The Empty Symbolism of Hate Crimes Legislation

Why the Matthew Shepard Act won't help prevent future hate crimes


Federal law enforcement officials are not plagued by idleness these days, thanks to the demands on their time from terrorists, drug traffickers, human traffickers, Ponzi schemers, and crooked politicians. But Congress never stops trying to ensure full employment for FBI agents and U.S. attorneys. The latest stimulus is the Matthew Shepard Act, billed as an overdue effort to prevent violence against gays and lesbians.

The logic behind the proposed measure is hard to follow. Says sponsoring Sen. Ted Kennedy (D-Mass.), "No members of society—none—deserve to be victims of a violent crime because of their race, their religion, their ethnic background, their disability, their gender, their gender identity, or their sexual orientation." Which raises the question: Who exactly does deserve to be the victim of a violent crime?

The bill targets actions we would all like to eliminate—physically injuring or trying to injure someone with "fire, a firearm, a dangerous weapon, or an explosive or incendiary device." But it's hard to imagine that it would reduce the prevalence of such conduct, which is already 1) really, really illegal and 2) subject to harsh penalties.

This legislation would add extra punishment for attacks designated as hate crimes. But if a criminal is not deterred by the fear of five years behind bars, he's probably not going to be pushed onto the straight and narrow by the prospect of six.

In the case of attacks like the one on Matthew Shepard, a gay college student beaten to death in Wyoming in 1998, the statute would be superfluous. His killers were eligible for the death penalty, though both made deals that assured they would be locked up for the rest of their lives. For the most horrific hate crimes, the change would accomplish absolutely nothing.

That's not the only way in which it would constitute an exercise in irrelevance. Already, 45 states have hate crime laws, and two-thirds of them include crimes against gays and lesbians. In the remaining states, you will be relieved to know, such attacks are punished as violent felonies.

The old rationale for federal hate crimes legislation was that bigoted local cops and prosecutors were ignoring vicious assaults on minorities. But supporters have to admit things have changed. The Human Rights Campaign, a gay rights group, notes that "85 percent of law enforcement officials surveyed recognize bias motivated violence to be more serious than similar crimes not motivated by bias."

The existing law is mostly a curiosity, since it applies only to hate crimes in which the attacker singles out a victim on the basis of race, religion, or national origin and is trying to interfere with the victim's participation in one of six federally protected activities—going to a public school, applying for a job, serving as a grand juror, and so on. Even in the most vicious cases, notes Jonathan Godfrey, a spokesman for the House Judiciary Committee, an attacker can't be convicted "unless he is proved to have possessed both these intents."

Sen. Kennedy wants to eliminate these restrictions because they make it hard for the feds to go after hate crimes. But the change might not go down well at the Supreme Court. In 1995, it overturned the Gun Free School Zones Act of 1990 for exceeding Congress' authority over crime, which the court said is properly a responsibility of state and local governments.

So a federal hate crimes law may go from being a ban on extremely rare offenses to being unconstitutional. Some achievement.

That aside, expanding the law will not expand the number of hours in a day for the people who have to enforce it. The FBI says it could add hundreds of thousands of cases to its workload. Barring an increase in budgets and staffing, one of two things will happen: The feds will neglect other serious crimes that they now pursue, or they will neglect hate crimes. Which should it be?

Fortunately, any hate crimes passed over by the FBI can be tackled by local police and prosecutors. The Human Rights Campaign acknowledges that even if supporters of the bill get their way, "the vast majority of these crimes will continue to be prosecuted at the state level."

If federal licensing laws required disclosure of the ingredients in congressional legislation, here's what the label on this one would say: 90 grams of empty symbolism and 10 grams of needless duplication.


Bonus video: During House deliberations over the hate-crimes bill, Rep. Alcee Hastings reads a list of fetishes that would be covered under the legislation.