Penalizing “Thought Crimes”

Nat Hentoff, writing at RealClearPolitics, observes with dismay that

the press remain[s] mostly silent about the so-called “hate crimes law” that passed in the House on April 29[.] The Local Law Enforcement Hate Crimes Prevention Act passed in a 249-175 vote (17 Republicans joined with 231 Democrats). These Democrats should have been tested on their knowledge of the First Amendment, equal protection of the laws (14th Amendment), and the prohibition of double jeopardy (no American can be prosecuted twice for the same crime or offense). If they had been, they would have known that this proposal, now headed for a Senate vote, violates all these constitutional provisions.

This bill would make it a federal crime to willfully cause bodily injury (or try to) because of the victim’s actual or perceived “race, color, religion, national origin, gender, sexual orientation, gender identity or disability” – as explained on the White House Web site, signaling the president’s approval. A defendant convicted on these grounds would be charged with a “hate crime” in addition to the original crime, and would get extra prison time.

The extra punishment applies only to these “protected classes.” As Denver criminal defense lawyer Robert J Corry Jr. asked (Denver Post April 28): “Isn’t every criminal act that harms another person a ‘hate crime’?” Then, regarding a Colorado “hate crime” law, one of 45 such state laws, Corry wrote: “When a Colorado gang engaged in an initiation ritual of specifically seeking out a “white woman” to rape, the Boulder prosecutor declined to pursue ‘hate crime’ charges.” She was not enough of one of its protected classes.

Corey adds that the state “hate crime” law – like the newly expanded House of Representatives federal bill – “does not apply equally” (as the 14th Amendment requires), essentially instead “criminalizing only politically incorrect thoughts directed against politically incorrect victim categories.”

Whether you’re a Republican or Democrat, think hard about what Corry adds: “A government powerful enough to pick and choose which thoughts to prosecute is a government too powerful.”

But James Madison, who initially introduced the First Amendment to the Constitution, had previously written to Thomas Jefferson on the passage of the Virginia Statute on Religious Freedom: “We have in this country extinguished forever … making laws for the human mind.” No American, he emphasized later, would be punished for his “thoughts.”

However, doesn’t the House “Hate Crimes Bill” state that nothing in the legislation shall “prohibit any expressive conduct protected from legal prohibition” – or speech “protected by the free speech or free exercise clauses in the First Amendment”?…

This legislation, certain to be passed by the Senate, will come to the Supreme Court….

[The justices] should … remember that the Fifth Amendment makes clear: “nor shall any person be subject for the same offence to be twice put in jeopardy.” But the House “hate crime” bill allows defendants found innocent of that offense in a state court to be tried again in federal court because of insufficiently diligent prosecutors; or, as Attorney General Eric Holder says, when state prosecutors claim lack of evidence. It must be tried again in federal court!

Imagine Holder as the state prosecutor in the long early stages of the Duke University Lacrosse rape case!…

Consider the infamous murder of Matthew Shepard by Russell Henderson and Aaron McKinney. It is evident that Matthew Shepard’s murder — like the mass slayings at Columbine and elsewhere — has been used cynically by advocates of one agenda or another. The agenda is gay rights in the Shepard case; it is gun confiscation in the school-shooting cases.

Those who are rushing to legislate against “thought crimes” should confront these questions: Would Henderson and McKinney’s crime be less heinous if Shepard wasn’t killed because of his homosexuality (a strong possibility)? In other words, why should it more wrong to kill a homosexual because he’s a homosexual than to kill a homosexual for some other reason, or to kill a straight, white male for any reason? Dead is dead, and therein lies the real crime.

If it is more wrong to kill a person because of a personal characteristic than simply to kill a person, consider the case where A kills his neighbor, B, because A dislikes having B as a neighbor. Should neighbor-killing be declared a hate crime? If so, then why not declare all crimes against persons to be hate crimes, and be done with it? That, at least, would comply with the Constitution‘s guarantee of equal-protection, assuming (wrongly, no doubt) even-handed application of the law.

The law should penalize crime, and not presume to read the minds of perpetrators, or — as Nat Hentoff reminds us — grant greater protection to some classes of persons than to others.