Repealing Hate Crimes Legislation page 2
Everyone else includes most victims of gang violence. Most gang violence is judged to be a result of societal rebellion, generalized and institutionalized territoriality, mob conformance behavior, revenge for past wrongs wrought by opposing gang ancestors, drug dealing collateral damage, and any number of reasons that can be happily provided by sociologists and psychology professionals. Though gang-related killings are abhorrent and often based in senseless hatred of opposing “colors,” they generally are not considered hate crimes because members of gangs are overwhelmingly of the same racial composition. National statistics show that more than 80 percent of the victims of violent crimes committed by blacks are other blacks.
An angry homosexual carrier of the AIDS virus is presumed not to target homosexuals because of the victim’s sexual orientation. People of the same sexual orientation congregate and infect one another with deadly diseases for reasons that don’t meet the conditions of hate crimes legislation. Also excluded from enhanced sentencing are defendants who attack obese people of no particular gender or race, single teen mothers for being immoral parasites of the welfare system, boy band members whose singing really sucks, lawyers, abortion doctors, U.S. Post Office managers, bald guys, people with phony southern accents, the elderly who reject the label of “disability,” kids of any gender victimized by pedophiles, the mentally deficient, the homeless, prostitutes of either gender if attacked indiscriminately, environmentalists, politicians, and numerous categories of people because of their employment.
Theoretically, if the criminal’s race, national origin, ethnicity, gender, disability, or sexual orientation is the same as the victim’s, then the crime is less likely to fall within the definition of hate crimes statutes. For instance, a healthy white male who attacks another healthy white male in a bar presumably doesn’t do so because the victim is white or male or non-disabled. However, what if the white attacker is racist, and the white victim has co-opted slang, speech patterns, clothing, and swagger associated with black gangster rap culture? Might hate crime provisions be invoked in this case? Could it be possible that one could hate one’s own race, ethnicity, gender, disability, and sexual orientation, and express that hatred in violence toward others who possess those personal and demographic characteristics?
Unsubstantiated and premature blame for a hate crime indicates that people are thinking in ways that are constrained by a need to see racial controversy where it doesn’t likely exist. Because of the heightened, if unfounded, awareness of race as a key factor in social relationships in the U.S., prosecutors believe that they can safely categorize white-on-black and black-on-white crime as hate crimes, if any evidence points to the victimizer as generally racist. As a result, most black victims are afforded application of hate crimes sentencing only when the victimizer is not black.
Disparate sentencing places a variable value on the lives of victims, placing less on minorities victimized by minorities of the same class than on those victimized by people who possess differing personal and demographic characteristics. Hate crimes legislation tends to promulgate such racist and categorical assumptions. The inexhaustible matrix of varying personal characteristics that victims and victimizers possess make it impractical for any law to fairly and justly accommodate all shades of targeted hatred, or racial and religious intolerance. Supporters of hate crimes legislation, like Stephen Clark, a staff attorney with the Utah chapter of the ACLU, concede that exclusion of many victim classes from enhanced sentencing protections is unavoidable, and that special rights for members of some groups will be created (Denton). Freidrich A. Hayek, a socio-political economist, points out that beneficial effects of laws are realized “only if they are applied to all cases to which they refer, irrespective of whether it is known, or even true, that they will have a beneficial effect in the particular case”(Hayek).
The existence of exclusions and special rights in any law discriminates against those for whom the law cannot be equally applied, debatably in violation of the equal protection clause of the United States Constitution. According to a report by the Anti-Defamation League, the “statutes unconstitutionally benefit minorities, because minorities are more likely to be victims of bias crimes, or … the statutes unconstitutionally burden majority members because majority members are more likely to be prosecuted” without direct evidence that race factored in the criminal intent.
To minimize the exclusion of victim classes, many local and state statutes contain versions of hate crime legislation that attempt to broaden applicability of sentencing enhancements. In Utah, for instance, anyone who “commits any primary offense with the intent to intimidate or terrorize another person or with reason to believe that his action would intimidate or terrorize that person” is charged with a third degree felony. Federal statutes like the Hate Crimes Prevention Act are intended to extend the federal government’s ability to investigate or prosecute incidents of hate violence. However, under Section 245 of Title 18 U.S.C., only racial and religious bias-motivated interference, by force or threat of force, in another’s pursuit of a Federal right or benefit, such as voting, may invoke penalty enhancement, and only if the government can prove both that the crime occurred because the victim belonged to a protected group and that the victim was attempting to engage in a protected federal activity. Instead of drafting complicated qualifications and limitations, the public might be more comforted if the law applied, without discrimination, to anyone who interferes, for any reason, with another’s legal pursuit of a Federal right or benefit.
Crime victims who are ineligible to receive equal presumed protections under hate crimes legislation, that is, black victims of black criminals, for instance, are justified in feeling indignant about the unfairness of legally sanctioned discrimination. Taking offense at hate crimes legislation, however, is an equal opportunity option. Members of a class that the government feels need extra protection are insulted by the insinuation that they can’t protect themselves, or that they’re assumed to be entitled to something extra because of their race, gender, or sexual orientation. Otherwise deserving of equal treatment, members of the “protected” groups may gradually become perceived by society as actually needing special consideration due to some inherent weakness associated with their personal characteristics. Such hand-outs are humiliating. A backlash of sentiment against hate crimes legislation is predictable considering the precedent set by affirmative action, which is increasingly recognized as a bad idea, with the imprimatur that it had it’s place in a different time when minorities weren’t protected equally by laws.
So, in a legal system with perfect adherence to hate crimes sentencing guidelines, the black gang banger who murders another black gang banger gets a lighter prison sentence than he would had he been white and demonstrably motivated by racial hate. Conversely, enhanced sentencing for hate crimes appears to implicitly presume that the same crimes committed for any reasons other than those specifically identified deserve less punishment. Lawmakers justify this sentencing disparity by invoking the principle that society at large is less threatened by roving gangs of gun-toting killers than by members of hate groups who intimidate those in minority communities, leaving their victims feeling isolated and vulnerable. In a debate with Stephen Clark, Terry Kogan, University of Utah law professor and member of the Civil Rights Task Force on Hate Crimes Legislation, is reported to support enhanced sentencing because it sends a “symbolic message about societal standards and teach[es] a lesson about permissible conduct” (Denton). Symbolism and education aren’t the primary objectives of lawmakers or of laws.
For horrendous crimes committed by racists, homophobes and sexists, the depth of the victimizer’s moral depravity is thought to be less affected by rehabilitation efforts. Generalized hatred is likely to lead to repeated crimes based on the same criminal intent, so hate crimes legislation presumes incorrigibility–similar to the Three Strikes statutes for violent career offenders–and is a preventative measure against future crime. The goal becomes removing these criminals from society for longer periods to make society safer. Your average vengeful psychopath, husband, gang banger, or any other member of society who commits similar crimes for reasons unrelated to race, gender, disability, or sexual preference are perversely thought to be more malleable to prison reform methods.
However, inasmuch as theoretical threats based on a criminal’s past pattern of crimes can’t be accurately predicted or assumed, neither communities nor individuals in traditionally victimized groups can be “protected” as a result of hate crimes legislation. Just as spoken and physical conduct is unforeseeable, neither can laws guarantee protection or even swift and consistent punishment of offenders. An apparent primary premise behind the call for enhanced sentencing is the protection offered through crime deterrence. One form of crime deterrence is removing the criminally inclined and convicted members from society and detaining them (detention deterrence). However, detaining anyone who’s committed any crime, not simply hate crimes, for longer periods ensures that the detainees will not commit crimes, at least not against citizens at liberty in society. So why not enhance sentencing for all convicted criminals, if the purpose of sentencing is both deterrence and longer protection of society? Racists will continue to practice their hate in prison, though embezzlers may have a hard time structuring such a crime behind bars.
Another principle of deterrence is the compelling of people, by threat of punishment, to decide against committing crimes (restraint deterrence). The validity of this principle is largely unsubstantiated by evidence. Arguably, little hard evidence exists that supports the notion that harsher criminal sentencing has a directly attributable reductive effect on a potential or admitted criminal’s decision to commit a crime. The extent of the effect, if it exists at all as a deterrent against hate crimes, is unknowable since there are no statistics on the number of potential criminals who 1) consider committing a hate crime, 2) think about how enhanced sentencing might compound their misery in prison, 3) think about how the label of hate criminal in prison would identify them for retributive punishment from other inmates belonging to the victimized group, 4) decide against committing the hate crimes, 5) and call in their decision not to commit a hate crime to some hotline so that it can be documented in a national database. Every apprehended self-confessed hate criminal obviously wasn’t deterred by the prospect of spending any time in prison, not to mention amended time. Then there are all of those who commit hate crimes who aren’t apprehended, and consequently not counted as statistics which might further validate the case of hate crimes legislation as a deterrent. Any restraint deterrent effect is unknowable.
Additional time in prison has not been shown to reduce recidivism rates, because prison has a way of hardening criminal attitudes. Prison inmates are largely self-segregating along racial lines, and within racially segregated groups, cohesion is often based on hatred and fear of other racially based groups in the prison population. The nature of the prison environment encourages rather than rehabilitates hate crimes mentality. Given additional prison time in which to stew in racial hatred, fully supported by one’s Aryan Nation, Patriot, Nazi skinhead, and KKK prison mates, hate crimes perpetrators predictably gain little perspective on the value of committing crimes for other reasons when they’re released on parole, despite any mandatory racial-sensitivity training the prison might offer.
The threat of capital punishment does not deter those who indisputably commit capital offenses. The reasons that capital punishment fails as the ultimate deterrent apply, in varying degrees, to the failure of enhanced sentencing for hate crimes.
Both law-abiding and law-breaking citizens see frequent stories whose authors are outraged that convicts rarely serve their entire sentence, that existing laws are unenforced, that the criminal justice and penal systems need to be reformed. There’s time off for good behavior, and prison overcrowding that necessitates early releases of jailbirds. There’re work furloughs and weekend work passes, lenient parole boards, and jailbreaks. There’re legal technicalities, shifty defense attorneys, overworked and racist or misogynist prosecutors, plea bargaining, dismissals for lack of evidence, and great lapses of time (up to fourteen years) between conviction and execution in capital punishment convictions, which allows aspiring capital offenders to forget that there are murderers in prison awaiting the needle. There’re the controlled substances abuse outpatient treatment programs, the short-time institutions for criminals determined to be temporarily insane, and liberal boo hoo defenses that reduce sentencing based on the criminal’s sad childhood. There’re the jailhouse snitch arrangements, witness protection programs for organized crime whistleblowers, reduced sentences for turning state’s evidence on co-conspirators, financial penance bargains for reduced time, and juvenile sentencing length restrictions. Then there’s the biggest blow to the concept of deterrence–the absence of high-profile and sustained publicity for each and every low criminal sentenced for every crime, the kind of public display that would instill fear of legal retribution, much as the public square stockades made an example of humiliated Puritan offenders.
The deterrent effect loses power when the criminal considers the fallibility of the legal and penal system. Even exact knowledge of sentencing hierarchies for various crimes doesn’t deter criminals who live by the credo, “They have to catch me first.” Worse is the criminal who becomes more vicious because the possibility of an enhanced sentence inculcates the attitude, “I might as well make the most of the crime if I have to do the extra time.” Hate criminals who are thinking clearly, meaning that hate isn’t blinding them, though stupidity reigns unabated by hate crimes legislation, may vilify and blame the victim for the success of victim advocate groups to gain flawed hate crimes legislation, inflicting additional physical harm to compensate for the unfairness of the expected sentencing. Society suffers when criminals, rather than the law-abiding, lose faith in the system’s ability to exact punishment with unfailing consistency and fairness.
Disaffection with the criminal justice system isn’t the only roadblock to enhanced sentencing in hate crimes as a deterrent measure. Tougher statutes for hate crimes or any crime don’t deter people who fail to consider the legal consequences of their crimes, who are unaware of the specific legal consequences, or who do consider the consequences and decide to risk them, anyway. Granted, most hate crimes committed by hate groups are premeditated, the hatred having been structured, systematized, and regulated by group coordinators. Hate as a by-product of teamwork. For those racist, sexist, homophobic hate criminals who don’t premeditate their crimes, however, committing them out of passionate, blinding anger or jealousy, the prospect of enhanced sentencing simply isn’t a deterrent consideration.
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