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Monday, October 12, 2009



just curious how you would craft such legislation, kb. if you could craft in a way that covers everyone -- whatever category or class: overweight, skinny, ugly, handsome, white, black, etc -- equally, you might have something, here.

but opposition isn't based solely on the law's violation of the equal protection clause, but also on the premise that the government's duty isn't to punish thoughts, beliefs, or biases, but only actions and behaviors. i'm glad those two losers got a max punishment. they deserve it. maybe they deserved the death penalty, even. but to punish them extra for a perceived bias seems anti-constitutional.

besied, a criminal's thinking -- or mens rea -- is already considered in a court of law and goes toward deciding, for instance, whether something is a first degree murder or manslaughter.

hate crimes laws, while understandable in the face of such horrible hatred, become merely the tools of political football.


i meant "besides." sorry. bad tiypnig.


Lex: It doesn't seem to me that designing the legislative language should be all that tough. Something like "race, creed, or color" is wide enough to cover everyone, while additional specifics like "sexual orientation" would have the effect I speak of in the post above.

I share your concern that hate crimes legislation might become "thought-crimes legislation," in which religious opposition to homosexual behavior might itself be criminalized. That kind of thing would be struck down by the Courts, I believe, and I think it unlikely to pass in the first place. What is necessary is to make sure that hate crimes legislation only covers things that would be crimes in the absence of any aggravating factor like prejudice.


Excellent, thoughtful post. One of the best things I've read about Shepard and the Hate Crimes Law. Well done.

ben w.

hate crimes laws eventually morph into thought crimes, through that easy and ready avenue of tort law.

once society starts making preferences as to who is the victim, it opens up a whole other can of worms. Not to mention the lopsided enforcement as seen in the various bus camera black-on-white beatings that aren't 'hate' crimes because the modern notion becomes overly ideologically focused on minority groups being unable to 'hate'

which is all a way of saying that this is less about helping future Matthew Shepherds as it is the power politics of group identity. It will soon become a test whether a specific interest group is 'protected', and if the gays are but blacks aren't, then aren't we making a de facto statement that blacks are worth less than gays? And once blacks are protected but Hispanics aren't, and the cycle will go on.

The whole concept and idea that all men are treated equal under the law, such a basic and beautiful concept, somehow died with Matthew Shepherd's robbery and murder?

It's just madness played out in politics.


Erik: Thanks very much for the kind words. They mean something to me.

ben w.: I agree that there is a danger in hate crimes "morphing" into thought crimes. But I don't think that that is the tendency at all. Any law can be abused, and occasionally such laws and regulations have been used to try to punish people who do not have politically correct opinions about homosexuality, etc. But when such heretics challenge this, they inevitably win. The Supreme Court, God bless 'em, have been consistently correct about this.

I also agree about the identity politics involved. To be sure, every group will want special mention and will try to use the legislation to leverage its status. But again, that is a common feature of laws in general and civil rights laws in particular.

I think the conservative case is stronger when we acknowledge the need for such laws, but insist that they be crafted in a way that promotes equal protection. When we do that, as occasionally Republicans in Congress do, if only out of necessity, we always look better to most Americans than the other side does.


isn't hate a thought, to begin with? a government has no more authority to make hate a crime than it does infidelity to a certain religion or lust or greed. hate crime IS thought crime. it doesn't need to morph into anything; it already is.

there is no need for hate crime laws. take the shepard case. they didn't need hate crime laws to give his murderers life in prison. they got the maximum penalty that was asked for by the family and the prosecutor. the current laws against murder, assault, terrorism, harrassment, etc have done well enough on their own.

that said, if you gotta have such a law, i agree with you, kb, that a broadly written law could/should cover everyone. for that matter, you don't need to list any specific characteristics or classes, at all. just say that any crime committed out of any bias or hatred, whatsoever, is a hate crime.

and in re the abuse of the law, there are plenty of anecdotes of it already happening to people of faith.

George mason

This has been a good discussion. KB you may have tripped up your argument by stating that "we are all minorities." This is why we look to "equal justice under
law" regardless of race, creed or origin. If we allow the government to provide
additional penalties (or rewards) because of someones race, creed, etc. or
because of what one thinks about the same we will be in a position where the
government can recreate Stalinism on our shores.

P. Chirry

I oppose hate crimes legislation, but to play the devil's advocate:

What about premeditated murder laws? Aren't they just as much "thought crime" laws just as much as "hate crime" laws?

If premeditating a crime can make it worthy of more punishment, then why can't doing it out of hate?


George: I refer you to P. Chirry's excellent comment. Once a real crime is established (murder, assault, etc.), then motive becomes relevant. But that is because motive is part of the criminal act. It doesn't mean that the thought in itself is a crime.

To be sure, there are those who would use hate crimes legislation to attack politically incorrect thoughts and speech. But we should always be on guard against an abuse of otherwise good laws. The Supreme Court has been pretty good on this.


that's what i was saying, p. chirry and kb. motive -- or mens rea (i.e., guilty mind) -- is already taken into account. "hate crimes" laws aren't necessary, as hate may already be used as a factor in determining level of guilt or fault. it was used to prosecute matthew shepherd's killers of murder, rather than manslaughter. didn't need a hate crime law to get that conviction.

but in and of itself, hate is not a crime, nor should it be.


besides, we already have laws against menacing, harrassment, and incitement, as well as murder, theft, assault, etc. hate crimes are superfluous.


Lex: Laws may add and/or emphasize specific aggravating factors. Since there is a tendency in many predators to think that certain kinds of people are easy targets because they do not enjoy as much protection as other people, there is reason to list that as an aggravating factor. I think that can be done in a way that protects everyone. I think that this is a case where offering compromise will strengthen the conservative position.

Let me offer an analogy. Sometimes firemen have been abused by local peoples due to some kind of social rage. Suppose fireman were assaulted and sometimes murdered because of this. Would there be anything wrong with legislation that specified harsh penalties for anyone assaulting a fireman or other emergency workers as they do their duties? I think not. We wouldn't be criminalizing social protest, we would be protecting firemen.

Sometimes laws have to be adapted to specific social circumstances. Perhaps this is one of them.


kb, i go back and forth on those special protections for firemen and cops. but the general hate crimes concept, for me, is an easy one: it's not the government's job to legislate against hate, not greed, not lust.

call it "social protest," if you like, but when the government starts legislating against emotions and thoughts, instead of behaviors and actions, then it's time to head for the hills.


besides, as i pointed out, we already have laws against a social protest that manifests itself as menacing, terrorism, harrassment, and incitement.


Lex: It's the government's job (that's to say our job)to protect people. I argue that hate crimes laws can provide more protection by altering the psychology of people inclined to commit such crimes. If I am right, then such a law does not, in itself, violate any freedoms.


with all due respect, professor, i'm quite sure james madison would disagree with you that the government's job is to alter the psychology of its citizens. it's the government's job to protect people from bad actors and their bad actions, not their bad thoughts.


Lex: The main point of a criminal justice system is to alter the psychology of people inclined to commit crimes. We want them to have certain thoughts, like "I'd better not do that." That is how we protect people.


kb, i have to respectfully disagree with your assertion that the government's job is to "alter the psychology" of (potential) criminals. on what do you base that assertion?

i base my assertion -- that it is merely to punish those who do wrong and commend those who do wrong -- on the writings of the likes of william blackstone -- probably the biggest influence on the founding of our nation, after the Bible -- and bracton. speaking of the Bible, read 1 Peter 2:14 and Romans 13: 3-4.

i'm not sure how "altering the psychology" of the citizenry fits into our retributive/restorative system of criminal law.

even o.w. holmes - i can't believe i'm quoting him -- said: "If it were [that the purpose of punishment is to reform the criminal], every prisoner should be released as soon as it appears clear that he will never repeat his offence, and if he is incurable he should not be punished at all. Of course it would be hard to reconcile the punishment of death with this doctrine."

Jackie  Hutchins

I have never seen this movies before and it touch me deeply. I love everybody and is not a judgmental person.I think that it was very wrong, VERY WRONG. I pray each and everyday that they will never ever get out. To be left for 18 hours and to suffer is horrible. (RIP Matthew Shepard )


The original account I have read said that the two men pretended to be gay, picked Matthew up in a gay bar, and coerced him to come with them in their van. They stripped him, poured gasoline on him, and left him to died tied up to a split rail fence in the middle of no where. It WAS a hate crime - and they were in a gay bar picking up a gay man, this was no robbery.


A beautiful song for Matthew by dutch band A Balladeer:


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