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Jewish World Review Oct. 6, 2000 / 7 Tishrei, 5760

Nat Hentoff

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Hate-crime laws: The real message -- IN HIS BOUNTIFUL acceptance speech, Al Gore cited as an urgent priority the expansion of federal hate-crime laws -- thereby encouraging even more states to enact legislation that would impose additional prison time for so-called bias crimes.

The most recent hate-crime law was signed this summer by Gov. George Pataki of New York. As he wielded his pen, he made an astonishing statement. He said that if such a law had been in existence in Germany, it could have prevented the Holocaust.

Now, in New York State, those convicted of assault motivated by race, religion, gender, sexual preference or age will serve substantially more years in prison than they would have if their crimes had not been committed because of any of these prejudices.

In 1992, a similar law was overturned by the Ohio Supreme Court (State vs. Wyant) because "Once the proscribed act is committed, the government criminalizes the underlying thought by enhancing the penalty based on viewpoint. If the legislature can enhance a penalty for crimes committed 'by reason of racial bigotry,' why not 'by reason of opposition to abortion, war, or any other political or moral viewpoint'?"

But the next year, the United States Supreme Court -- in an astonishingly boneheaded decision (Wisconsin vs. Mitchell) -- unanimously approved a Wisconsin hate-crimes statue. Writing the decision, Chief Justice William Rehnquist gave the same rationale that all advocates of these laws give -- among them Sen. Ted Kennedy, the Anti-Defamation League, the camouflaged attorney general, various gay and lesbian organizations, William Jefferson Clinton, and, stunningly, the American Civil Liberties Union.

The Chief Justice, on one of his off days, said that these laws are especially needed because bias crimes are "thought to inflict greater individual and societal harm." Its victims suffer "distinct emotional harms."

By putting those criminals away for longer terms, a message is sent to the community -- say the supporters of hate-crime laws -- that these offenses are particularly offensive. This means, of course, that anyone beaten up by attackers who are not doubly punished by "bias" laws is being told that his or her injuries are of less importance to society.

This -- the Supreme Court notwithstanding -- violates the equal protection of the laws guaranteed by the 14th Amendment. But it looks as though the Senate will pass the Local Law Enforcement Act of 2000, a bill that will expand the scope of what is considered a hate crime.

Furthermore, how is "bias" determined? If, during a road-rage assault, an expletive flies through the air, is that sufficient evidence for a longer prison term? In the clearest book on this dangerously confused issue -- "Hate Crimes: Criminal Law and Identity Politics" (Oxford University Press, 1998) -- law professor James Jacobs and researcher Kimberly Potter quote detective John Leslie of the New York City Police Department:

"I hate these cases because they become real mysteries. Everybody jumps on the bandwagon."

The subjective, uncertain "evidence" in many of these cases also leads to a new form of McCarthyism. Alleged bias crimes are given a great deal of media coverage, and elected prosecutors don't want to lose them for fear of being voted out of office. So, when a case is weak, investigators can be sent out to see if the defendant has indicated prejudiced beliefs in the past -- by magazines he or she is known to read, or remarks made in the local bar or barber shop.

In an Illinois case, People vs. Lampkin, a prosecutor successfully told the jury about purported racist statements the defendant had spoken six years before the actual crime for which he was on trial!

But what if someone is sent to prison for a long term because it is reasonably clear that he or she is indeed bigoted? This still sends a message to a person who has been badly injured by an attacker without a trace of bias -- that his or her wounds are of less importance to the community.

Also, as Carolina Cordero Dyer, a Latina lesbian, noted in Newsday, a "hate crime perpetrator is unlikely to get adequate rehabilitation" in prison. And, as the years behind bars increase, the perpetrator's hatred will grow. Therefore, asks Ms. Dyer, "Will our community be safer when he or she is released?"

Ask Al Gore and Joseph Lieberman. Also ask them about equal protection of the laws.

JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.


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