In civil society, we conceive of certain actions as being so odious as to merit criminalization. Killing, stealing, singing off-key in North Carolina — each of these has been judged unfit for toleration and has subsequently been outlawed at the federal or, in the last case, state level.
Among these unacceptable actions, some are considered, to quote the intro to “Law & Order: S.V.U.,” “especially heinous.” This means that those who commit them are deemed by the public to merit penalties beyond what exists for crimes we view as lesser. We judge, for example, that accidentally causing someone’s death in a car crash isn’t quite as nefarious as carrying out a carefully planned assassination, resulting in our distinction between vehicular manslaughter (the former) and first-degree murder (the latter). The same quantity of death is equal in both cases, but we acknowledge that the circumstances and intentions behind a crime necessarily play into our judgment of what constitutes proper retribution.
As is evidenced by the fact that virtually nobody in the political mainstream (or, frankly, even on the political fringes) is pushing for an end to hate crime legislation, it is readily obvious that this logic should extend to wrongdoings motivated by the victim’s identity.
The idea behind the distinction between standard crimes and hate crimes rests on the intuitive notion that there is simply more at play in the latter and that their impact on society is bigger and more potentially damaging than comparable actions that lack identity-based motivations. The argument is therefore both sympathetic and directly utilitarian; we bring extra condemnation upon someone found guilty of having assaulted a homosexual purely on the grounds of the victim’s sexual orientation because we believe that such violently expressed sentiment has no place in our society, and because, to quote Chief Justice Rehnquist, “bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims and incite community unrest.” It’s the kind of stuff that we don’t want in our society and that moves us further from the overcoming of inter-group barriers, so we do what we can to eradicate it.
Of course, if the persistence of prejudice well into the 21st century demonstrates anything, it’s that such laws, which have existed since 1964’s Civil Rights Act, may not be a silver bullet in efforts to rid the world of hate. To argue that they should be gotten rid of, though, is misguided at best, duplicitous at worst and reckless at most points in between.
In “Hate Crimes: Criminal Law and Identity Politics,” for example, researchers James Jacobs and Kimberly Potter put forth the notion that hate crime legislation exacerbates racial divides by creating the false perception that wrongdoings are undertaken not by individuals but by the whole of the groups that they identify with. Under such a model, the act of categorizing a theoretical white xenophobe’s ethnically motivated assault on a perceived foreigner as a hate crime leaves the victim to assume that all Caucasians are racist, further dividing the two groups on a grander societal scale.
Such an argument baselessly assumes, though, that the origin of the tendency to project the actions of an individual onto the behaviors of a group rests on our acknowledgment that hate crimes are motivated by prejudice. Projection is a central facet of social psychology; humans almost inevitably tend to assume that “outgroups” (groups to which they don’t immediately identify) are homogenous, threatening and not worthy of trust, leading to the very stereotyping and anger on which hate crimes depend. This existed long before the term “hate crime” was ever uttered, making it surely no coincidence that there is absolutely no hard evidence in sociological or psychological literature connecting the phrase with a rise in what it describes. Check. I did.
Instead, what hate crime legislation allows us to do is prevent such mistrust and hysteria by confronting issues of prejudice for what they are. If a police department is found to be systematically singling out minorities, for example, it is only by bringing the problem to light, doling out proper penalties and working pragmatically toward a better future that we can achieve one.
Indeed, it is only by calling a spade a spade that we can confront the world’s spade population, even if the road toward a better world proves turbulent. In an era when so many groups continue to be so systemically repressed but where progress is at never-before-seen levels of attainability, it befalls each of us to do exactly that. The defense of penalties for hate crimes is an obvious step in such a direction, and efforts to combat such laws serve only to attack the already meager legislative safety net that minorities so evidently depend on.
Contact Ben Kaufman at bkauf614 ‘at’ stanford.edu.
A week ago, some students with too much time on their hands crept by different residences and administrative buildings in the dead of night, spray-painted some very crude swastikas on the side (almost like a child’s finger-paintings, really) and then slunk away. It didn’t take long for the Stanford pot to boil over again, as accusations of anti-Semitism began flying through the Californian sunshine and notable figures from President Hennessy to Rabbi Eisenberg began condemning the actions as intolerable and bigoted. With such a strong outcry of abhorrence, the focus on the crime seems to have shifted its nature. One can almost imagine that, when the perpetrators are caught, they won’t be charged with anything as simple as vandalism or destruction of property. No, that would be too easy. They’ll be leveled with charges of “inflicting emotional distress, spreading fear and panic, perpetrating unsafe spaces on a campus striving for tolerance” and that most unholy of unholies, the dreaded hate crime.
Now let’s imagine if, instead, these fools had spray-painted a figure of Pac-Man on the windows, gleefully gobbling up Blinky or Clyde. Would these innocent cartoons arise such wrath, such vitriol, as the slashed lines and pentagram painted on SAE? It’s hard to think so; other than a few of the more artistic bent who might praise the work as revolutionary or some other meaningless adjective, Stanford’s reaction would altogether be more lukewarm. College students, we might shrug, and go about our business. But a swastika! Hanging is too good for them!
Why, though? And yes, I am serious.
Most will argue that it is the meaning of the symbol created, rather than the mode through which it was made, that is the true crime here. Its meaning is one of cruelty and injustice. It symbolizes the idea of Jewish oppression and slaughter at the hands of a totalitarian regime, and through its splotchy exterior it screams a flood of hate that seeks to crush every semblance of equality in our world. It symbolizes. It represents.
And really that’s all it does, all any icon or mark can ever do. To quote from a mostly-great movie, “Symbols are given power by people. On its own, a symbol is meaningless.” (“V for Vendetta”). To a young child who hasn’t yet been taught of the Holocaust, those lines of paint would carry no weight. No, what people truly are reacting against when they witness a racial slur or genocidal drawing is the reality it once represented and, above all, the fear of a possible return to the past horror at some point in the future. Prompted by this fear, they then seek to blot out this possibility through an extra condemnation and additional punishment. Nowadays the punishment often only fits the crime if the crime is not deemed to be motivated by religion, race, ethnicity, sexuality, gender bias and on and on the list goes. Otherwise an extra penalty is tacked on to the charge, this additional punishment nominally excused in the courts by a perceived societal threat or notion of collective emotional damage (somehow transmitted from a single victim to the entire group) that the offense has spawned. The crime may be the exact same, but this surcharge means that killing a man because of his skin tone is now intrinsically worse than killing a man because his boots squeak.
But there are side effects to adding in motivation or potential as a factor when deciding punishment. The crime, the actual physical damage that can be weighed and measured in terms of lives or dollars of property or broken bones, becomes diminished when these intangibles (which are not only questionable but also nearly impossible to prove in a court of law) enter into effect. In one Texas case, an assault charge that carried with it the hallmarks of a hate crime increased the possible jail sentence from 20 to 99 years. Other arguments against the notion of hate crimes in a legal sense stem from the principle of equality, in this area meaning the thought that all viewpoints are equal and that hate crime legislation effectively places certain schools of thought above others. Still others take the viewpoint that our court system is meant to punish deed and not thought; to do otherwise is both ridiculous and infeasible.
In the past, these questions were irrelevant. Before hate crime legislation, courts would only ask of the accused: “Did you do it?” and “Did you intend to do it?” These two questions established a) guilt (still the most important thing) and b) sanity, or whether a person was fully in control of his or her own actions when the crime was committed. If either of these two was seriously called into question, the sentencing was reduced. However, the question of “Why did you do it?” was not one anyone particularly cared about. A defense lawyer might be inclined to arouse sympathy with the jury box if the reason was especially touching, but outside the grounds of providing background information, a criminal’s motive was irrelevant. To the vast majority of us, any reason for committing a crime does not justify the act itself; that’s one of the reasons we call them crimes.
See, it’s not tolerance or respect or even political correctness that accounts for the backlash so-called hate crimes spawn. It’s the fear. Above all, people fear that the discrimination personified in certain criminal actions is representative of a greater human problem than of one single crime, that it’s a symptom of a larger condition of deep-rooted discrimination and can grow (if unchecked) into an epidemic of prejudiced actions and laws. But these people are seeing the trees rather than the forest. For every one incident, they neglect the thousands of others that disavow and despise that kind of bigotry and strive in small, silent ways for universal equality. These thousands will not allow symbols to dictate the terms of engagement and will not be influenced by the foolhardy or prejudiced.
Contact Wyatt Smitherman at wtsmith ‘at’ stanford.edu.