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Even before we knew it was a brutal murder, when it was
a vicious assault with the victim struggling on a
respirator, there were vociferous and frequent statements
that Wyoming needed to pass a hate-crimes
law.
The facts behind this horror do not appear to be in serious dispute. Late last Tuesday or early last Wednesday, two men in a Laramie tavern offered a ride to Matt Shepard, a 21-year-old student at the University of Wyoming. They robbed him, beat him savagely, took his shoes and left him tied to a fence in freezing weather.
Shepard, who died in a Fort Collins hospital early yesterday morning, was a homosexual who made no secret of his preference. Thus the clamor for Wyoming to enact a hate-crimes law.
A hate-crimes law enhances the penalties for activities that are already illegal. A hate crime presumably differs from an ordinary crime in two respects: the motivation of the perpetrator and the status of the victim.
In other words, if you rob the little old lady down the street because you're greedy, that's an ordinary crime. If you rob her because you have something against elderly people or female people, then it's a hate crime, and you would face stronger penalties in a state like Colorado which has a hate-crime law.
In either case, the little old lady has been robbed and she suffers as much, but in the latter case, it's a more serious offense.
As I have written earlier, these laws are a bad idea because they violate a fundamental goal of our judicial system: equal protection under the law.
How so?
Assume that one of the currently fashionable theories of criminology is true, that criminals are rational agents who respond to penal threats like increased penalties. (Since most criminals don't think they'll be caught, this premise seems dubious, but almost every elected official in America believes it, so for purposes of argument, let's posit that things really do work that way.)
Given that, then we must probe the mind of the
perpetrator, who is presumably thinking Gee, I'd really
like to haul somebody out of here and give him a
pistol-whipping. Now, if I take Person A, who comes under
hate-crimes protection, I'll get 30 years if I'm caught and
convicted, whereas if I take Person B, who is not covered
under the hate-crimes law, I'll get only 15 years. So I'm
going to go pound on Person B.
Thus Person B gets the pistol-whipping because the penalty for pounding B is less than the penalty for pounding A. In theory, all citizens deserve the full protection of the law, but with a hate-crimes statute, the excluded citizens get less protection.
Granted, our system does not come even close to offering
full protection to all now. The same politicians who
campaign against special rights
often leap to
increase the penalties for violence against peace officers,
who deserve no more and no less protection than any other
citizens. In other words, I'd like to think that it's just
as serious a crime to shoot at you or me as to shoot at a
cop.
But why make these inequities worse with a hate-crimes law?
The second problem with the concept of hate crimes, as opposed to regular crimes, is that it tends to criminalize speech rather than conduct, since motivation becomes an aggravating factor.
Motivation has always been a consideration, of course. The difference between planning to kill someone and being involved in a brawl that gets out of hand is the difference between felony murder, which is a capital offense, and manslaughter, which might not even mean prison time.
But in a hate crime,
if the accused has made
derogatory statements about the victim's group, then speech
becomes an aggravating factor. Speech thus becomes
criminal.
If we have freedom of speech in this country, then this is wrong. Freedom of speech means that we are as free to utter hateful and derogatory statements as we are to issue noble and uplifting statements. The content of speech is no proper business of the criminal-justice system, but it becomes an issue with a hate-crimes law.
It's another encroachment on our Bill of Rights. To protect our right to speak the good, we must maintain the right of people to speak evil. That's what freedom of speech is all about.
So I hope Wyoming resists all the pressure it will get to pass a hate-crimes law. One of its nicknames is the Equality State, and the best way it can live up to that reputation is to strive to give every citizen the full protection of the law, rather than provide more protection for some citizens than others.
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