To Hate or Not to Hate?
AIM Column | By Bethany Stotts | May 20, 2008
The last option grants the federal government the right to preempt state courts…
With the Sean Bell and Rodney King scandals elevating public concern about racially-motivated violence, support for federal hate-crimes legislation has intensified. Some scholars worry that such proposals use dangerously vague language. “One thing you have to keep in mind with the hate-crimes statute is that it is drafted extremely broadly. You hear it referred to as a ‘hate crime’ statute—it is therefore natural to believe it must require hatred. It does not,” argued Professor Gail Heriot. She believes that H.R. 1592 masks lawmakers’ long-standing desire to radically expand hate crimes to include rape and other violent acts.
In its current form, prosecutors need only prove that a crime was committed “because of” demographic factors, and need not establish malice, argue opponents. The bill, also known as the “Local Law Enforcement Hate Crimes Prevention Act of 2007,” was passed by the House last May and then referred to the Senate Judiciary Committee.
“This was not simply sloppy draftsmanship. The language was chosen deliberately,” argued Heriot. The University of San Diego law professor described traveling to Washington, D.C. in the 1990’s to complain about similarly vague language. She said,
“A decade ago I had an opportunity when I was working on the Hill to discuss this with representatives of the Clinton Administration from the Justice Department and I innocently thought that this was drafted this way simply because no one was thinking. And I said ‘Hey, what about this rape situation? Isn’t that going to mean that every rape, the person acted because of the gender of the victim?’ ...They absolutely refused to say that the statute would not cover all rapes. That was something that they definitely wanted to hold as a possibility.”
Louisiana State University Professor John Baker, Jr. concurred with Heriot’s assessment. “This statute, as Gail pointed out, was deliberately drafted this way. This is no accident,” he said. He later added, “To go into motive is to go into conscience. It may be wrong to be a bigot, but it is not criminal to be a bigot. The state has no business probing into conscience but only prohibiting certain acts.”
Nonetheless, first amendment advocates such as the Anti-Defamation League (ADL) and American Civil Liberties Union (ACLU) have not argued that hate-crime laws will limit free speech.. In addition, the Department of Justice and many state Attorney Generals believe hate-crimes laws aid prosecution.
But would the broad legislation unduly expand federal intervention into state matters? Heriot and Baker argued that rape, thievery targeting the disabled, and border-crossing conflicts could all be labeled hate crimes. “Think about that. Because of the race, gender, disability, sexual orientation—it is very hard to come up with a crime that is not going to be covered by this,” said Heriot.
But proponents believe federal hate-crimes legislation would add a useful tool to the local law enforcement arsenal. While Steven Freeman, the legal affairs director for the ADL, agrees that hate crimes laws are a “blunt tool,” he also believes that the bill will provide a necessary “backstop” for under-resourced states. “From a law enforcement perspective [hate-crimes law] was clearly something seen as a useful tool and these are not squishy-headed, bleeding-heart, touchy-feely types,” he said.
Others call for legislators to transcend the debate between federalism and government intervention. “Too often these discussions of federalism and Congressional legislation devolve into sterile debates about doctrine. In my view, whether there is an adequate federal interest is a supremely practical question, not an ideological one,” asserted Mark Agrast, a Senior Fellow at the Center for American Progress (CAP). He later argued that hate crimes serve a “profound national interest,” not just an “adequate” one.
Professor Heriot believes that the new legislation, which would allow the federal government to prosecute criminals after they have been acquitted in state courts, could lead to routine double jeopardy. Agrast, supported by Freeman, strongly disagreed, saying that “[the bill] basically says to the states, ‘we’re here if you want us’....if you want the resources that are available at the federal level to play some role in enhancing your capacity.”
Agrast also described the four possible outcomes outlined in the legislation as
1. the states either lack or abdicate jurisdiction
2. the states request federal intervention
3. the states “do not object” to federal intervention
4. or “the state fails to vindicate the federal interest in prosecuting hate crimes.”
The last option grants the federal government the right to preempt state courts if it believes that the states are not fulfilling their duties.
Even worse, media sensationalism could end up driving federal prosecutions, argues Baker. Given the sensational coverage of the allegedly racist Jena 6 trials, this seems no small threat.
Regardless of scope, federal hate-crimes laws would provide another means by which national power can preempt state decisions. Given the past history of federal expansion, is it likely that this new power will remain small?
Bethany Stotts is a Staff Writer for Accuracy in Academia, and can be contacted at
6 Comments | Post a Comment
I always wondered what a ‘hate crime’ was. Is it the opposite of a ‘love crime’?
This is just another example of insanity that is put in place to have more and more weapons to wield against the people of this country.
Many of our laws, actions, and thoughts these days are based on emotions - rather than common sense, honor, or legality.
This country also brainwashes it’s children into believing destructive things. This hate crime and other legislation is indicative of the type thinking our kids are taught these days.
Whatever other countries might teach their children will not be nearly as destructive to our future generations as what is being drilled into them today in our public schools.
“first amendment advocates such as the Anti-Defamation League (ADL) and American Civil Liberties Union (ACLU)...”
I hope this is subtle sarcasm. These two groups are some the worst things that have ever happened to the Bill of Rights.
“first amendment advocates such as the Anti-Defamation League (ADL) and American Civil Liberties Union (ACLU)...”
subtle sarcasm!right!
Come on people… this is just common sense. You know what a hate crime is, so you can see why we need this legislation.
Let’s take the case of a random mugging vs. a homophobic male who attacks another person because they’re gay or transgendered. You KNOW this type of an attack is going to far more severe to the victim (and anyone who’d support this type of attack only proves the need for hate crimes legislation).
Since local officials are often afraid of coming down heavy on “good ol boys” who may be local, sons of friends of theirs, etc., you know darn well they’re going to go easy on them and let gay bashings go unpunished.
So, the little old lady, or man, that is beaten up for their money is not as bad as the gay man that gets beaten up?
Is the gay man’s body worth more than anyone else?
No I don’t know that the gay man’s beating will be worse than any other.
This law is being used against people in very simple things - such as people getting into a fight over some simple thing. IF the races are different - there will be a hate crime charge.
It has nothing whatsoever to do with an attempt to make anything right. It simply gives the federal government the right to step in and take over law enforcement.
Wake up! It could be you or yours who is charged with this assinine and unconstitutional crime.
Everyone think about it, just wait until your child or some child you love gets into a fight in school over some silly thing, and your child gets charged with a hate crime because the other child is a different race, sex, or sexual preference, and ends up in prison. It can happen and very easily.
No person’s life, body or property is worth more than another’s.
No, I don’t know what a hate crime is - I do know what federal government intervention is, however.
May 21 at 11:12 am | #1 | Link
Vague language is a tool for manipulation. Is
not EVERY crime “hate crime ?” “I hate having
no money for drugs and I hate to go to work for
the money, so I’ll go “knock off” some cashier
or individual to get the money I need.” “I hate
not having the power/influence that my peer has,
so I’ll take the bribe/kick-back/veiled political
contribution to increase MY power and continuance
in office.” “I hate not having the money to go
to the casino, so I’ll embezzle from my company.”
Common Christian teaching, upon the Bible, is
to hate the sin, but love the sinner. In other
countries (and maybe this one, too), certain other
relgions teach children from the earliest grades
forward to hate America, and the those who aren’t
of THEIR faith are infidels and not worthy of
living.
Vague language opens the door for preferential
interpretation and unequal protection/punishment
under OUR laws.