Hate Crimes Legislation
2009-07-25 · Guest: Jacob Sullum (Senior Editor at Reason Magazine) · 60:02
Critique of Hate Crimes Legislation and Federalism
Bob Zadek and Jacob Sullum critique hate crimes legislation, specifically the Matthew Shepard Act. They argue that such laws violate principles of federalism, create “special classes” of citizens, and unconstitutionally punish thoughts and speech rather than just actions.
Topics: Hate Crimes, Matthew Shepard Act, Federalism, Double Jeopardy, First Amendment, Identity Politics, Criminal Justice Reform
Speakers:
- Bob Zadek: Host
- Jacob Sullum: Senior Editor at Reason Magazine
- Caller (Allen): Listener from San Francisco
- Caller (Al): Listener from San Francisco
- Caller (Dorothy): Listener from Mill Valley
Introduction to Hate Crimes Legislation [06:16]
Bob Zadek: Good afternoon to everybody. Welcome to the Bob Zadek Show. I’m your host, Bob Zadek, here on Talk 910, KNEW. 800-345-5639. 800-345-KNEW. Or if you’re shy and retiring, Bob@BobZadek.com. Today’s topic: hate crimes legislation. My guest, Jacob Sullum. Jacob is the author of two fascinating books: Saying Yes: In Defense of Drug Use and For Your Own Good: The Anti-Smoking Crusade and the Tyranny of Public Health. Jacob is the senior editor at Reason Magazine and has written extensively on the subject of hate crimes legislation. Hi, Jacob. Thanks for joining us.
Jacob Sullum: Hi. Thank you.
Bob Zadek: Now, hate crimes legislation seems like something that I ought not be getting in such a dither about. After all, all it does is, in part, increase the penalty for people who do criminal acts. So why do I care? Don’t I want people locked up for as long as they possibly can be? Don’t I favor the strong enforcement of criminal law? Well, sure I do. Yes to both. But hate crimes legislation is wrong on so many bases and at so many levels that hate crimes legislation virtually in and of itself is a microcosm of all of much that is wrong with legislation in our country.
The Problem with Group Identification [07:44]
Bob Zadek: Now, what is hate crimes legislation? Hate crimes legislation, in general, identifies certain special groups—gender, sexual orientation, national origin, religion—and says if you do bad things to people in these lucky classes, then it is possible that the punishment that’s imposed upon you is greater than if you messed up somebody who is not in one of those classes. In other words, it creates, again, group identification and in a very simple way says that certain lives are, in fact, more valuable than other lives. And it puts people in this mindset of jealousy. “God, I want to be in that protected class so people are less likely to mess me up because they get an enhanced sentence.” So on the one hand, it fosters group identification, which is horrible in a country where we all should be citizens, not members of eight zillion different groups.
Federalism and Double Jeopardy [09:01]
Bob Zadek: Second of all, it puts federal law right smack in the middle of criminal law, which has always been the province of the states. States, since the country was founded, states have been in charge of determining what acts are crimes and setting the punishment. That’s not the province of the federal government. We have no federal police force, at least not yet. So the feds have other things to do rather than mess with criminal law, but instead they’re in the thick of it, violating core principles of federalism.
So hate crimes legislation messes up the state-federal relationship, interferes in criminal law, and far worse, it creates class and group jealousy and class and group identification, which is harmful to all of us Americans because we now—it sets up this bidding war when more and more pressure groups want to be included in the “my life is more valuable” list. Jacob, did I sum it up pretty good?
Jacob Sullum: You hit most of the major points. I would add a couple of problems, especially with the federal hate crime legislation. And we should make it clear that this has passed by both houses of Congress, so it looks likely that it’s going to be enacted in some form. In addition to this problem of the federal government getting involved in things it has no authority to be involved in under the Constitution, you create a double jeopardy problem.
Bob Zadek: Now, let me explain double jeopardy just for the audience, because some people in the audience—a few—are not constitutional law scholars. So let me just tee up the issue of double jeopardy because it’s real important. The Fifth Amendment to the Constitution says, “No person shall be subject for the same offense to be put twice in jeopardy.” You can’t be tried twice for the same act. And that’s core constitutional law. Under the hate crimes legislation, which creates a new federal crime, if you’re not tried or if you’re tried and acquitted at the state level, now the feds come in and say you’re messing with a gay or you’re messing with a transgender or you’re messing with a Jew, so we’re going to try you again for the same crime, violating a core principle of the Constitution. Sorry, Jacob.
Jacob Sullum: That’s okay. Yeah, so basically this sets up a situation where so much crime is potentially federalized. It’s within the discretion of U.S. attorneys to decide if they don’t like the outcome of a particular criminal case because somebody that they thought was guilty was in fact acquitted in state court, they can try that person again. Now, it’s not considered to be double jeopardy by the Supreme Court because the Supreme Court has said that because there are two different governments involved, two different sovereigns, this is in effect two different crimes even though the underlying behavior is exactly the same.
Broadening Federal Jurisdiction [12:17]
Jacob Sullum: So a couple of examples that spring to mind are the Rodney King case and also the Crown Heights riots case. Both of those happened in the same year, in ‘91. And what happened in both those cases, you had defendants who committed crimes of violence—in one case police, in the other case a rioter—who were acquitted in the first go-around in state court. And then the federal government said, “We’re not happy with that, and we’re going to prosecute you again until we get the right result, until we get the result we want.”
So that certainly can happen. And it’s especially troubling that the way that the federal bill defines what falls under federal jurisdiction is so potentially broad. It could, for example, include almost all rapes, because one of the categories of crime is a crime that’s committed because of someone’s gender. Well, you could argue that almost all rapes are committed because of somebody’s gender. Therefore, almost any rape case could become a federal case, and it could be the case that someone is acquitted in state court and then tried again in federal court.
Bob Zadek: And it should be mentioned on the subject of rape, just if I can interject, Jacob, that Ted Kennedy, one of the sponsors of the bill—Ted Kennedy said, “That’s not my intention to federalize the crime of rape.” However, the U.S. Department of Justice, when asked about this issue, demurred and said, “Well, we’ll see when the time comes.” And given the power of the women’s lobby in the federal—in the Democratic Party, I have no doubt that rape will soon become a federal crime as well as a state crime, exposing—not that I of course wish to protect anybody who commits any crime—but exposing an alleged rapist to double jeopardy.
Jacob Sullum: Yeah, and I think that the language is quite clearly there. So it’s at their discretion. And maybe even this Justice Department is not going to do that. Maybe they think they’re not going to do it, but they’ll decide differently later, or another administration will come in and decide to do it. The language is there, the power is clearly there to do it that way.
And if you look back at the Violence Against Women Act, that created a federal cause of action in cases like of rape. And in fact, that was the case that went all the way to the Supreme Court, and the court said no, there can’t be a federal cause of action for something like this because what is the rationale for the federal government to get involved? Now, the problem with that is that Congress had not gone to the trouble of laying out what the federal nexus was. Now, so it remains to be seen what will happen if a case like that, but a criminal case and not a civil case, gets up to the Supreme Court and they say, “Is there actually a legitimate grounds for the federal government to be involved?”
The way it’s defined—I mean, look at the bill that the House passed. Look how broadly the federal nexus is defined. I am not exaggerating at all when I say that if you use a weapon that is made in another state, that’s a federal nexus. That means that they can prosecute this at the federal level. If a victim of a crime—if that crime interferes with their economic activity, that therefore supposedly affects interstate commerce. That’s a federal nexus. So basically, it’s incredibly broad. And so it remains to be seen what’s going to happen with federal cases that are brought under that rationale.
Bob Zadek: So my question to the audience out there—and it’s relevant because Congress just enacted what has been nicknamed the Matthew Shepard Act, which brings sexual orientation into hate crimes legislation, enhancing the sentence. Does anybody out there think that’s good policy, good law? Should crimes against gays be subject to enhanced penalties, or should the law be left as it is? 800-345-5639. If you believe this is a good idea, Bob@BobZadek.com if you believe it’s a good idea but choose to email. Jacob and I are talking about hate crimes legislation, the intrusion of federal law into state criminal law. We’ll be right back.
Punishing Thoughts and Madison’s Vision [19:01]
Bob Zadek: This is Bob Zadek, host of the Bob Zadek Show, Sundays at noon at Talk 910, KNEW. 800-345-5639 is our number. 800-345-KNEW. Or if you wish to email, Bob@BobZadek.com. Today’s topic is the Matthew Shepard Act. The Matthew Shepard Act is a piece of federal legislation enacted by both houses of Congress, should be signed by President Obama. What it does is it enhances the sentence for people who commit violent crimes against gays. And hate crime in general, hate crimes legislation creates a hierarchy of life. It says harming a gay person, harming somebody because of their sexual orientation or their religion or their national origin, harming them is a more serious crime than harming me, because I’m such a loser, I’m not in any of those protected groups. So harm me all you want, you get a free pass, but if you harm one of the protected classes, you go to jail for a really long time.
Is that good policy? That’s the question for the day. Should gays, women, national origins—all of these enhancements, should they exist as a matter of law at all, and should they exist as a matter of federal law? And it’s always a good idea to go back to the founders and try to figure out how they might have felt about this. James Madison, my third favorite founder, wrote to Thomas Jefferson early on in the history of our country. Thomas Jefferson had just been instrumental in enacting the Virginia Statute on Religious Freedom, which for the first time protected the conduct of a religion. Jefferson felt very strongly about this, and Madison, in writing to Jefferson, said, “We have in this country extinguished forever making laws for the human mind.” Later on, Madison observed that no longer would anybody be punished for their thoughts.
Well, Madison proved to be wrong, because hate crimes legislation punishes people because of what they were thinking when they committed a crime. I guess when Madison was writing to Jefferson, he didn’t realize that criminal law would have the ability to read people’s minds and determine their secret, private thoughts and intentions. Because today, since the criminal justice systems believe they can do that, now you are punished for what you were thinking when you committed a crime. So if you’re going to beat somebody up, you better beat somebody up who you really love, because if you hate them, you go into the slammer for a longer period of time.
Perceived Status and the First Amendment [22:51]
Bob Zadek: Jacob, we have Allen from San Francisco who has an interest in this legislation. Allen, welcome to the show.
Caller (Allen): Yes, you know, I keep bringing up over and over that people throw this word “gay” out there, and there’s people that actually believe there’s a gay gender or a gay gene, which biologically and medically, there is no gay gene or no gay gender. So I would ask—I don’t know why they’re debating this law saying someone is gay. Tell me what you define gay as. A homosexual behavior?
Bob Zadek: Well, it’s not a question of that, as Jacob I think can chime in. It’s a question of what the perpetrator perceived. It’s not a question of whether he was correct.
Jacob Sullum: That’s right. That’s one of the interesting wrinkles of these laws is that it hinges on the perceived status of the victim, right? So you could attack somebody thinking they were a Jew and they weren’t a Jew, right? You would still be guilty of a hate crime. You could attack somebody thinking they were gay and it turns out they’re not in fact gay, but because of that perception, your penalty is enhanced.
And the point you just made about beliefs is crucial. There’s no way that you can avoid punishing people for their beliefs when you enhance penalties or make double jeopardy possible in these cases where people target people based on their membership in a particular group that they don’t care for. I mean, that’s what this comes down to. There are certain groups people have hateful ideas about. They’re anti-Semitic or they’re racist or they’re homophobic or they’re misogynist or what have you, and they are being punished not just for the actual actions they take, for the things they do, the way they harm people—they’re being punished for those ideas.
Bob Zadek: So Allen, it doesn’t depend upon whether or not somebody is a homosexual, whatever that might mean, or somebody is a Jew. It only matters—and this is the real awful part of it—what matters is what the perpetrator was thinking. It’s an enhanced penalty for what you thought. It’s reading your mind.
And also, as evidence of that, if somebody says, in committing a violent crime, uses the word “kike” or “mick” or “dago,” that will be evidence of what they were thinking, which means enhanced penalty for speech—something which was the anathema to all of the founders. Unpleasant thoughts, hateful thoughts are not against the law. Hateful speech should never be against the law. And now it just about is going to be against the law. Once we start penalizing what you say and what you think, we’re going down a road from which there’s no return.
Jacob Sullum: Yeah, and you know there’s been a big division within the ACLU about this issue for years and years. And they for a long time had reservations about federal legislation, about the Matthew Shepard Act. They recently have decided that as long as there’s a provision in there saying that you cannot introduce conduct that’s protected by the First Amendment as evidence unless it’s directly related to the crime—that’s the provision that they want in there. As long as that’s in there, they’re comfortable with this bill.
And it’s important to note that the House version has that provision, the Senate version does not. It’s not clear what’s going to be in the final bill. But it’s inevitable, even if you have a provision like that, that if you’re trying to figure out, “Was this guy motivated by bigotry when he attacked his victim?” you’re going to want to know, “What are his beliefs? What’s the evidence of his motivation?” It’s going to have to go to his beliefs. So I don’t really see how the ACLU thinks that’s going to protect people’s First Amendment rights. They’re inevitably going to be punished for their speech and for their ideas, in effect for things like their reading habits and the groups that they belong to. That can constitute evidence of their motivation in committing a particular crime. So I don’t see how you can avoid introducing that as evidence.
The 14th Amendment and Modern Context [28:11]
Bob Zadek: So now we have the criminalization at the federal level, the criminalization of what you think and what you said. What could be more anti-American than that? The lesson: if anybody out there is considering perpetrating a violent crime, if you want to be on the safe side—I’m now giving you some free legal advice—you better commit a violent crime against somebody you really love, unless you’re going to go away for a really long time. That’s the lesson of this federal legislation.
Now, there’s another core issue. Should the federal government be involved in criminal law at all? That has always been the province of the states. The federal government has enough to do with terrorism and minting money and running the post office and doing all the federal kinds of things set forth in the Constitution. The founders never contemplated anything to do with criminal law at the federal level except for crimes against the country, such as treason or counterfeiting. Stuff like that. They never contemplated that committing an assault would be a federal crime. We are virtually getting rid of the states as important players in the area of criminal law, and that violates the principles of federalism. Legislation such as this should be done at the state level so states can experiment, figure out what’s best, copy from one another. Those are the incubators of legislation, not at the federal level.
And also, Jacob, we can speak to this, is what we have is we have this pandering. So that whenever a group wants—whenever a legislator wants to curry favor with a group, clearly for political purposes, they say, “You know what? Vote for me and I’ll get you on the short list of hate crimes legislation so we can protect you.” It’s just pandering.
Jacob Sullum: Right. Well, I think there’s actually a distinction that should be made between federal intervention in cases where states are ignoring violations of people’s rights, particularly in the context of race, because the 14th Amendment does give the federal government authority in that area where states are failing to act, failing to prosecute crimes. Right? So in the old Jim Crow South, for example, if people committed crimes against blacks, they were either ignored or where there was just a sham of a trial and the person was acquitted. There you would have an argument for federal intervention because there is authority under the Constitution as amended to say if the states are failing to protect people’s rights, they’re failing to guarantee equality under the law, then we’re going to step in and make sure that justice is done. And certainly in the case where you have corrupt local officials who are themselves committing the crimes, there’s an argument for state intervention.
But in none of these cases where people think there’s reasons for federal intervention do you see that sort of thing nowadays. In particular, let’s focus on Matthew Shepard. This is the person after whom this federal legislation is named, who was murdered back in, I think it was ‘98, a gay college student in Wyoming. What happened to the people who killed him? They are serving life sentences. And Wyoming has no hate crime law. Somehow they managed to arrest these guys almost immediately, to prosecute them, to convict them, and to send them to prison for the rest of their lives. And yet this is the case that’s cited to show why we need federal action. It doesn’t make any sense to me.
Bob Zadek: So this is a clearest case of Congress at the federal level finding the total absence of a need and then filling it. That’s what has happened with the Matthew Shepard Act. My question for the audience: do we need hate crimes legislation and should any class be included, or are we all God’s creatures under the sun? 800-345-5639. Bob@BobZadek.com. We’ll be right back. I’m talking with Jacob Sullum.
Identity Politics in Criminal Law [34:34]
Bob Zadek: Welcome back, everybody. This is Bob Zadek, host of the Bob Zadek Show. We’re on every Sunday at KNEW Talk 910 from noon to 1:00. Radio Free World, where we promote freedom, libertarian principles, and we look at the world in general. I’m joined today with Jacob Sullum. Jacob and I are talking about hate crimes legislation at the federal and indeed at the state level. Should we have hate crimes legislation? Should we have identity politics? Is somebody’s life worth more than somebody else’s, or are we all worth the same?
Jacob, you know, in 1998, there was a wonderful book written entitled Criminal Law and Identity Politics by Jacobs and Potter. They looked into this whole area of identity politics and hate crimes legislation. And a review in the New York Times—and I’m going to quote from the review—the reviewer in the New York Times, in commenting on the book, observed that hate crimes are not meant to be enforced; rather, they are legislated and dispensed by politicians eager to award symbolic attention and protection to particular interest groups. So this has always been the crassest form of pandering.
Jacob Sullum: Yeah, I mean, I think there’s certainly something to that in terms of the motivation of the politicians. But we shouldn’t jump to the conclusion that therefore the laws aren’t actually used, because they are in fact used, and people do in fact get penalties that are more severe than they otherwise would have gotten. In some cases, twice as severe, based upon their beliefs. Take exactly the same crime with exactly the same amount of harm caused—if one person happens to have done it because for anti-Semitic reasons, he can get a penalty that, for example, is twice as long, twice as much time in prison.
Bob Zadek: Or for perceived anti-Semitic reasons.
Jacob Sullum: Right. If his victim was not in fact Jewish but he perceived him to be Jewish—there actually was a case I wrote about in California like that years ago where it still triggered the hate crime statute because he thought the people he was attacking were Jewish.
The Reconstruction Era Comparison [37:01]
Bob Zadek: Jacob, we have Al in San Francisco, who I think believes we do need a federal enhancement. Good morning, Al.
Caller (Al): Well, there’s an exception to that. During 1871, the Reconstruction era, we had routine and organized assaults against blacks—and I’m a black male. Governors and sheriffs violated the 14th Amendment, violated blacks. Blacks were lynched. But in the case of this Matthew Shepard Act, I’m opposed to that. There is not a routine and organized effort to assault homosexuals, in spite of what a few of the activists say. So that’s the error that your screener made. Again, the 1871 KKK Act was a federal hate crimes legislation, if you will, because of the purposes to eliminate the routine and organized assaults by the KKK and governors and sheriffs against blacks.
Bob Zadek: You’re exactly right, and Jacob actually pointed this out. There was admittedly, during Reconstruction, there was a profound need for the federal government to step in to protect the honoring of federal law against the abuses of state and local governments. There’s no question that that law had a need then. However, my question is: what is the data today? And Al, I guess you would agree with this. Where is the data to show the need for any hate crimes legislation today?
Caller (Al): I agree.
Jacob Sullum: Yeah, I mean, I think this is the distinction that I was referring to earlier, where certainly if you have evidence that state and local officials are just ignoring crimes committed against blacks in particular—because that’s what the 14th Amendment was all about—but if you had evidence that they were routinely, for example, ignoring crimes that are committed against homosexuals based upon the fact that they just didn’t consider it worth investigating, right? Then at least you would have some argument. “Well, it’s not being done. They’re not doing their jobs. They’re not protecting people’s rights.” But I don’t see any evidence of that. And I don’t see anybody citing that. And like as I said, I mean, in the Matthew Shepard case itself, there was no evidence that the local authorities and state authorities were lackadaisical. They almost immediately caught the people who committed that murder, and they ultimately convicted them and sent them to prison. So where is the argument that the federal government has to get involved if in fact the states are already handling these crimes?
Bob Zadek: And interesting, as Jacob pointed out, Jacob made an excellent point. Wyoming, I believe, is the only state without hate crimes legislation of any type.
Jacob Sullum: I think it’s one of a handful, at least. Almost all the states have them at this point. It is one of the few that still does not have a penalty enhancement statute.
Bob Zadek: And yet, by some providential intervention, somehow Wyoming managed to find these folks, find these perpetrators, these awful people, arrest them, and throw away the key without federal intervention.
Jacob Sullum: Right. And of course, you can’t really enhance the penalty much more than life in prison. You know, I mean, you could have—they actually were—there was a possibility of the death penalty in that case as well. If death penalty is the maximum sentence, how are you going to enhance the penalty? I mean, there’s no function for hate crime legislation in that case.
Caller (Al): Could I make one other point? Also against blacks, you had black codes in the South and you had the grandfather clause to violate 14th Amendment rights against blacks. That is simply not happening against homosexuals.
Bob Zadek: You’re exactly right, Al. Thanks so much for the call. We appreciate you listening.
Deterrence and Impulsive Crimes [40:52]
Bob Zadek: So the issue that I don’t want lost on the audience is: one would hope that legislation that is enacted be done because of a need, not because of vote gathering. And yet the Matthew Shepard Act has no—there were no findings whatever that this legislation, this federalization of a state-level crime, was needed. It was just the crassest, most offensive pandering to the gay community to enact a law. And it’s not going to stop. Every time Congress needs a block of voting, they can offer, “Hey, if you vote for us, if you support us, we’ll make your life worth more than Bob Zadek’s, and we’ll enhance the penalty.”
Jacob Sullum: This constant competition between groups over who’s going to be included. If you look at what happened in the Senate, it got—this legislation got attached to a funding bill for the military. And the Republicans introduced an amendment that said that service members would be added to the categories of people that you get extra punishment for attacking, right? So it’s like every group wants to be included. And it’s not, as you said, it’s not a healthy situation where people are competing to have more than equality under the law. Everybody should be protected under the law. They should have equal protection. And the amount of attention or the seriousness with which your case is taken should not hinge upon what group you happen to belong to.
Bob Zadek: Plus the fact, Jacob, as you pointed out, you commented on the Child Protection and Safety Act. And you commented, Jacob, that this allows civil commitment of federal prisoners who are deemed to be “sexually dangerous.” That sounds like Russia, examining into your thoughts and locking you up because of bad thoughts.
Jacob Sullum: Well, actually, that’s an example—that’s a law that already passed. And that’s another example where the federal government is taking something that was bad enough when it was done at the state level, because in this case, it’s essentially preventive detention for people who already have served their sentences. They’ve completed the sentences they received after they were convicted. And instead of allowing them to go free, they’re being kept indefinitely because of crimes they might commit in the future. So that’s already done in many states. The Supreme Court has already said that’s okay because this is not really imprisonment, this is “treatment.” And now the federal government has gone and passed a law where they do the same thing. And it compounds this problem where it was bad enough to begin with that you’re engaged in preventive detention based upon your predictions about what crimes people might commit in the future. But now the federal government is doing it and it has no particular authority to operate in the area of crimes related to sex. Again, this is just the sort of thing where they want to get involved in this because sex crimes are bad, just like hate crimes are bad, and they want to make a statement against it. So who’s going to vote against that? Who’s going to vote for freeing the sex offenders after they complete their sentences?
Bob Zadek: Exactly right. There’s no strong sex offender lobby right now. This is Bob Zadek. I’ve been spending the hour, a wonderful hour, talking with Jacob Sullum of Reason Magazine. We’re talking about hate crimes legislation. Are some lives worth more than others? 800-345-5639. Bob@BobZadek.com. We’ll be right back.
Deterrence and Impulsive Crimes [49:23]
Bob Zadek: Welcome back to the Bob Zadek Show. I’m your host, Bob Zadek. We’re here every Sunday at KNEW Talk 910 from noon to 1:00. Today’s topic is the “Federal Prison System Let’s Fill It Up Act,” otherwise known as the Matthew Shepard Act. It’s the federalization of state criminal law, the locking up of people for having naughty thoughts and saying bad things. Dorothy in Mill Valley, welcome to the Bob Zadek Show.
Caller (Dorothy): Yes, well, thank you, Bob. My question is—I’ve been listening and my question is that wouldn’t a hate crime legislation prevent future crime? Wouldn’t that be a deterrent? Because if I’m a prejudiced and a biased person and I know that doing this hate crime, instead of five years I might get ten, then doesn’t that serve to be a deterrent against future hate crimes?
Bob Zadek: In other words, if you hate somebody a little bit, it’s not worth the five years. But if you really despise the son of a gun, it’s worth the ten. I don’t think there’s any—
Caller (Dorothy): I’m just wondering about if it just doesn’t raise more awareness in the public eye with regards to—if you are going to commit violence against someone just because of who they are or a group they represent, that it is seen as a crime and a very serious crime. That that wouldn’t be a deterrent to future crimes.
Jacob Sullum: Well, I think conceivably it could be a deterrent, but it may give these people a little too much credit for being reflective and thinking ahead. I mean, if you think about the kinds of crimes that fall into this category, where often it’s an impulsive attack on somebody, it’s hard to believe people are going to be calculating, “Oh, I could get four years instead of two, I better not do this.” Although if they are going to be calculating and they do know about the penalty enhancement, one thing they could do would be not to say anything that might indicate their beliefs or the reason why they selected somebody. So they could just pretend to be randomly selecting somebody and beating them and not say anything that would indicate otherwise, and then they might just get the regular old penalty.
What troubles me about this is that it’s not—these crimes, because they are committed by people who have certain beliefs, doesn’t mean that they cause more harm. I think that’s the general assumption. I mean, that’s sort of the background justification for enhancing the penalty, is crimes motivated by bigotry should be punished more severely because they do more harm. Now, that might sometimes be the case, but it’s not always the case. For example, if you look at a crime that targets gay people, if somebody’s targeting gay people, obviously that’s going to raise alarm within the gay community. But if somebody’s just randomly attacking people, that’s going to raise alarm in the general community. So it’s not clear which of those actually does more harm. And judges are always free at sentencing to take that into account—how much harm was actually done by a crime. They can take that into account in determining where within the range prescribed by the statute that person should be sentenced. So I just don’t think it should automatically trigger a more severe sentence because you happen to have certain beliefs about certain groups of people.
Bob Zadek: And Dorothy, the Matthew Shepard case: here was a couple of really bad guys, three really bad guys, who committed a crime against Matthew Shepard because he was gay, as the evidence seemed to indicate. And they got sentenced to life. Now, that’s without hate crimes legislation. The penalty was life and could have been the death penalty. But it didn’t deter them, Dorothy. What else do you want to do? If life imprisonment or death penalty doesn’t deter somebody, isn’t that proof in and of itself that hate crimes legislation does not deter anybody? Now, of course it’s anecdotal.
Caller (Dorothy): We do know that different courts of law in different regions of the country approach things differently and there are different lawyers. And thank goodness that the Matthew Shepard case ended, I believe, in the absolutely right outcome—those two monsters are locked away. But I guess when you put legislation that is a hate crime at that level and you raise that awareness nationwide, then don’t you introduce at least perhaps a higher bar, that perhaps there will be some consistency with regards to the type of sentence that someone who is guilty of—
Bob Zadek: Well, that suggests that there’s evidence that in fact it works. These people who commit these crimes, let’s stipulate they don’t consult with criminal defense counsel before they commit the crime. Let’s stipulate they probably don’t read the New York Times and the Wall Street Journal and they probably don’t read the Federal Register every day. They get worked up, they get to be irrational, they are hateful. Hate itself is an irrational state of mind, and they then, if they in fact are hating somebody, they commit a crime. This is not, as Jacob said, this is a crime of impulse. And by definition, people don’t calculate the sentence. They hate, they are motivated, and they do the act. And the sentence is not even in the equation. So Dorothy, I don’t think that—and you know, there’s a whole other topic of what is the purpose of criminal law. Is it to deter or to punish? And there’s no evidence that an enhanced sentence will deter, at least not in this case. So don’t you have to have the evidence first and then you legislate? Not legislate first to pander and then hope that there’ll be some evidence to show that you were right. Dorothy, thanks so much for the call.
Caller (Dorothy): Thank you.
Special Treatment and Social Backlash [54:39]
Jacob Sullum: You know, one other thing that probably should be considered is that by catering to particular groups and including them in legislation like this, the government may actually stir up more hatred by creating the perception that, “Yes, these people, we’re treating them—we’re putting them in a special class above you, and they get special treatment under the law.” In fact, they are getting special treatment under the law. I mean, it’s no exaggeration to say that. So it’s not hard to see how somebody who already hates gays or hates disabled people might hate them even more as a result of seeing them get this special treatment under the law. So that’s obviously also completely hypothetical. We’re not sure that there’s evidence of that either, but that’s one possible outcome of this kind of legislation.
Bob Zadek: And what’s interesting is if we talk about empirical data, we would hope that legislators are rational, but of course they are not. But there was a finding, not disputed, that two-thirds of the hate crimes committed—granted this spotty data—two-thirds were done by people whose primary motive was thrill-seeking. And that was, I think, the case in the Matthew Shepard case. So if you have a thrill-seeker, the thrill would probably be enhanced as the stakes go up. So there’s just no data to support the fact that there will be a deterrence. This is simply a case of power politics. The gay/transgender lobby was able to get federal law amended to include them in the special class.
Jacob Sullum: I think actually we could—if you step back a little bit, you can understand what this lobbying is about, because there already are certain groups that have special protection under the law. And so they’re saying, “Why shouldn’t we also?” And that’s understandable. I mean, better not to give anybody any special treatment, but once people start to get special treatment, naturally the groups that are left out are going to see it as a sign that they are less respected or that crimes against them are taken less seriously than crimes against people who belong to these other groups. So it sort of feeds itself. Once you start to give certain groups special status under the law, other groups are going to want it too. It’s perfectly natural to want it too because otherwise you feel you’re not being taken seriously.
Bob Zadek: And pretty soon every group will be included and we’ll have a federal law that says it’s an enhanced penalty for violent crime against anybody except lawyers. For lawyers, you get a reduced sentence. And that’s my real fear, that I must confess to have a selfish motivation for having this topic on my show today. I don’t know, there are a lot of lawyers in Congress. I think that they might become a protected group. That’s true. But that’s my fear.
This is Bob Zadek. I’ve been spending the hour, a wonderful hour, talking with Jacob Sullum of Reason Magazine. We’ve been talking about hate crimes legislation. Should some lives be valued at the federal level more than others? Should the federal government be involved in criminal law at all? It’s been a wonderful hour. This is Bob Zadek, just giving you a heads up. I’ll be on vacation for the next two weeks. We’re going to have reruns of some of my very favorite shows. I hope you’ll join in. Please don’t call in. I’ll be in Europe. I won’t be able to take your calls. I’m looking forward to joining you in three weeks from today. This is Bob Zadek, Talk 910, KNEW. The Bob Zadek Show, noon on Sundays from 12:00 to 1:00. Libertarian Talk Radio. Thanks so much for listening, and I’ll see you in three weeks.