Punishing 'Hate Crimes'
By Michael Kelly
Wednesday, October 14, 1998; Page A15
As one who wholeheartedly supports capital punishment, I have what
seems to me a cleareyed vision of what justice demands in the murder of
Matthew Shepard, the 21-year-old Wyoming college student who was,
one night last week, robbed, pistol-whipped, tied to a fence and left to die.
Bring in the monsters who did this, try 'em, verdict 'em and string 'em up,
preferably before an applauding crowd of thousands.
And justice does appear on the way to being served. Two young men --
Russell A. Henderson and Aaron J. McKinney -- have been arrested and
charged with first-degree murder; their girlfriends have been charged as
accessories. There does not seem to be a lot of doubt that Henderson and
McKinney did commit the acts that caused Shepard's death, nor does it
seem at all likely that they will escape punishment.
But this, it is said, is not enough. Because Shepard was gay, and because
his killers appear to have been motivated in part by an anti-gay animus
(though police say robbery was the primary motive), justice is said to
demand more. Specifically, it demands more bad law.
"Hate-crime" laws mandate increased penalties for defendants found guilty
of committing crimes inspired by certain categories of prejudice. In 21
states and the District of Columbia, the categories are: race, religion, color,
national origin and sexual orientation. Nineteen additional states have
hate-crime laws that do not cover sexual orientation. Ten states, including
Wyoming, have not passed categorical hate-crime laws. There is also a
federal law, which covers race, religion, color and national origin but not
sex or sexual orientation.
For Shepard's sake, the cry arises, Wyoming must pass a hate-crime law,
and Congress must pass a new, more sweeping, Federal Hate Crimes
Protection Act, which would add to the roster of crimes made federal
offenses those inspired by bigotry based on sex, disability and sexual
orientation. "There is something we can do about this. Congress needs to
pass our tough hate crimes legislation," President Clinton declared
Monday, the day Shepard died of his injuries.
At least he is consistent. No president has ever been more willing to assault
liberty in the pursuit of political happiness than has this one. Clinton is
always willing to embrace any new erosion of rights, as long as there is a
group of voters or political contributors out there who wish it so. This is
one area in which Clinton has been thoroughly bipartisan. In his five years
in office, he has joined Republicans in Congress on quite a spree of
liberty-bashing. He has signed laws that have stripped habeas corpus to its
bones, vastly increased the number of crimes deemed federal offenses,
established mindless mandatory sentencing and targeted certain classes of
defendants -- terrorists, drug pushers -- for the special evisceration of
rights.
And playing to the other side of the political spectrum, Clinton has
consistently and strongly supported the expansion of harassment and
discrimination law, an expansion that has in recent years increasingly
worked to criminalize behavior that government once regarded as private.
Well, at least he supported such law until the case of Jones v. Clinton
arose.
Of all the violence that has been done in this great expansion of state
authority over, and criminalization of, the private behavior and thoughts of
citizens, none is more serious than that perpetuated by the hate-crime laws.
Here, we are truly in the realm of thought crimes. Hate-crime laws require
the state to treat one physical assault differently from the way it would treat
another -- solely because the state has decided that one motive for
assaulting a person is more heinous than another.
What Henderson and McKinney allegedly did was a terrible, evil thing. But
would it have been less terrible if Shepard had not been gay? If Henderson
and McKinney beat Shepard to death because they hated him personally,
not as a member of a group, should the law treat them more lightly? Yes,
say hate-crime laws.
In 1996 the FBI recorded 1,281 "crimes against persons" for reasons of
sexual-orientation bias. Two of these were murders and 222 were
aggravated assaults. Four hundred and seventy-two of what the
government termed hate crimes were not assaults but "acts of intimidation."
These latter would not be crimes except for the determination that
expressions of certain prejudices and hatreds were in themselves criminal
offenses.
There is a long history of police and prosecutors slighting assaults against
gays and lesbians. Justice demands that the cops and the courts treat the
perpetrators of assaults against citizens who happen to be homosexual as
harshly as they do the perpetrators of assaults against anyone else. But not
more so.
Michael Kelly is the editor of National Journal.
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