EDITOR’S NOTE: James Q. Wilson is one of ten 2003 recipients of the Presidential Medal of Freedom. Wilson, James A. Collins Professor of Management and Public Policy Emeritus at the University of California Los Angeles, is the author of Moral Judgment, The Ethics of Human Cloning, and The Marriage Problem, among other books. He serves on the president’s commission on bioethics and has written for National Review over the years. Reprinted here is an article Wilson wrote for the September 13, 1999, issue of NR.
ational tragedies sometimes give rise to comic responses. When Buford Furrow killed a letter carrier and shot several children in Los Angeles, these despicable acts by a neo-Nazi stimulated a national desire to make sure “something was done” to prevent such disasters. One response was to call for tougher gun-control measures, though Furrow had already broken the law when he acquired the weapons he used. Some new gun-control laws may in fact be needed, but the most important thing is to enforce the ones we already have.
The other reaction was to call for the passage of tougher laws against “hate crimes.” The reason for this demand was that it is important to punish the motive for the crime as well as the crime itself.
Which is an odd view. Suppose there were three men named Furrow, each of whom killed from a different motive. Alfred Furrow shot a letter carrier because he had taken out a life-insurance policy on him and wanted to collect the benefits. Buford Furrow shot one because he disliked people of different ethnic backgrounds. Charles Furrow shot one because he wanted to prove to fellow gang members that he was a tough guy.
Legally, these crimes are identical. That is, they all constitute premeditated murder. Each Furrow not only intended to take a life, he thought through the murder in advance. To prove this in court, a prosecutor must show, usually from inferences based on the defendant’s conduct, that the killer deliberated about his actions and acted in accord with those deliberations. The intent of each Furrow was the same.
To convict someone, showing intent-but not motive-is essential. A motive is ordinarily not important in any criminal conviction. The reason is that intent differs from motive. The former has to do with the desire to kill someone, the latter with what state of affairs the killing is supposed to achieve. It usually makes no difference whether an intentional killing was motivated by a desire to get rich, to kill immigrants, or to prove one’s toughness. They are all premeditated murder. There is no reason, absent some differences in their backgrounds, why the three Furrows should be punished differently.
There are, to be sure, cases where motive may make a difference. If the evidence of the crime is entirely circumstantial, showing that the suspect had a motive may help establish guilt. And there are certain kinds of murder-for example, killing a police officer or killing in the course of treason-where motive can escalate the penalty. But in these cases the motive can be shown by objective evidence, not by speculating about subjective states.
Hate-crime laws are an effort to make the subjective motive matter. But why should it? Why should hating immigrants be a worse motive than stealing money or earning entree into a criminal gang? The proposed Hate Crimes Prevention Act of 1999 tries to answer that question by saying that “Congress finds” that hate-motivated violence “disrupts the tranquillity and safety of communities and is deeply divisive” and that it is “a relic of slavery.” Congress, of course, has no evidence that either of these statements is true. If people killed others in order to gain money or strengthen gangs, as in fact they do, this would affect the safety of communities and would be deeply divisive at least as much as, and probably more than, killing others because of what they look like. And since the hate-crimes bill would impose tougher penalties on murderers who attack people because of their religion, national origin, gender, or disability, as well as their race or color, it cannot be that the law intends to correct the defects of slavery.
The bill would impose on people convicted of causing bodily injury-not death, just bodily injury-a sentence of up to ten years in prison. Compare that maximum penalty with the penalty people now pay for aggravated assault, which is less than four years in prison. And that penalty could fall on people who break state laws as well, not only federal ones, because hate crosses state boundaries.
This bill would be on top of the hate-crimes provision embedded in current federal sentencing guidelines. This existing provision is even more sweeping than the proposed bill (though, unlike the bill, it applies only to federal defendants). A person convicted in federal court of having intentionally selected victims because of their “race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation” would have his penalty escalated by moving his crime up three levels on the federal guidelines.
These sentencing rules are baffling. If a man rapes a woman, that is an abomination. Should it make a difference that he chose the rape victim because she was a woman? (Who else would he choose?) Or should it make a difference that the rape resulted from hating women more than from sexual lust? If a gay man rapes another man-another abomination-does it make a difference that a gay man prefers another man as his sexual partner? Or that the victim was raped because he was a man rather than because it gave the rapist sexual pleasure?
In his splendid novel Brain Storm, Richard Dooling describes the case of a fictional man who murders a deaf African American. If he chose the victim because he was deaf or black, he faces a tougher penalty than if he chose him because his wife had an adulterous affair with the victim or because he wanted money the victim had. The novel explores the utter silliness of this legal theory. In an appeals-court hearing, one judge asks the prosecutor whether there is any reason that the hate-crimes law should not also bar selecting victims because of their views on the draft, global warming, or reproductive rights.
And this is hardly a ludicrous extension of an otherwise sound idea. The California hate-crimes law adds to the customary ethnic and sexual categories two more grounds for extra punishment: the victim’s “political affiliation” and “position in a labor dispute.” If you beat up a person because he was walking a picket line in front of your factory, you get an additional one to three years in prison. If you beat him up only because he had an affair with your wife, you escape these extra penalties. If you are convicted on “hate” grounds and manage to receive probation, you must agree to complete a course on “racial or ethnic sensitivity.” The therapeutic state has truly arrived.
California authorities reason that it is important to impose these special penalties because violent crimes aimed at members of a specified group inflict greater injury on society than does “randomly inflicted violent crime.” Really? All of these years I had let myself be persuaded that what actually frightened Americans was our high murder rate, almost all of which is anything but random in the sense that it is chiefly aimed at lovers, rival drug dealers, drunken enemies, and the like. The California deep thinkers imagine that having 20,000 homicides a year in America is less important than the unknown, but quite small and almost surely declining, number of hate murders.
Of course, the idea of hate crimes might be given some meaning if we added to the list of protected categories the reasons for actual murders. From now on, let us suppose you will get an extra penalty if you select your victims because they are lovers, rival drug dealers, or drunken enemies. But don’t stop here. Let’s add to that list victims who belong to a hostile Mafia gang or a rival terrorist faction. And don’t forget the Oklahoma City bombing: We should give special protection to government employees and their visitors. Oh, and the bombing of Pan Am Flight 103: more protection for people targeted because they travel by air.
There are only two ways to think about violence: Either we penalize all violence more than we now do (which is my view) or we convert the homicide and assault statutes into some combination of affirmative-action quotas and Americans with Disabilities Act benefits. Can you think of any group that does not deserve special protection? If not, every group should be covered by the law-which is just another way of saying that the existing criminal penalties are too weak.
But of course the authors of the hate-crime laws-Rep. John Conyers and Sen. Ted Kennedy, in the case of the present proposal-are not interested in making the laws against violent crimes tougher. They are interested in giving special protection to a few groups. They are interested, in short, in making the criminal law an affirmative-action schedule. They want the law to be tough on people who kill blacks, immigrants, Jews, or gays and lesbians, all of whom, to be sure, have been the object of some degree of social oppression. And they want to give some additional protection to women. Thus, when the proposed law speaks of protecting people selected on the basis of “gender,” the authors do not want to protect Caucasian males. I find it hard to believe that federal prosecutors, equipped with this law, will go around looking for white males who have been beaten up by black gangs.
But giving protection to groups that have suffered from abuse is possible within the existing criminal law without adding to the definition of a crime some vague notion of ethnic or sexual motive. The first way is to allow judges to take into account the entire circumstances of the crime — including the motives of the offenders — in determining a penalty. We do this now for almost every offender. That is the place where motives ordinarily enter into the criminal law. But the judges must have discretion in this matter. They cannot be told in advance that hurting a member of one group is more important than hurting a member of a different one, or even that the victim’s identity is more important than the criminal’s background.
The second way is to encourage the FBI, and equivalent state agencies, to put organized hate groups under greater surveillance. Arguments have been made of late that the Justice Department unduly restrains such surveillance. In all likelihood, such restraints arose when the department had to clamp down on the FBI’s COINTELPRO program aimed at far-left and Marxist organizations in the 1960s. But it is possible that the restraints have gone too far. At one time, the Ku Klux Klan, however numerous its members, became an ineffectual organization because so many of its members were FBI informants. The same strategy should be aimed at far-right organizations that endorse views that, if acted on, would impose a threat to innocent people.
However questionable-in some cases, ludicrous-the content of hate-crime laws, they are not likely to have much effect. For one thing, such crimes are not that common, at least in the sense that a premeditated murder or assault reflects an ethnic or sexual bias. Those cases in which that kind of premeditation existed have been given great publicity of late. But the very fact of their publicity speaks to their rarity. If such crimes occurred every day, the press would not give them special attention. Of course, ethnic or sexual hostility may well exist in many assaults, but not out of premeditation. Two men get into a fight. They have been drinking and they quarrel about a woman or a football team. Very quickly their ethnicity may become a factor in their argument and in the justification they later make to friends about why they kicked the stuffing out of the other guy. But such offenses lack the degree of prior intent to make them subject to hate-crime laws.
Prosecutors will take advantage of hate-crime provisions to make a name for themselves in high-profile cases. Defense attorneys will recruit psychologists (and, if necessary, witch doctors) to “prove” that there was no real hate and to recruit jurors who believe that it is all right for a member of one ethnic group to beat up a member of a different one. And so we will have high-profile “hate” cases that will draw our attention and lead, no doubt, to more political demands for even tougher laws-on these crimes, but not others.
Suppose Buford Furrow had been kept in jail instead of put on probation. He would not have had a chance, at least for a few years, to shoot at innocent Jewish children. Making the likelihood of punishment greater is more important than stigmatizing the motive of the offender.