Thought Crimes

On the day Matthew Shepard died, Wyoming Governor Jim Geringer warned that "we should not use Matt to further an agenda." He quoted Shepard's father as saying: "Don't rush into just passing all kinds of new hate-crimes laws. Be very careful of any changes and be sure you're not taking away rights of others in the process."

Right on cue, a group of gay rights activists started collecting signatures on a petition demanding passage of the Federal Hate Crimes Prevention Act, which they said should be renamed the Matthew Shepard Hate Crimes Prevention Act. President Clinton has also urged Congress to approve the bill, which would dramatically expand the number of hate crimes covered by federal law.

Far from showing the need for more legislation, however, the Shepard murder suggests that crimes motivated by bigotry can be handled without special laws. The day after the openly gay college student was robbed, savagely beaten, and left tied to a fence near Laramie, Wyoming, police had already charged two men in the attack. If convicted, they could face the death penalty.

So whether or not Shepard's killers acted partly out of animosity toward homosexuals, as the police allege, it does not matter that Wyoming has no hate crime statute. Such laws work by enhancing the penalties for existing offenses, and in this case the penalty is about as enhanced as it's going to get.

The only way a national law could make a difference in a case like this is by allowing federal officials to try the defendants again if they don't like the outcome the first time around. As Attorney General Janet Reno put it on CNN, the Hate Crimes Prevention Act would "give people the opportunity to have a forum in which justice can be done if it is not done in the state court."

There is a name for this strategy. It's called double jeopardy, and it's forbidden by the Fifth Amendment. But the doctrine of "dual sovereignty," which says that state and federal offenses are not the same even when they consist of the same acts, has undermined that guarantee.

Hate crime laws are problematic even at the state level, because they punish people for the sentiments they express. The Wisconsin Supreme Court, when it overturned that state's hate crime law in 1992 (a decision later reversed by the U.S. Supreme Court), observed:

"If A strikes B in the face he commits a criminal battery. However, should A add a word such as 'nigger,' 'honkey,' 'jew,' 'mick,' 'kraut,' 'spic,' or 'queer,' the crime becomes a felony, and A will be punished not for his crime alone–a misdemeanor–but for using a spoken word."

Supporters of hate crime statutes say a more thorough inquiry would be required to prove motivation, but that is hardly reassuring, since the subject of such an inquiry would be the defendant's opinions. In making the case that a particular assault was motivated by anti-Semitism, it would be relevant to show not only that the defendant had called his victim a "kike" but also that he liked to wear a swastika armband, belonged to a neo-Nazi group, and owned a copy of Mein Kampf.

Suppose that, instead of a neo-Nazi who beat a Jew, we were talking about an animal rights advocate who vandalized a mink farm, an environmentalist who sabotaged a bulldozer, or an anti-abortion activist who shot an abortionist. Such offenders should not escape punishment because they were acting on deeply held beliefs, but neither should they be punished more severely because of those beliefs.

That this is the essence of hate crime laws is apparent from an example offered by Harlan Loeb, an official with the Anti-Defamation League of B'nai B'rith. Loeb told the Chicago Tribune that someone who writes "All Jews must die" on a school building, unlike someone who writes "I love Sally," victimizes "the entire community."

The comparison would be less tendentious, of course, if the second graffito said "Sally must die." In any case, it's clear that Loeb wants to punish the perpetrator not just for his act of vandalism but for the content of his message.

Janet Reno says hate crimes are especially objectionable because the victims are chosen "based on who they are and not what they've done." Yet that is exactly the approach that the government takes when it seeks to punish bigots for their thoughts.