Hate crimes “are different” from other crimes: That was the argument for hate-crimes laws that Al Gore made during the 2000 campaign, and it is the argument that we are going to hear again this week, as Congress takes up federal legislation on the subject. Crimes motivated by hostility to the victim’s race, gender, religion, or sexual orientation are said to be different chiefly because they, supposedly, instill fear in entire communities and generate social division.
Even if this generalization is true–and it is not obvious that it is–it should not end our thought about hate. There is no evidence that adding hate-crimes laws on top of regular criminal laws does anything to deter these acts. Nor is there any evidence that federal action is needed. Most states already have hate-crimes laws; the federal government has a hate-crimes law that applies to victims who were engaged in federally protected activities, such as holding rallies. The proposed legislation would allow the federal government to investigate and prosecute hate crimes, whether or not federally protected activities were involved, and to assist local law enforcement in fighting them. But there is no evidence that local law enforcement has a special need for federal resources to help it combat hate crimes.
Many proponents of hate-crimes laws profess to have no desire to move against free speech. But we fear that it may be a short jump from prosecuting “hate crimes” to prosecuting “hate speech.” It is true that the law routinely looks into defendants’ motives, and that some motives tend to draw tougher sentences than others. But our social divisions, especially over homosexuality, make it especially dangerous for the law to inquire into defendants’ prejudices–and “prejudices.” We want to deter and punish crimes against blacks, women, homosexuals, and everyone else. But we do not want to open the door to legal punishment for harboring incorrect thoughts about controversial issues–especially when those incorrect thoughts are part of the historic teaching of our major religions.
The bill’s sponsors seem, at best, oblivious to the risks. The bill’s definition of violence includes intimidation, which leaves considerable room for interpretation in the hate-crimes context. It also empowers the attorney general to help states enforce their own hate-crimes laws, which means that a liberal state, in concert with a liberal administration in Washington, could involve the federal government in envelope-pushing investigations and prosecutions.
A new federal law in this area is unnecessary and dangerous, and ought to be defeated.