Let’s not make this easy. Early in the morning of March 3, 1992, after a long discussion of their racial resentments, John Ayers and Sean Riley set out from their suburban neighborhood of Silver Spring, Maryland, looking for black people to attack. They came upon two black women walking along Georgia Avenue; realizing they were being followed, the women began to run, and split up. Riley chased Myrtle Guillory, and Ayers chased Johnnie Mae McCrae. Guillory testified at trial that Riley yelled repeatedly, “I’m going to kill you, you black bitch.” Guillory escaped when she ran to the home of a friend, who protected her. McCrae found no refuge. Ayers dragged her to a nearby woods, where he savagely beat her and told her that he was going to kill her.
Ayers was sentenced to ten years for assault with intent to maim, thirty years for kidnapping, ten years for committing a racially motivated crime against McCrae, and ten years for conspiracy to commit a racially motivated crime against Guillory; all sentences to be served consecutively, a total of sixty years.
Here’s the question before us. Does the hatred that motivated the crime—the thoughts that we can deduce were in Ayers’s head, the racial epithets that Riley spoke—make Ayers’s repulsive actions worse than they would be in the absence of bigotry? We can, of course, rightly condemn them as morally worse. But legally worse, subject to enhanced punishment? Ayers’s death threat can certainly be counted as part of his physical crime. Threats are against the law. Racial animus and racial epithets, however, are not in themselves illegal, and it was Riley, not Ayers, who expressed them. Does the state have a legitimate interest in what Ayers was thinking when he brutalized his victim?
The question touches on two very different ideas about the purpose of the criminal law. Is it to keep antisocial conduct in check, thus making it possible for human beings to live together and go about their business in reasonable comity, if not amity? Or is it to make people better—to make society better?
For libertarians across the political spectrum, the idea that courts can weigh the thought, belief, or emotional affect behind an act is chilling. Hate itself counts for nothing in American law. Violence counts for a lot. Hate paired with violence, under hate crimes laws, counts for even more: zero plus one is more than one. Like the neutrino, hate has no mass, but it changes things. In a free society it should be axiomatic that only action, never thought, can be subject to punishment.
On October 28, 2009, President Barack Obama signed the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act. This law adds sexual orientation and gender identity as protected categories in federally defined hate crimes, allows the Department of Justice to aid in investigations and prosecutions of hate crimes if local authorities request assistance or if they are unable or unwilling to properly investigate and prosecute; and removes certain circumstances as necessary for establishing a hate crime in federal law. The bill passed 68 to 29 in the Senate, 281 to 146 in the House. It was endorsed by a long list of human rights, civil rights, and law-enforcement agencies, and officially opposed only by the conservative religious group Focus on the Family.
The law was named for the victims of two high-profile crimes. On October 6, 1998, Matthew Shepard, a twenty-one-year-old gay man, met Aaron McKinney and Russell Henderson in the Fireside Lounge in Laramie, Wyoming. McKinney and Henderson apparently pretended to be gay in order to gain Shepard’s trust. They offered him a ride, and took him to an isolated area, where they robbed him, beat him, tied him to a fence in freezing weather, and left him to die. Shepard was discovered the next morning by a bicyclist, who thought at first that he was a scarecrow. He died five days later in the hospital at Fort Collins, Colorado.
Just four months earlier, James Byrd Jr., a black man, was walking home along a road in Jasper, Texas. Three white men in a pickup truck—John William King, Lawrence Brewer, and Shawn Allen Berry—offered him a ride. The three men beat Byrd, chained him to the truck, and dragged him to his death.
These two horrifying cases did much to bring hate crimes to public attention, and to communicate a sense of urgency about the need to use the law to fight hate.
One would think, then, that the prosecutions of the Shepard and Byrd murderers under existing laws were inadequate. But the prosecutions were exemplary. Although Wyoming had no hate crimes statute, Henderson only avoided being charged with a capital crime because he plea-bargained for two consecutive natural-life terms, agreeing to testify against McKinney, who led the attack. McKinney’s case went to trial. Convicted of felony murder, kidnapping, and aggravated robbery, he also plea-bargained in the sentencing phase, agreeing never to appeal, never to speak to the press, and never to profit from his crime in exchange for not being put to death. He, too, was sentenced to two consecutive natural-life terms. The Shepard family had to approve both plea-bargains. Henderson and McKinney’s girlfriends were convicted of interfering with the investigation, because they knew of the crime after the fact but did not report it.
Texas also had no hate crimes statute, and the NAACP and other activist groups gave then-governor George W. Bush a very hard time because he refused to endorse one in the wake of the Byrd murder. But Bush was vindicated by the criminal justice system. King and Brewer, who both had longstanding ties to white supremacist groups, received the death penalty. Berry will be in prison for the rest of his natural life. Apparently the jury concluded that Berry’s lack of white supremacist associations made him less of a future danger to society, and future danger is a requirement under Texas’s capital punishment law (in other words, it was not their thoughts that counted against King and Brewer; it was a holistic assessment of the actual danger they represented). One does not have to support the death penalty to believe that the Shepard and Byrd murderers deserved the maximum available punishment in law.
Justice was served for both Matthew Shepard and James Byrd, even though the law was not mandated to take account of the motivating beliefs of the perpetrators. As Laramie prosecutor Cal Rerucha told potential jurors in the Matthew Shepard case, “Whether black or white, rich or poor, Catholic or Protestant, whether we have power or no power, whether we are straight or whether we are gay, we are equal because the Wyoming constitution tells us we are equal.” The jury, and the court, found accordingly.
Do the Matthew Shepard and James Byrd prosecutions uphold or detract from the argument for hate crimes laws?
In the United States, hate crimes laws—laws that mandate extra penalties when specific types of animosity are a part of criminal motivation—originate in a challenge to the authority of the state itself, and date to Reconstruction, when Night Riders and unrepentant rebels terrorized freed blacks. The first federal hate crimes laws were promulgated in 1870. Sections 241 and 242, 18 United States Code, are directed against conspiracies to deprive blacks of their rights to freedom and equal protection of the law under the Thirteenth and Fourteenth Amendments. Section 242 specifically constrains law enforcement officials, prohibiting them from acting “under color of law” to target anyone on the basis of “being an alien, or by reason of his color, or race.” But they differ from modern hate crimes legislation in their primary focus on the deprivation of constitutional rights, rather than on the identity of the victim. Attacks on blacks were seen as a conspiracy against the Constitution. As indeed they were.
Hate crimes laws in the civil rights era maintained this focus. The Civil Rights Act of 1968 (18 USC 245), was passed in a time of surging violence against blacks seeking to exercise their constitutional rights, and against their white supporters. It enhanced penalties for crimes targeting individuals on the basis of race, color, religion, or national origin, but only if the crimes occurred in the context of the victims’ engagement in six specified protected categories of activity. Broadly, these categories embraced any pursuit provided, required, or supported by government; any activity involving working; and traveling. The 2009 Hate Crimes Prevention Act removes these protected categories, previously required to define hate crime in federal law. This is something qualitatively new in federal jurisdiction.
This change is part of a shift in the concept of hate crimes that began when state laws began to address the issue. California was first, in 1978, with a law that recognized protected status in isolation from any protected activity. A hate crime was a crime on the basis of the victim’s identity, rather than on the victim’s equality under the law. California’s protected categories, evoking those of the early federal hate crimes statutes, were race, religion, color, and national origin. Subsequent laws in other states expanded these categories to include things such as age, marital status, and membership in certain types of organizations. While early state laws limited the types of crime for which prosecutors could request enhanced charges, there was a concurrent push to expand the categories of eligible crimes. By 1987, California legislation allowed prosecutors to consider hate crimes enhancement in charging any crime.
Enhanced sentences for hate crimes vary by jurisdiction, but can be quite significant under both state and federal law. The 1994 federal Violent Crime Control and Law Enforcement Act mandated that U.S. sentencing guidelines raise the offense level for the underlying crime by three levels when the victim is targeted on the basis of a protected identity category. Vermont’s hate crimes law doubles the maximum prison term for violent crime if bias is involved. Wisconsin’s can add five years to a sentence.
Hate crime laws are one approach to a real problem, but there are many ways that the law can respond to hate that manifests as violence without attempting to regulate opinion. This issue was the focus of a 1992 Supreme Court decision, R.A.V. v. City of St. Paul (initials were used to protect the identity of the defendant, because Robert Viktora was a minor at the time). In 1990, Viktora burned a small cross in front of the house of a black neighbor in his mostly white neighborhood of St. Paul. He thereby violated a 1982 city ordinance that banned expressions of bias, specifically mentioning cross burning and display of the swastika. Viktora’s conviction was appealed on First Amendment grounds. The U.S. Supreme Court ruled for Viktora, finding that the St. Paul statute was overly broad. The law, said the majority opinion, cannot single out speech (including symbolic speech) that lawmakers or the public find objectionable.
Should Viktora’s black neighbor therefore have had to put up with an obvious threat to and disturbance of his peace, to which he was entitled as a citizen and as a human being? No; the lawmakers of the City of St. Paul could simply have banned expressions conceived to threaten or intimidate, which are not protected speech, without regard for the content of such expressions.
Note, however, that if we take the First Amendment seriously, there ought to be some sort of standard for a finding of intimidation. Simple display of a swastika probably should not meet that standard. The display would have to be in the context of a reasonably perceived physical threat, beyond the mere desire to cause offense. The crime properly is found in Nazi acts, not Nazi beliefs, nor even the expression of such beliefs.
Existing content-neutral intimidation laws could also provide a basis for punishment of what are now considered hate crimes against property—painting swastikas on a synagogue, for example—without resorting to the concept of a hate crime. One result of this might actually be a reduction in such crimes. A hate crime charge is, after all, a mark of status in the social circles in which the perpetrators of such crimes seek to rise and, in their own minds, a badge of political martyrdom. A charge of “petty vandalism with intent to intimidate” is not so glamorous.
The course suggested by R.A.V. was overtaken by Wisconsin v. Mitchell in 1993. Todd Mitchell, a black teenager who had just seen the film Mississippi Burning, urged his companions to assault a white teenager with the words “There goes a white boy; go get him.” Gregory Reddick was beaten into a coma that lasted four days.
Mitchell’s conviction on enhanced hate-crimes charges, under a statute that criminalized bigoted speech leading to violence, was overturned by the Wisconsin Supreme Court as violating the First Amendment. On appeal, the U.S. Supreme Court might have found, consistent with R.A.V., that the law can punish speech when there is a direct link between speech and action but must refrain from prohibiting particular subjects of speech (as with incitement or conspiracy statutes, which weigh the results of speech but are neutral as to its content.) The court did not do this. Instead, it upheld Wisconsin’s claim to a compelling interest in the punishment specifically of bigoted speech when it is linked to action. The effect on Mitchell’s case was the same as that of an incitement conviction might have been. But the implications for the First Amendment were quite different. We are living with them now.
Civil rights groups that support hate crimes laws generally defend them with the argument given by House Judiciary Committee Chairman John Conyers: “These crimes constitute an assault not against the victim, but against our communities and against the very foundation of Democracy.” Illustrating this point, Cristina Finch, of the Campaign for Human Rights, told me that vicious attacks on transsexuals have implications beyond the immediate crime. “They’re shot. They’re stabbed. They’re mutilated. It’s a disproportionate amount of violence for the injury that’s inflicted… Why are hate crimes different? [The perpetrators] are trying to eradicate this person’s identity, to send a message: ‘Your kind is not wanted here. I want to wipe you off the face of the earth.’”
But absent specific acts of conspiracy, or conscious and active planning to target a community, Conyers’s larger charge is an innovative interpretation of criminal responsibility. It is a leap from a specific attack to a generalized accusation of terrorism with no necessary evidentiary link and with no specific individuals as objects of incitement or participants in conspiracy, nor specific individuals victimized by incitement or conspiracy. It is charging a crime (that is, the theoretical future violent acts inspired by the real, immediate attack) before it has occurred.
We should know better by now. It is this kind of expansion of the concept of conspiracy that has led to some of our most ill-conceived adventures in the application of the law, from the Alien and Sedition Acts to the Palmer Raids, from the McCarran-Walter Act to warrantless wiretaps. These were responses to the reality that there are many people who despise our constitutional order—and among the people whose lives were touched by these undertakings, there were undoubtedly some who could have and would have done it harm. Yet as worthwhile as the goal may be (preventing anti-constitutional subversion, catching terrorists, expressing society’s disgust for bias) the damage done by such measures is always greater than any benefit. See “Slope, slippery.”
Incitement is indeed a criminal act that can be charged separately from a physical crime. But like any other charge, it must be proven by more than repugnance for the accused. The wish that a hated group would disappear is not illegal, nor—short of violence or incitement—is expressing it. As to the nature of the physical crime, the extraordinary bias-induced mayhem that Finch described, the law certainly has an interest in considering the intensity of violence. And it does consider it. Particularly vicious murders and assaults (those that involve, for example, torture, multiple victims, child victims, or sex crimes) are more heavily punished than other murders and assaults. The viciousness of an attack on a transsexual may indeed be the perpetrator’s response to the victim’s gender identity, a response expressing the desire that all transsexuals be dead. But the law does not have to take account of the attacker’s wishes or beliefs in sentencing—only of the level of violence employed.
Supporters of hate crimes laws often point out that the law already makes distinctions based on intent and state of mind. Intent makes the difference between negligence and murder, and a husband who kills his wife in a fit of rage is charged differently than a husband who carefully plans to murder his wife for her life insurance. These kinds of considerations are distinct, however, from the motivating idea or emotion. While it is hard to make generalizations about the law, when legal culpability is tied to a perpetrator’s intention and awareness of wrongdoing, the modern interpretation of mens rea recognizes four levels of such awareness: negligent (conduct that does not meet a normative standard); reckless (acting in conscious disregard that conduct is likely to be prohibited); knowing (when a perpetrator knows that the conduct is illegal); and purposeful (when a perpetrator’s actions demonstrate the desire or intention to break the law.) It is these categories—and not the specific content of thought—that shade degrees of legal guilt.
How does one determine the beliefs of an attacker, anyway? In the many cases in which motivation is ambiguous and would require some effort to establish in order to meet the statutory definition of a hate crime, prosecutors might look at a defendant’s associates, institutional affiliations, magazine subscriptions, or library records. As many legal scholars have pointed out, such investigations would raise serious First Amendment issues. Hate crimes are also highly political, offering many temptations to ambitious prosecutors, who may feel intense popular pressure to charge (or not charge) a particular crime as a hate crime.
Real life can be complicated. Most statutes define a hate crime as occurring when a victim is targeted for belonging to a protected identity category. It doesn’t matter if the motivation is actually hate. But even those who support the concept of hate crimes legislation might have problems with this definition. Is someone who targets old women for muggings in the belief that they will be easy to overpower really committing an age- or gender-based hate crime, or just a particularly repugnant ordinary crime? The motivational affect matters in hate crimes law only when it can contribute to establishing hate (and enhancing punishment). When it does the opposite, it is irrelevant.
In a similar way, it is ironic that many of the advocacy groups that consult on hate crimes laws have to argue that gender-as-a-protected-category should not mean that rape can be prosecuted as a hate crime. On the face of it, why not? Rapists certainly do almost universally target a particular gender. But the absurdity is too evident: Rape is inherently a gendered crime. The underlying criminal act and the basis for calling it a hate crime are the same. Yet if the underlying crime—the act itself—must be accepted as the full basis for prosecution of rape, why should it not be sufficient in the case of other crimes that target identity? I should note that the prosecution of rape as a war crime, when it is organized and encouraged as a weapon of ethnic intimidation (as it has been in Bosnia, Rwanda, Sudan, and many other places), is certainly a legitimate and necessary use of the law. But that is a different phenomenon than what we usually mean when we talk about the crime of rape.
There are, it is true, historical burdens. Paul LeGendre, of Human Rights First, told me that the defining feature of a hate crime is that it targets a characteristic that has historically defined a group subject to persecution and attack. Skin color, religion, or ethnicity are therefore protected categories under hate crimes laws; social or political affiliation are not.
But the criminal law applies to individuals, not to the past behavior of dominant groups. Suppose a victim is selected for a brutal assault because he or she is a schoolteacher, a union member, a communist, a Republican. Is the crime less serious than it would be if the attacker targeted a Mormon or a Hmong? Charging these crimes differently arguably violates the Fourteenth Amendment, which is, after all, one of the most powerful responses to historical injustice that American society has ever devised.
It may be (in some jurisdictions it must certainly be) that police and prosecutors are not properly investigating or bringing serious-enough charges against those who target victims based on hatred of a minority race, ethnicity, religion, gender-identity, or sexual orientation. This failure may well reflect a conscious or unconscious bias on the part of law enforcement. This is a problem that can be solved without recourse to criminalizing a wish: Insist that crimes be charged consistently and without bias. Spend the money currently allocated to enhanced hate crimes prosecutions on rigorous statistical analyses of investigations, charges, and sentences in problematic jurisdictions. Fire or indict police, prosecutors, and judges who do not do their duty.
Make no mistake: hate crimes laws do set us up for hate speech laws. At present all of the model guides for hate crimes laws require an “underlying” crime—there is no suggestion that speech or thought alone should create legal liability. But if speech or thought produces extra liability when paired with an underlying violent crime, it is but a small step to unpairing them, preserving the criminal liability of hate alone. Couldn’t happen here? Canada, where I grew up, offers a very clear demonstration of how it does happen. The issue of free speech has been finessed by the Canadian Supreme Court ruling in R. v. Keegstra, which held that “harmful expressive activity” damages individuals and communities sufficiently to be itself considered a criminal action, thereby explicitly erasing the distinction between hate speech and hate crime.“ Parliament’s objective of preventing the harm caused by hate propaganda is of sufficient importance to warrant overriding a constitutional freedom.” Canadian Supreme Court, R. v. Keegstra,  3 S.C.R. 697. The Canadian Charter of Rights and Freedoms declares that speech is protected “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” In practice and as shaped by case law and the Supreme Court, American jurisprudence also recognizes such limits. But perhaps having them embedded in the constitution tempts Canadian judges to emphasize order over freedom. The American Bill of Rights, by contrast, is bracingly unequivocal. In 1990 the Canadian constitution was still being substantially shaped by decisions such as Keegstra—the modern constitution dates only to 1982, and most precedents under the former constitution, the British North America Act, were abandoned at that time.
This spirit has been reflected in many Canadian laws and institutions, most notably in the infamous federal and provincial Human Rights Tribunals, informal bodies outside of the official courts systems, which nevertheless enforce laws against exposing any group or individual to “hatred and contempt.” These tribunals can impose heavy fines, and even require defendants to publicly retract statements found to be offensive. Plaintiffs’ costs are borne by the public; defendants’ costs are not, a model for censorship-by-bankruptcy. And truth is no defense. It would be theoretically possible to convict a journalist for writing about the Armenian genocide if a Turkish complainant took offense. “A person must not publish, issue or display… any statement… that… is likely [emphasis added] to expose a person or a group or class of persons to hatred or contempt…” British Columbia Human Rights Code, Section 7(1). This is a broader version of Section 13 of the Canadian Human Rights Act (which, oddly, applies only to statements made over the telephone and the Internet.)
The institutions of a free country do not operate like this. Yet Canada is heir to the same traditions of British common law and intellectual liberty that gave rise to our First Amendment. The price that Canadians have been willing to pay for an enforced and artificial sense of social harmony should be a warning to us.
But don’t we want to outlaw hate? Wouldn’t we be a better society if we did? Well, we could outlaw war, too, at the stroke of a pen.
There is much that we can do, through individual, collective, and governmental action, to heal the wounds of an unjust and hateful past. But the legitimacy of the law rests, among other things, on its application to the specific case. Punishing a bigot for hate, in historically determined categories, creates a scapegoat for our society’s collective historical crimes. Perhaps that is why it makes us feel better.
If we are not concerned with policing a fraught relationship with the past, and if we view thought as outside the purview of law or any other authority, we are yet able to judge, punish, and prevent acts that cause harm. For this we do not need to speculate as to the motivating beliefs of criminals. We need only to recognize and appropriately punish their actual crimes. A self-confident, mature democracy that trusts its own capacity for public debate can afford to leave the policing of mind and tongue to the North Koreans. And, sadly, to the Canadians.
Jesse Larner is the author of Mount Rushmore: An Icon Reconsidered (Nation Books, 2002) and Forgive Us Our Spins: Michael Moore and the Future of the Left (Wiley and Sons, 2006). He can be reached at firstname.lastname@example.org.