Hate Crimes Laws: Making Thoughts a Crime
Source: Concerned Women for America, 1015 Fifteenth St. N.W., Suite 1100, Washington, D.C. 20005
Phone: (202) 488-7000, Fax: (202) 488-0806, E-mail: mail@cwfa.org
Hate Crimes Laws: Making Thoughts a Crime
May 1999
Air Force Academy cadet David Graham and Annapolis cadet Diana Zamora killed a teenage girl who had sex with David. Both cadets were found guilty of capital murder and sentenced to life imprisonment.
Brian Stewart didn?t want to pay child support. So he injected his 11-month old son with HIV. Today, the seven-year-old boy is doomed to a slow tortuous death. Stewart will spend the rest of his life behind bars.
Aaron McKinney and Russell Henderson allegedly robbed a college student, pistol-whipped him, tied him to a log fence and beat him into unconsciousness. Matthew Shepard died five days later. The prosecutor is seeking execution.
All of these brutal crimes should stir a sense of outrage, making one wonder, “What kind of monster could do that to another human being?” All brutal acts are fueled by hatred. Yet only Aaron McKinney and Russell Henderson have been accused of committing a “hate crime” because Matthew Shepard was a homosexual. Does this make his life worth more than the young girl or more than an innocent infant? We should be shocked and outraged at the brutality of the criminal who killed Matthew Shepard—but no more than at a father who would condemn his own son to a life of pain and premature death.
The push for federal hate crimes legislation has grown stronger since the senseless murder of Matthew Shepard in October 1998. According to the Anti-Defamation League (ADL), a hate crime is any crime committed because of the victim?s actual or perceived race, color, religion, ancestry, national origin, disability, gender [male or female] or sexual orientation. Already, 41 states have “hate crimes” laws, and 22 include sexual orientation. Most of the laws provide enhanced penalties for crimes committed with “hate.”
Problems With Hate Crimes Legislation
Hatred toward any group or individual because of race, creed, color or lifestyle choice is wrong. But hate crimes laws infringe on free speech. Americans have always had the right to hold any opinion and to speak freely. The First Amendment protects that right whether the idea or thought is good or bad. But it does not recognize a right to act on those evil thoughts or ideas. The courts must step in when a criminal act is committed, no matter what thought or motive was behind the behavior.
By criminalizing thoughts rather than action, hate crimes laws infringe upon the First Amendment protection of free speech. Even advocates admit this.
“The law historically has gone against punishing people for their thoughts, and that is what hate-crimes laws do. That?s what makes it so delicate,” says Kelly Anders, a policy associate for the National Conference of State Legislatures in Denver. “You have to make sure when you?re drafting legislation that you?re not punishing people for their thoughts. And that?s a very difficult thing, because that?s what it is.”1
Civil government cannot successfully ban feelings, thoughts or beliefs—things like hate, jealousy or lust. But it can, and must, prosecute criminal acts which result from those evils. Proponents of hate crimes laws decry the fact that Wyoming has no such law. Yet Aaron McKinney and Russell Henderson will be tried for the crime they allegedly committed: murder. In fact, prosecutors are seeking the death penalty for the defendants.
The civil government has a duty to punish wrongdoers. However, civil government should not be permitted to categorize a person?s beliefs as “approved” and “disapproved.” When individuals are prosecuted under hate crimes laws, the trial can become a wide range inquiry into the defendant?s beliefs. In People v. Lampkin,2 the prosecution presented evidence of racist statements the defendant had uttered six years before the crime was committed.
Currently, the homosexual lobby ardently supports hate crimes legislation. Where hate crimes laws already exist, this powerful lobby is pushing to include sexual orientation as well. However, civil rights laws are normally based on immutable characteristics—which cannot be changed—such as skin color, sex or disability.3 Adding sexual orientation to hate crimes laws wrongly legitimizes the claim that sexual orientation is immutable rather than chosen behavior. Therefore, those who hold religious or moral objections to homosexuality could be prosecuted for “hate.”
Witness Senator Trent Lott?s (R-Mississippi) vilification for his commentary on the “Armstrong Williams Show” in June 1998. The senator responded to the host?s question: “Do you think homosexuality is a sin?” He replied: “Yeah, it is. You should love that person. You should not try to mistreat them or treat them as outcasts. You should try to show them a way to deal with that problem, just like alcohol, or sex addiction or kleptomaniacs.” The homosexual lobby responded with vengeance:
“Lott?s mean-spirited pronouncements are part of an escalating pattern of political gay-baiting?hate rhetoric from anti-gay extremists and those who pander to them.”
—Brian K. Bond, Executive Director, Gay & Lesbian Victory Fund
“It is unfortunate that Sen. Lott has such an ill-informed and hateful response to what is a naturally and healthfully occurring aspect of humanity.”
—Debra Kolodny, National Coordinator, BiNet USA, the Bisexual Network of the USA
“To have the leader of the U.S. Senate engaging in this kind of scapegoating and hate mongering is moral outrage.”
—Rebecca Isaacs, Political Director, National Gay and Lesbian Task Force
It is easy to see how hate crimes laws could be used to silence opposition to the homosexual lifestyle.
Another problem with hate crimes legislation is that all criminals operate on the basis of impure motives or hate. Criminals certainly don?t act out of love for their victim. In the case of rape, it can be argued that the victim is always chosen on the basis of gender. Hate crimes laws could effectively remove rape from state prosecution and place it under federal prosecutors? jurisdiction, violating the constitutional principle of federalism.
Federalism is the framework in which the federal, state and local governments co-exist. The Constitution gives the federal government specific responsibilities, such as declaring war and regulating trade, but all other responsibilities remain with the states. The Tenth Amendment makes this clear. Punishing criminals, like thieves and murderers, is primarily a state responsibility.4
By contrast, federal hate crimes laws appear to be part of a trend to federalize crime. If passed, their enforcement would require aggressive use of federal resources.5 Judge Richard J. Arcara testified before the Senate Judiciary Committee that this trend “places the viability of judicial federalism—the principle that the state and federal courts together comprise an integrated system for the delivery of justice in the United States—unquestionably at risk.”6 The federal government has already usurped much of the authority which has traditionally been the exclusive domain of states. Hate crimes should not follow this trend.
Finally, a federal hate crimes law would create a double jeopardy problem. Double jeopardy means a defendant is tried for the same crime twice. The Fifth Amendment prohibits it. If a federal hate crimes law is enacted, a person could be prosecuted twice, first by the state—for the crime—and by federal authorities for the hate crime. This violates the intention of the constitutional prohibition of double jeopardy, if not the letter of the law.7
Conclusion
All crimes are abominable and should be prosecuted to the full extent of the law. Crimes committed against people based on their sexual behavior are no exception. However, enacting a federal hate crimes law will victimize Americans? First Amendment rights and continue to erode the principles of federalism.
End Notes
1. Rick Lyman, “Hate Laws Don’t Matter, Except When They Do,” The New York Times, 18 October 1999, D6.
2. People v. Lampkin, Supreme Court of Illinois, 1983.
3. Religion is the only exception. Because the First Amendment protects our beliefs, religion is included in civil rights protections.
4. There are a few exceptions to this due to the uniqueness of a particular crime and its effects—such as the interstate trafficking of drugs and international terrorism.
5. U.S. Senate, Committee on the Judiciary, S.1529: The Hate Crimes Prevention Act of 1998, 105th Congress, 2nd session, July 8, 1998.
6. Ibid.
7. Justice Hugo Black argued in his dissenting opinion in Bartkus v. Illinois (1959) that two trials for the same crime offend the Constitution, no matter which authorities are prosecuting: “The Court apparently takes the position that the second trial for the same act is somehow less offensive if one of the trials is conducted by the federal government and the other by the state. Looked at from the standpoint of the individual who is being prosecuted, this notion is too subtle for me to grasp.”
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