Pandering to the aggreived: Hate crimes laws are unjust

Jacob Sullum fisks the Pelosi Democrats for misguided and unconstitutional "hate crimes" legislations. Of course hate is the eye of the beholder which takes the shape and thrust of creeping federal government.

The bill, which the House passed and President Bush has threatened to veto, expands the federal government's involvement in prosecuting bias-motivated crimes by eliminating the requirement that victims be engaged in a federally protected activity such as voting. It also adds four new bias categories (gender, sexual orientation, gender identity, and disability) to the existing four (race, color, religion, and national origin).

Religious conservatives warn that the bill, combined with existing federal penalties for anyone who "counsels," "commands," or "induces" someone else to commit a crime, could be used against a pastor who condemns homosexuality if one of his congregants later assaults gay people. This seems like a stretch, especially in light of the well-established First Amendment rule that speech can be punished in such a situation only if it is intended to incite "imminent lawless action" and is likely to do so.

But it's not a stretch to say that hate crime laws, by their very nature, punish people for their opinions. A mugger who robs a Jew because he's well-dressed is punished less severely than a mugger who robs a Jew based on the belief that Jews get their money only by cheating Christians. A thug who beats an old lady in a wheelchair just for fun is punished less severely than a thug who does so because he believes disabled people are leeches.

The rationale for such unequal treatment is that crimes motivated by bigotry do more damage than otherwise identical crimes with different motivations because of the fear they foster. Yet random attacks arguably generate more fear, and hate crimes cause anxiety in the targeted group only when they're publicized as such. In any case, judges can take a crime's impact into account at sentencing.

Even if states were justified in punishing bigoted criminals more severely than merely vicious ones (as all but a handful currently do), the case for federal action would be weak. Unlike the situation in the Jim Crow South, there is no evidence that state and local officials are ignoring bias-motivated crimes.

The hate crime bill, which authorizes federal prosecution whenever the Justice Department perceives a bigoted motive and believes the perpetrator has not been punished severely enough, continues the unfortunate tendency to federalize crimes that are properly the business of state and local governments, just so legislators like Nancy Pelosi can show they care. Although the Bush administration claims to be concerned about this trend, the details of its objections to the bill (not to mention its history of supporting unconstitutional expansions of the federal government) suggest otherwise.

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