Legal Commentary

The Case for the Hate Crimes Bill

By Professor University of Miami School of Law

The House passed the Local Law Enforcement Hate Crimes Prevention Act today. Supporters describe it as follows,

This bipartisan bill focuses on providing new resources to help state and local law enforcement agencies prevent and prosecute hate crimes. The current federal hate crimes law authorizes federal aid in cases of hate crimes committed because of a person’s race, color, religion, or national origin. This bill closes gaps in federal law to also help combat hate crimes committed because of a person’s gender, sexual orientation, gender identity, or disability.

As an abstract matter, I’m actually not a great fan of ‘Hate Crime’ legislation. I think in a perfect world we’d be a lot closer to strict liability than we currently are. While I’d make room for some mitigation defenses, I’d avoid most enhancements (including ‘during the commission of a felony’ type enhancements). The case for punishing all harms equally regardless of the nature of the motive is that the victim suffers equally.

But that’s also the strong case for the other side: the argument, and it’s a good one, is that in the case of a real hate crime the victim doesn’t suffer equally, but rather extra. Worse, other people in the community suffer disparately if they think there’s an extra chance of being targeted for whatever attribute is the object of hate. And that last point has more than enough truth to justify laws such as this one. (Note that in my opinion none of this argument applies with any force to ‘Hate Speech’ claims; however hurtful I see those in the main as protected First Amendment speech so long as words (without true threats) are the only thing involved.)

Having said all that, there’s something very stirring about the some of the supporters of this bill, enough to make one’s support less reluctant. Consider this Statement of Rep. Al Green,

I rise in support of the Declaration of Independence. All persons are created equal, endowed by their Creator with certain inalienable rights–among them, life, liberty, and the pursuit of happiness. Not some people, not people of a particular race, not people who just happen to be heterosexual. All persons are created equal. And for the record, I support the rights of gay people. Gay people have the same rights as any other Americans, and they have the right to pursue happiness. I support this, the Declaration of Independence speaks of it, and but for the Grace of God we all ought to realize, there go I.

Now the bill goes to the Senate, where it may face rough sledding.

Full post as published by Discourse.net on April 30, 2009 (boomark / email).