Acts of violence against individuals are deplorable. But there seems to be something especially despicable about attacking someone purely because of that person’s ethnicity or gender or sexuality. This type of violence seems to be driven by hate for what people are as opposed to violence committed for gain (say as part of a robbery) or that is random and can be blamed on the pathological mental state of the perpetrator.
This is why legislation requiring harsher penalties for hate crimes have so much appeal and we now have such a federal law on the books that metes out stiff punishments for offenses motivated by actual or perceived race, color, religion, national origin, sexual orientation, gender identity, or disability. The expansion to cover sexual orientation and gender identity took place in 2009.
One cannot argue that it is only the degree of harm done to the victim that should be taken into account. Motive is an appropriate factor in judging punishment and we hand out different penalties for accidents, manslaughter, crimes of passion, or premeditated murder, even though the victim died in each case. But once you have established that a crime had intent and a motive, should it matter what that motive is? Is someone beaten up by a mugger somehow less a victim than one who is beaten because of ethnicity or any of the other categories of hate crimes?
I can see one reason in support of hate crimes legislation. One could make the case that society has an interest in discouraging groups of people going to battle with each other and hate crimes legislation are meant to discourage such tribal feuds from getting out of hand, while crimes by individuals against other individuals for everyday motives do not risk leading to escalations of hostilities or create a sense of generalized fear among members of the targeted groups. But is there any evidence that such hate crimes penalties have had a dampening effect on potential group conflicts?
Hate crime motivation laws do have a downside. While these laws have a worthy goal in mind in that they seek to protect vulnerable groups from harm by allowing for stiff punishments to be imposed on those who attack members of such groups precisely because of their group identity, elevating some motives above others is something that is fraught with the potential for abuse, especially by overzealous prosecutors.
An example is that of the weird Amish beard cutting case that I wrote about earlier, where the followers of Sam Mullet, the leader of a breakaway Amish group, forcibly entered the homes of those they considered heretics and enemies and held them down while shaving their hair and beards but otherwise did not physically harm them. In order to get stiff sentences imposed on Mullet and his followers, the US attorney Steven Dettelbach went to great lengths to turn what would normally have been a local case involving a feud between rival Amish groups into a federal hate crime.
Jacob Sullum describes how they did it.
Federal prosecutors said that religious motivation made the attacks hate crimes.
Is that really all it takes to make a federal case out what would otherwise be run-of-the-mill state crimes (albeit with a quirky Amish twist)? No, there are a couple of other elements that prosecutors had to allege. Since the federal hate crime statute applies to offenses involving actual or attempted “bodily injury,” they had to argue that shorn whiskers and hair qualify for that description—a bit of a stretch. While it’s true that such forcible makeovers are especially humiliating for the Amish, who consider long beards on married men and long hair on women religious requirements, this infliction of extra emotional distress does not change the physical reality of the act.
The government also had to cite an “interstate nexus” to justify federal prosecution. You might think that would be a challenge, since all of these crimes occurred within a single state. But hey, look, Dettelbach says: The “Wahl battery-operated hair clippers” used in the assaults “were purchased at Walmart and had travelled in and affected interstate commerce in that they were manufactured in Dover, Delaware.” The defendants also used “a pair of 8” horse mane shears which were manufactured in the State of New York and sent via private, interstate postal carrier to [a retailer] in Ohio for resale.” They took pictures of their victims with “a Fuji disposable camera from Walmart” that “travelled in and affected interstate commerce in that it was manufactured in Greenwood, South Carolina.” They used “an instrumentality of interstate commerce” (i.e., a highway) to reach victims in Trumbull County, Ohio. (They never actually left the state, but they could have.) The indictment also mentions a letter (carried by the U.S. Postal Service!) that was used to lure one of the victims. An embarrassment of interstate nexuses, in more ways than one.
As Sullum notes, this case represents an extraordinary expansion of what constitutes a hate crime.
By the legal logic applied in this case, any religious leader who uses corporal punishment to discipline wayward followers is guilty not just of assault but of a federal hate crime. Likewise a Hassid who slugs another Hassid after getting into an argument about who the next rebbe should be, two Catholics who come to blows over the merits of the Latin Mass, or two Mormons who tussle after one condemns the other for drinking caffeinated soft drinks. In each of these cases, the victim is selected “because of” his religion in the same sense that Mullet et al.’s victims were. Indeed, although the trial judge rejected the argument that bringing this case violated the First Amendment rights of Mullet and his co-defendants, they are effectively being punished for their religious beliefs, since they would not have been prosecuted under federal law if their motivation had been nonreligious. Under the Justice Department’s reading of the law, an assault is a hate crime if it is driven by disagreements over religious doctrine but not if arises from political, scientific, philosophical, or aesthetic disputes.
In another post, Sullum points out the dangers of using hate crimes this way.
It has always been true that hate crime statutes punish people for their bigotry, since the same actions are subject to more severe penalties when they are motivated by animosity toward the victim’s group. But treating Mullet’s offense as a hate crime sets another dangerous precedent, effectively punishing him for his religious beliefs. If the beard-cutting rampage had been motivated by political differences, personal animosity, or sheer orneriness, Mullet never would have been eligible for a life sentence. That became a possibility only because Mullet wanted to punish people he viewed as heretics. And by Dettelbach’s logic, any assault stemming from internecine religious disputes is a federal hate crime, even though that is surely not the scenario members of Congress had in mind when they passed the law under which Mullet was charged.
Perhaps it is the inclusion of religion in the list of protected categories that is the problem. All the others (race, color, national origin, sexual orientation, gender identity, or disability) are factors that the individual has no control over and cannot change, while religion is a chosen allegiance like in politics or sports team fandom. What is the difference between what Mullet and his followers did and a Cleveland Browns fan who assaults someone wearing a Pittsburgh Steelers sweatshirt because of the long-standing rivalry between the two teams or a Republican party supporter beating up someone wearing an Obama button?
On the other hand, religious conflicts have historically been some of the most vicious, so trying to discourage them through legislation may be worthwhile, though I do not know how effective such laws are.
It is a complicated issue for which there is perhaps no easy answer. What we could perhaps agree on is that over-zealous prosecutors should not be allowed to go to extreme lengths to bring ordinary crimes under the hate crimes umbrella just so that they can seek harsher penalties.