Outlawing Terrifying Hate Crimes

We libertarians usually dislike hate-crime laws. These laws increase the sentence for crimes motivated by bigotry, and that just sounds an awful lot like a thought-crime to me.

Kip Esquire doesn’t see much of a problem with this. He points out that we already have “therapy courts” that treat people more leniently for crimes committed out of drug addiction and now even gambling addiction.

To insist, as most bigots — and a few radical libertarians — do, that “a crime is a crime” and “we shouldn’t punish thought” is to ignore the everyday reality of the entire criminal justice system.

We punish the same crime differently under different circumstances all the time. We punish the addict check-kiter differently than the sleazeball check-kiter. But isn’t check-kiting check-kiting? Why should we care what the motivation was? Isn’t that “punishing thought”?

We punish the repeat offender differently than the first offender. Why — isn’t a crime a crime?

First of all, I don’t think “the everyday reality of the entire criminal justice system” is a good guide to morality. Keep in mind that it wasn’t too many decades ago that harassing gays and blacks was business as usual over there.

Second, I don’t think Kip’s observations about the justice system lead him where he wants to go.

As I understand it, the justification for punishing gambling addicts less is that they are in the uncontrollable grip of their emotional response to gambling and therefore not entirely responsible for their actions. The justification for punishing repeat offenders more is that they are dedicated criminals who won’t respond to mild punishment.

So, when confronted with anti-gay hate violence, how should we punish it compared to non-hate violence?

1. It should be punished more, because its perpetrators are dedicated bigots, or
2. It should be punished less, because its perpetrators are in the uncontrollable grip of their emotional response to homosexuality and therefore not entirely responsible for their actions?

I am very skeptical of hate crime laws, but if we’re going to have them, we obviously don’t want hate crimes to reduce the penalty, so if those are the only two choices, then I think we all agree that the first one is the way to go and the second one is a very bad idea. But Kip’s argument doesn’t give us any way to choose.

How is shooting a guy because he’s gay, for example, any worse than shooting a guy because he cut you off in traffic? To put it another way, why should the road-rage shooter get a lighter sentence than the bigoted shooter?

Some people argue that we need hate crime laws so we can punish crimes such as burning a cross on a black family’s lawn. That’s nonsense. Arson is a crime, and setting a fire on someone’s lawn is clearly arson, regardless of what you’re setting on fire.

The real question is whether a guy who burns a cross on the lawn of a black family should get a harsher sentence than a guy who sets fire to a pile of old newspapers on their lawn?

Well…yeah. Despite my dislike for hate crimes legislation, my gut reaction is that burning a cross in front of a black family’s house is a much worse crime. It’s a little hard to pin down why, but I don’t think it’s all in the perpetrator’s mind.

Here’s my best attempt at an explantion of what the difference is: The black family occupying the house would be a lot more scared of a burning cross. That’s because burning trash is just burning trash, but a burning cross is a threat of much worse yet to come. It’s the “threat of much worse” that makes this a more serious crime.

Threatening people has always been a crime—that’s what an assault is—so there’s nothing novel about punishing someone for the inherent threat behind a cross burning.

Note that it’s not just the one black family that has been threatened. A cross burning is usually understood as a threat against all black families in the area.

Similarly, killing a gay person and writing “Death to F**s!” at the crime scene is clearly a threat against all gay people in the area, perhaps with the intent to scare them into leaving.

There’s a word for violent crimes that are intended to frighten other people and influence their behavior. We call that terrorism.

We would do better to draft our hate crime laws so they focus on the terrorism aspect of these crimes—the use of violence as a threat of more violence—rather than internal thoughts and feeling of the perpetrator. This avoids concerns about creating thought crimes.

It also avoids having to list the protected groups in the legislation, and the potential for leaving something out. For example, I think a typical hate crime law might enhance the punishment for killing someone because of their race, religion, ethnicity, country of origin, sex, or sexual orientation. But I’ve never heard of an anti-hate law that increases the penalty for killing someone because of their employer.

This means that if some anti-Walmart lunatic decides to start killing Walmart employees and writing “Death to Walmart!” at the scene, it will not be treated as a hate crime, even though it is quite analogous the the gay killing scenario above. But if we enhance the punishment because of the terroristic nature of the killing, we don’t end up ignoring a threat against thousands of local Walmart employees just because the legislature didn’t think of Walmart haters.

Update: Second thoughts.