites you in the butt, as well it should. Criminalizing thought, however, crosses an extremely dangerous line, placing enormous power in the government to control our ability to like and dislike, to agree and disagree, even to think truly horrendous things.
David Kopel, contributor at Volokh Conspiracy, agrees. He examined Colorado’s Ethnic Intimidation law and determined that the underlying conduct was always illegal. But the law succeeded in prioritizing some victims over others. Also, he observed that it was almost never charged alone and the punishment was significantly less than the primary crime. Contrary to the expected results of such statutes, he found that they were more frequently used in spontaneous crimes, rather than in pre-meditated cases.
It seems all too often, the purpose of these laws is to use the police, prosecutors, and courts to punish people for being mean. Along with criminal libel, hate crimes offer the powerful an opportunity to criminalize speech against them, which is contrary to the supposed purpose of hate crimes. But all of these reasons mean little to the supporters of hate crimes:
Some people oppose hate crime laws because they say the laws are unnecessary and redundant. They say that we already have laws against assault and murder, so we don’t need laws against assault and murder motivated by hate. They say that, but they’re wrong. The purpose of laws is to deter and punish antisocial behavior, behavior that violates the rights of citizens. Hate crime laws impose additional penalties for crimes motivated by hate, and therein lies the deterrence.
Wow, just wow. Often the same folks that are loudly opposed to mass incarceration, suspicious of police and prosecutors, and call for sentencing reform are the same that speak out in favor of hate crimes. It’s easy to preach the gospel of deterrence when it’s not about the length of sentences black defendants often face. But when it comes to crimes with most-favored status, cognitive dissonance is ignored.
I would venture to say that most haters who assault or murder people out of hatred for the group they belong to would not commit the crimes of assault or murder to steal a wallet.
While we are venturing to say things we really have little knowledge about, I will venture to say that this writer is clueless.
They’re not muggers or thieves intent on stealing something of monetary value from another human being. They don’t care about your wallet. They want to beat the crap out of you or kill you because you’re black or Islamic or gay or transgender. They don’t know you, but they don’t like the group you belong to, so they want to harm you or even kill you. Their violent crime is not a means to an end — getting your wallet — but an end in and of itself — namely, getting you. * * *
This probably makes perfect sense if you spend your time reading Durkheim and musing about social anomie. There are untold numbers of assaults and domestic violence cases that are about getting the other person, without any economic motive. While there are arsonists that do it for profit, there are plenty who do it for other reasons. And then there are the store clerks who are shot after the robbery is complete.
Consider the fact that some people who oppose hate crime laws actually say that they do so in defense of freedom. Right. They say that hate crime laws threaten freedom of speech and religion. They say that, but they’re wrong.
Oh. I see.
There are a whole lot of reasons that people give for opposing hate crime laws, but for many of these people, the real reason goes much deeper. It’s usually pretty hard to get to real reasons, ultimate reasons, but in this case it’s not. In this case it’s clear. Unfortunately the real reason that some people oppose hate crime laws is that they themselves are part of the hate.
And there it is. If you disagree with me, then you’re hateful. And if you express those ideas, then you deserve punishment. This sounds quite a bit like vengeance.
Yet, when every group has its own hate crime legislation, the criminal justice system will look a lot like it is now. That is, except for the fact that speech and expressive conduct will be criminalized. Lose a lot to gain nothing. Sounds like a winning idea.
Often proponents of hate crimes do argue that it is necessary to both punish the offender and protect the victim because “These crimes constitute an assault not against the victim, but against our communities and against the very foundation of Democracy.” In other words, if a black church is burned, then black churchgoers everywhere are victimized. In a real sense, the people that attended that particular church are likely intimidated, but it’s harder to say that about churchgoers 2,000 miles away.
It would be difficult or impractical to actually prove this sort of externality; so, hate crime laws have to bake that assumption into the law. And this assumption makes it even easier to criminalize particular conduct because someone, somewhere might be victimized by the behavior. No longer must a specific victim be identified, a generalized harm is enough.
In addition, turning victims into a generalized abstraction justifies more legislation, more politics, and more administrators to bring utopia into being. Social justice warriors can forever justify their existence by institutionalizing the revolution. And the dissidents are framed as haters that are concealing their black souls with some confusing logic and reason.
This argument can be applied to the offender, too. An offender who commits so-called hate crimes can be seen as revealing the shrouded hate buried in the hearts of all offenders with similar characteristics. And by harshly punishing this type of offender, it deters others in that group from committing hate crimes.
In the past of the United States, there certainly were reasons to criminalize behavior rooted in racial animus. But the Reconstructive Congress opted to criminalize the KKK by focusing on their conspiracy against the constitutional rights of the freed blacks, rather than the subjective intent of the KKK members themselves. And this spirit was carried on in the later civil rights acts as well.
But no longer was the focus on depriving the victim from civic engagement. Now the identity of the victim is the critical consideration. And from that we are told we can infer a harm experienced by all persons sharing similarities with the victims. Meanwhile, we’ve given up some freedom along the way and stand to lose even more.