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Archive for Saturday, April 27, 2002

Punishment should fit the (hate) crime

April 27, 2002

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So, what about hate crimes?

I figured some of you would ask me that question after the column I wrote last week, and you didn't disappoint. That column criticized laws designed to punish people who write, draw or create digital images of child pornography. Repulsive stuff, to be sure, but stuff that does not harm, exploit or require the participation of any actual, living child. As such, I said, those laws cross the line from legitimate concern for protecting children into the constitutionally impermissible area of policing thought.

Which is when a few readers brought up hate crimes. If it's wrong to punish people for what they think, they said, how can anyone support laws mandating stiffer penalties for crimes motivated by antipathy toward a particular racial, religious, sexual or gender group? Isn't that the same as criminalizing socially unacceptable beliefs?

It is, I must admit, a good question. In fact, the first time I encountered that reasoning, a year or two ago, I had to chew on it a few days before I could answer. Which only goes to show that I must be slipping in my dotage because the answer, when it came, was pretty obvious.

Hate crime laws don't criminalize socially unacceptable beliefs. They ratchet up the penalties for crimes committed out of those beliefs. There's a difference.

Let's be clear here: The white woman who thinks blacks are talking apes, the black man who believes whites are verminous devils, the religious fundamentalist who considers gays disgusting perverts, the Gentile who regards Jews as scurrilous moneylenders each has an absolute right to stand on a street corner and proclaim such ignorance to his or her heart's content. A right to promote it in pamphlets, books and websites.

Government cannot, ought not and must not infringe that right. Extreme views are the price and, paradoxically enough, the glory of freedom. God bless America.

But what about when extreme views cause an assault, or a killing? Well, I'd argue that there's little comparison between that scenario and the child pornography law I criticized last week. In the one case, the belief itself is the infraction. In the other, an infraction has been committed independent of what the person believes.

In the case of a hate crime, by definition, the crime, in fact, has already been committed whether it's vandalism, assault or murder. The only question is punishment. Meaning, whether it's fair to take into account a person's views in calculating the penalty for his misdeeds. Do we, as a society, have the right to express our rejection of an individual's thinking through the proxy of the criminal courts?

The answer is, yes. We do it all the time.

Consider: The man who shoots his girlfriend in a fit of blind rage after finding her in bed with another man is likely to be judged with more sympathy than the one who shoots her because she wanted to break off the relationship. The wife who kills her husband after traumatizing years of physical abuse can expect to be treated more leniently than the one who kills him because she wants the insurance money.

It's called motive. We frequently allow it to shape our perception of a given crime, so why should crimes of bias be any different?

Is the person who spray paints "Harry + Jane 4ever" on your back fence really guilty of the same offense as the one who paints "Death To Jews" on the side of the synagogue? Has the person who TP's your house really committed the same infraction as the one who burns a cross at the home of the black family next door?

Of course not. The one is a crime against you. The other is a crime against us all, a knowing attempt to terrorize a subgroup of the general society. A group that has already known all too much of terror.

It's important to energetically defend the right of the biased to be biased and the ignorant to be ignorant. But when exercise of that right leads to a wrong, it's equally important to make a statement about what sort of society we wish to be, what kinds of values we hold important.

It's important to call the crime what it is. And shape the punishment to fit.




Leonard Pitts Jr. is a columnist for the Miami Herald.

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