In 1988, Congress passed the Hate Crimes Statistics Act. In 1994, it passed the Hate Crimes Sentencing Enhancement Act and the Violence Against Women Act. In 1996, it passed the Church Arson Prevention Act. Now, saying that Congress must do still more, Senator Edward Kennedy proposes yet another federal statute, the Hate Crimes Prevention Act of 1998.
Kennedy's bill would expand federal criminal jurisdiction to a degree never before contemplated. It would overlap with hate-crimes laws already in force in 41 states. It would give US attorneys the authority to prosecute violent crimes — from simple assault to murder — which have always been illegal in every state. It would stretch the definition of "hate crime" far beyond what most Americans understand that term to mean; for example, it would turn every rape into a federal "hate crime" against women.
The lynching of James Byrd, Jr., was a ghastly, stomach-churning crime. Prosecutors do not need a new "hate-crime" charge to go after the perpetrators with the full force of the law.
And why is so tremendous an increase in federal power necessary? Two words, says Kennedy: Jasper, Texas. The sickening murder there last month "shocked the conscience of the country," he told the Judiciary Committee a few days ago. "A strong response is clearly needed." To drive home his point, the daughter of James Byrd Jr. — the black man butchered so monstrously in Jasper — was brought to Washington to testify in favor of Kennedy's bill.
But there is nothing a new federal hate crime law can supply that isn't already in the Texas criminal code. "A strong response"? Prosecutors in the Jasper case will seek the death penalty if the men charged with killing Byrd are convicted. How much stronger a response did Kennedy have in mind? There is no state in the union where prosecutors would ignore so stomach-churning a hate crime, or fail to demand the harshest punishment available. Far from proving that a vast expansion of federal prosecutorial powers is urgently needed, the horror in Jasper demonstrates that it isn't.
What minorities have to fear most is not white-supremacist hate crimes going unpunished. It is "ordinary" violent crime, the great bulk of which is black-on-black. One of the nation's leading scholars of crime and race, Harvard Law professor Randall Kennedy, writes: "It makes sense to suppose that local law enforcement officials will probably allocate more of their scarce resources to the crime that is a Page 1 cause célèbre than to the crime that never makes it past the back pages of the local press."
But that's not a problem Ted Kennedy cares about. Liberal politicians of his stripe find it a lot sexier to denounce hate crimes that cross racial, ethnic, religious, or sexual lines than to deal seriously with punishing violent crime in general. Even though it is violent crime in general that causes most of the bloodshed and mayhem in America. Of the roughly 20,000 homicides, 30,000 rapes, 150,000 robberies, and half a million aggravated assaults for which police will make arrests this year, only a tiny fraction would qualify as hate crimes. What do we gain by shining a spotlight on that fraction and eclipsing the rest?
The recent rash of hate crime laws would be understandable if crime motivated by bigotry and racism were out of control. It isn't. A few years back, the Minnesota Department of Public Safety reported that there had been 425 bias crimes statewide the year before, a finding that led the district attorney in St. Paul to decry the "massive increase in hate crimes." Yet those 425 criminal attacks accounted for just two-tenths of 1 percent of all the violent crime reported in Minnesota that year. Check the numbers for the other states; the results will be the same.
The blood of bias-crime victims is no redder than that of "ordinary" victims. The daughter of a man murdered because he was black sheds tears just as hot as the daughter of a man murdered because he had $20 in his pocket. By singling out hate crimes for special statistical and prosecutorial attention, lawmakers in effect declare some victims — and some victims' grieving loved ones — more equal than others.
In an age when Americans are under constant pressure to splinter into groups — to see themselves first and foremost as members of an aggrieved race, class, or gender — the last thing they need are more laws emphasizing their differences and calling inordinate attention to bias and hatred. Kennedy's bill furthers a deeply destructive trend: an insistence on casting violent offenders not merely as criminals who threaten society's well-being, but as various kinds of bigots — racists, sexists, gay-bashers, Jew-haters. This is profoundly wrong. The purpose of criminal codes is not to protect blacks from whites, Jews from skinheads, women from misogynists, gays from straights, or immigrants from nativists. It is to protect all of us from lawbreakers.
Every single crime that would be covered by Kennedy's legislation is already a crime. Each one can already be prosecuted. Each can already be punished. "Hate Crimes Prevention" has a fine ring to it, but this bill would prevent nothing except unity. What it would promote is balkanization, class warfare, and identity politics. Of all the ways to memorialize James Byrd, that has to be the worst.
(Jeff Jacoby is a columnist for The Boston Globe).
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