A letter to the L.A. Times

Just sent the following letter to the editor of the Los Angeles Times:

To the editors:

Michael McGough's op-ed on hate crimes ("There's little to like about hate-crimes laws," Dec. 3) is so laden with misconceptions and distortions that it really begs a response.

First, McGough seems to believe that prosecutorial misconduct is the fault of the laws that are abused. After all, it is possible to find all kinds of cases involving the kind of selective prosecution that he insists occur with hate-crimes laws (McGough notably fails to provide any statistical support for this claim). These involve all kinds of criminal laws, ranging from murder and assault to simple theft; surely McGough is not suggesting that we revoke those laws as well, simply because prosecutors abuse them? The problem he's decrying here is a systemic one, and not the product of the laws themselves -- except to the extent that people in law enforcement misunderstand them.

It seems evident that McGough misunderstands them as well; the only muddling between "bad acts and bad thoughts" that occurs in the case of bias-crime laws is that indulged by McGough. The reality is that the perpetrator's mental state -- known in the law as mens rea -- has always been a consideration of criminal law. It is the difference, for instance, between first-degree murder and manslaughter. Both intent and motive are, and always have been, considerations of the law, particularly when it comes to sentencing. And that's what bias-crime laws are: sentence-enhancement laws. They do not create new crimes; rather, they stiffen the terms for acts that are already crimes, committed in this case with a bias motive.

McGough concludes: "If their overarching purpose is to affirm the equality of all people, then the law should punish all assaults the same, regardless of the race, gender, religion, sexual orientation, disability or veteran status of the victim. The 'protected class' should be human beings." Well, as it happens, this latter is precisely how the laws work: they are intended to protect everyone equally from these kinds of crimes. Everyone, after all, has religious beliefs of one kind or another; we all have a race, a gender, an ethnicity, a sexual orientation. A quick look at the FBI's annual bias-crime statistics bears this out; anti-white bias crimes are the second-largest category of racial crimes, and anti-Christian crimes constitute the second-largest in the religion category. If the laws were written as McGough suggests, they couldn't possibly pass the Constitution's equal-protection muster; yet these laws have.

Bias-crime laws intend to protect us all from being subjected to criminal acts simply because of who we are as human beings, and they intend to protect our communities from threats and intimidation of the kind these crimes are about. Treating a gay-bashing as just another assault, or a swastika on a synagogue as just a vandalism, obscures this larger reality about hate crimes: they are "message" crimes, intended to threaten and intimidate whole blocs of the community, whose harm extends well beyond just the immediate victims and includes the larger community within which they occur. They are, after all, profoundly anti-democratic, their purpose being to exclude and oppress.

Mushy-headed libertarians and liberals (not to mention conservatives) who see bias-crime laws as creating "thought crimes" -- a concern for which, in over two decades of having these laws on the books, there is scant evidence -- seem to be wringing their hands over a rather abstract notion of freedom, while losing sight of the hard reality that bias-crime laws are about protecting the freedoms of millions of Americans. Maybe that's because these critics see the only threat to our freedoms as emanating from government. But over the history of our country, there have been notable examples in which people's freedoms were taken away by the acts of their fellow citizens -- the "lynching era" of 1880-1930 being the most prominent. Today's bias-crime laws are the direct descendants of the anti-lynching laws that were never passed at the height of this era, based largely on arguments similar to McGough's -- a failure for which the Senate recently apologized.

The legacy of lynching remains with us today in the form of hate crimes -- whose purpose, once again, is to oppress and eliminate targeted minorities. Hate crimes have the fully intended effect of driving away and deterring the presence of any kind of hated minority -- racial, religious, or sexual. They are essentially acts of terrorism directed at entire communities of people, and they are message crimes: "Keep out." And they damage both the fabric of our communities and the democratic underpinnings of a free society. Most of all, they create what Yale's Donald Green calls "a massive dead-weight loss of freedom" for all Americans, particularly minorities.

Bias-crime laws aren't merely about "affirming the equality of all people": they're about preserving very real, basic freedoms -- freedom of association, freedom of travel, the freedom to live where we choose, and most of all the freedom from fear -- for every American. The only "freedom" upon which they impinge is that of violent yahoos to threaten and intimidate and take away the freedom of others. Is that the kind of freedom Michael McGough wishes to protect?

David Neiwert
Seattle