Hate crimes law violates Constitution in two ways

posted at 11:36 am on May 1, 2009 by Ed Morrissey

The House passed sweeping new hate-crimes legislation this week, helped in no small part by a Republican rhetorical fumble during the debate, although the outcome was hardly in doubt. Sponsors named the bill after Matthew Shephard, who was beaten and left to die tied to a fence. Virginia Foxx (R-NC) called the bill a “hoax”, and mischaracterized the crime:

This is absurd on two levels. First, the defendants in the case tried using for a “gay panic defense,” arguing that Shephard had initiated sexual advances and that they went insane when their masculinity was challenged.  The walkback from that led the defendants to claim that the beating was a result of a robbery gone awry and that they had no intention of causing that level of harm.  The jury didn’t buy either excuse, and both defendants have back-to-back life sentences (one defendant eventually pled guilty and testified against the other).

The second absurdity is that even if one accepted that this particular case involved no animus against gays, undeniably people commit crimes based on that animus as well as a range of others.  The animus exists, and can be seen in a variety of criminal and non-criminal acts.  The question, which Foxx eclipsed with this sorry performance, is whether we want to start criminalizing thoughts as well as actions.

Until recently, motives only mattered in proving the mens rea of a crime, ie, the desire to commit the crime.  Motive matters in murder, for instance; a drunk driver can kill a pedestrian and a person can kill a spouse to collect on the insurance.  Both happen with depressing regularity.  The difference is that the latter had an explicit desire to kill (for profit) while the other had a depraved indifference to life but no explicit desire to kill, and that’s why they get charged with different crimes.

However, we don’t differentiate between murder for profit and murder for a particular animus of hate.  Doing that creates a subtle but significant change in which the state has suddenly become the arbiter of thought, determining different outcomes based on thought despite the similarity of crime.  The First Amendment arguments are obvious, but Jazz Shaw thinks this also violates the Fourteenth as well:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Long story short: When you pass laws which assign greater guilt to certain parties for committing the same crimes, based on nothing more than what they were thinking at the time and the “class” of citizens who were the victims, then you are providing unequal protection of the laws. You are assigning a higher value to the lives, liberty and property of some victims than others based on their sexual orientation, their race, skin color, religion, etc.

That’s exactly right — and, in fact, that’s the explicit desire of lawmakers.  They want to alleviate what they see as a greater degree of victimhood with a greater degree of government correction.  Those motives may be understandable, but they’re entirely incompatible with equality before the law.  Creating classes of victims means creating classes of citizenry.  Either we’re all the same, or we’re just competing for the most politically-correct biases. That’s more likely to perpetuate resentment than it is to reduce hatred.

The key to fighting crime is to prosecute aggressively and apply long sentences, especially to violent and repeat offenders, no matter who they are or whom they victimized.

Jazz and I discussed this on his show yesterday. I come in at the half-way mark:


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