The Magazine

Hate-Crime Laws

For starters, they are unnecessary and bad public policy

Oct 30, 2000, Vol. 6, No. 07 • By JACKSON TOBY
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DURING THE SECOND DEBATE between Al Gore and George W. Bush, Gore criticized Bush for failing to support a bill that would have toughened the Texas hate-crime law. That measure -- named after James Byrd Jr., a black man dragged to his death in Jasper, Texas -- failed to pass. Bush defended the way Texas had handled the Byrd case.

The three men who murdered James Byrd. Guess what's going to happen to them? They're going to be put to death. A jury found them guilty, and it's going to be hard to punish them any worse after they get put to death.

True, a toughened hate-crime law could not have added anything to the penalty in this case. But there are lesser crimes like assault or vandalism where hate-crime statutes can indeed add to the penalty. Moreover, additional categories of people can be protected. For example, the Byrd bill, which died last year in the Texas Senate, defined a hate crime as one motivated by the victim's race, ethnicity, sex, disability, religion, or sexual orientation. And the Hate Crimes Prevention Act co-sponsored by Democratic Senator Edward Kennedy of Massachusetts and Republican Senator Gordon H. Smith of Oregon, which the U.S. Senate passed in July, would extend the scope of federal hate-crime protection beyond race, religion, and national origin to gender, sexual orientation, and disability.

Democrats are more enthusiastic than Republicans about expanding the scope of hate-crime laws. President Clinton urged the House to follow the lead of the Senate. He said that making attacks on gays a federal hate crime was one of his legislative priorities. Hillary Rodham Clinton, in her race for a Senate seat in New York, told civil rights advocates on the New York City Hall steps on August 23 that the House of Representatives ought to pass legislation strengthening current laws against hate crimes. She accused her opponent, Rep. Rick Lazio, of not supporting the enhanced federal bill forcefully enough, which his campaign headquarters denied that same day.

Few politicians of either party are willing to declare that hate-crime statues are simply bad policy. To say that sounds prejudiced. So 42 states and the federal government have now enacted hate-crime laws. Nevada, for example, adds 25 percent to a prison sentence for felonies judged to be hate crimes.

Toughening the penalty when anti-Semitism or hatred of blacks motivates an assault or a murder makes legislators feel virtuous. But such laws do not make sense as public policy for two reasons.

To begin with, they are unnecessary. As Bush pointed out in the debate, in the cases that arouse the most public indignation, conviction already results in very severe penalties: death or life imprisonment. But even with less serious felonies, like armed robbery, existing sentencing procedures already allow room for tougher sentences for more heinous crimes. Second, hate-crime add-ons increase the inefficiency of the criminal justice system by wasting scarce custodial space.

Why the laws are unnecessary is fairly obvious. Criminal statutes are written with ranges of penalties, not ordinarily requiring a fixed term of imprisonment. The purpose of doing this is to give judges the opportunity to individualize punishments to fit both the crime and the criminal. Thus judges use their discretion to punish a professional armed robber more severely than the little old lady who gets the dumb idea of supplementing her pension by holding up a neighborhood bank. The judge does not discharge this difficult responsibility alone. He has a probation staff that investigates the offender's background and submits a pre-sentence report on the results of the investigation. When a legislature enacts a hatecrime punishment, on the other hand, it creates a one-size-fits-all penalty that ties the judge's hands once the jury comes in with a guilty verdict.

The second reason hate-crime laws are bad public policy is less obvious. A mandatory sentence for hate-crime offenders forces judges to incarcerate a particular category of criminal for a set period, which may well be longer than he thinks the offender deserves; this is inflexible and possibly unfair. Hate-crime laws leave less room in jails and prisons for others guilty of equally serious or worse misbehavior. A judge who has presided over hundreds of criminal trials for a variety of crimes is in the best position to decide how long an offender should be incarcerated in limited prison space. In many states, overcrowding has forced prison systems to release prisoners whom most citizens consider a public menace.

Two New Jersey cases that applied that state's Ethnic Intimidation Act illustrate both of these failings of hate-crime laws.