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Jewish World Review Jan. 10, 2000 /3 Shevat, 5760

Ann Coulter

Ann Coulter
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The paradox of discrimination law -- The strongest arguments for hate crime laws are Matthew Shepard and James Byrd Jr.

Shepard was beaten, tied to a fence and left to die. His murderers chose him because he was gay. Byrd was chained to the back of a pickup truck and dragged to his death, being decapitated along the way. His murderers chose him because he was black.

Grisly murders by remorseless killers such as these do seem to deserve enhanced penalties. That's why the law permits increased punishment for crimes that are grisly and for criminals who are remorseless. What sort of motive could put these acts in a better light? If Shepard had been straight and Byrd white, would that make the crimes more palatable? Hate-crime provisions seem vaguely directed at capturing a sense of cold-bloodedness, but the law can do that without elevating some victims over others.

It's easy to see that the government cannot prohibit a person from holding stupid or hateful beliefs. It's easy to see that the government cannot prohibit a person from passing out pamphlets or otherwise publicizing those views. As Justice Thurgood Marshall said: "(a)bove all else," the First Amendment "means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content" (Chicago Police Department vs. Mosely).

But for some reason, it's much harder for people to comprehend that punishing a person for his beliefs while simultaneously punishing him for, say, murder, is also something the government cannot do. An unconstitutional law is no less unlawful when in the company of a constitutional law.

The federal sentencing guidelines increase penalties for crimes in which the defendant "intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability or sexual orientation of any person." What if the defendant intentionally selected his victims because of what they were wearing? Or because they were Republicans? Aren't those victim selection methods equally cold-blooded?

The paradox of discrimination law is that once a victim group has enough leverage to win special protection under the law, the law hardly seems necessary. If the idea of hate crime statutes is to capture a level of ruthlessness,
Must we adjust justice?
it doesn't make much sense to limit the list of protected characteristics -- particularly when the characteristics chosen are distinguishable only in that they refer to organized groups with political muscle.

The inevitable result is that some victims are more equal under the law than others. If a gay rights advocates and anti-gay protestors rallied at the same site and fights broke out between the two sides, only the anti-gay rights protestors could be tried for committing "hate crimes."

This is the creepiest aspect of hate-crime prosecutions: They inevitably have the ring of the thought police. A defendant's books, organizations and friends all become relevant evidence. In a "hate crime" prosecution in Ohio, for example, State vs. Wyant, the young white male defendant took the stand in order to testify that he frequently associated with black people. He was rigorously cross-examined by the prosecutor who asked the defendant questions such as whether he had ever gone to the movies or had a beer with his black neighbor, a 65-year old black woman.

In State vs. Ayers, a Maryland "hate crime" case, the defendant was accused of viciously attacking two black women. He admitted to the attack, but repeatedly insisted he was not a racist, even producing four black friends who earnestly testified to that effect. Nonetheless, he was sentenced to an extra 20 years in prison for having chosen his victims allegedly because of their race.

One wonders why the defendant was not accused of choosing his victims on the basis of their gender. Perhaps women do not have enough pull in Maryland to force the legislature to criminalize hatred against them.

It takes a lot of clout to be a victim.

JWR contributor Ann Coulter is the author of High Crimes and Misdemeanors: The Case Against Bill Clinton.


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