Hate Crimes and Liberal Justice
(The following commentary is called “Reflections” by John Mill. John is a noted free thought advocate and broadcaster. This series airs on my American Heathen® internet radio show. Air Date 07/07/12)
Whenever I think liberals and progressives are getting too dogmatic – that is, too much like their political opponents – I like to shake things up. And I consider myself a liberal and a progressive, who better to do the shaking? I reflected on hate crimes being equivalent to thought crimes (on this show) back in August 2010.
But, recently, Matthew Rothschild of The Progressive magazine unwittingly highlighted a contradiction in progressive philosophy: he complained that “a U.S. citizen was sentenced to 17½ years in prison for committing speech and thought crimes” (his words, not mine) by advocating jihad, admiring Osama bin Laden, watching jihadi videos and translating a Saudi religious text on how to participate in jihad – without advocating the killing of civilians or planning a criminal act. This exercise of free speech rights, according to Rothschild, was criminalized by the U.S. government under the USA Patriot Act. This was clearly a “thought crime,” yet progressives think this is an injustice!
So, I asked, how is this different from thought crimes of Americans committed by, say, racists or homophobes? I even called in to one of my favorite podcasts, “The Best of the Left,” with a message to that effect, saying I’d like to have a discussion of hate crimes legislation, which I think simply provides extra penalties for thought crimes.
The host of the podcast obliged by asking his listeners to respond to me, but also by giving this rationale: that a hate crime is not directed against a single victim, but against an entire community sharing a characteristic – as if the criminal didn’t just commit an act of assault, damage to property, bullying, harassment, verbal abuse, insult, offensive graffiti or hate mail – but committed an act of terrorism. Therefore, the enhanced penalty attached to a hate crime is justice, not toward a criminal act, but toward a political act.
Michigan Democratic Congressman John Conyers, who was House Judiciary Committee Chairman from 2007 to 2011, put it this way: “These crimes constitute an assault not against the victim, but against our communities and against the very foundation of Democracy.”
To me, this only seems reasonable… until you reflect that a political act such as terrorism requires some degree of active planning to target a community. How do we leap from a specific attack to a generalized accusation without any evidence? Is there any empirical evidence of a hate crime’s enhanced impact on the community? Remember, if the standard for justice is the thought or motivation behind the act, isn’t every crime a hate crime? And since it is not the victim but the state that prosecutes, isn’t every crime a crime against the community?
Well, as one listener pointed out, there has always been a difference in punishment between pre-meditated murder and random killing, even if the victim ends up dead in either case. But to me, this only seems reasonable until you reflect that the traditional levels of culpability are (1) negligent, (2) reckless, (3) knowing and (4) purposeful. These categories describe the level of legal guilt for a crime, not the thought behind the crime.
Does the Progressives concept of justice mean the law is intended to keep society peaceful – or is the burden of justice also to make citizens better people? I was taught that the law is a code of external conduct, so investigating a citizen’s beliefs and associations in connection with a crime, for me, raises First Amendment concerns. I don’t think bigotry should be or even can be a crime – not in a politically free society. To believe otherwise is to adopt a quasi-religious basis for law: in a free society, we don’t care what you believe but how you act; in a theocracy, we care more about what you believe.
As a species, we’ve already traveled this road and the consequences are disastrous for human liberty and justice. Indeed, as my friend RJ Evans was perceptive enough to point out, “If someone commits a crime of ‘hate’ shouldn’t there be charges filed against those who planted the seeds of hate? And, what about those who planted the seed before them?” Where does it end?
Furthermore, don’t hate crimes penalties effectively place society’s valuation of some victims’ above that of others? Isn’t it balkanizing society into “protected” vs. “non-protected” groups? And I am not objecting solely because, as a white, straight male I’m not likely to be placed in one of those protected groups. Criminal law applies to individuals, not to the past behavior of dominant groups, so no “white privilege” argument can justify hate crimes penalties – unless we are adopting that quasi-religious basis for law.
In case some of us need a refresher, here is what the 14th Amendment says: “No State shall make or enforce any law which shall … deny to any person within its jurisdiction the equal protection of the laws.” That’s why I’m having trouble getting my head around how treating one group better than another group can make us all equal. George Orwell warned against making certain words mean their exact opposite in his novel Nineteen Eighty-Four (1949). But he said it explicitly four years earlier in Animal Farm (1945): “All animals are equal, but some animals are more equal than others.”
Hate crimes penalties represent the same class of mistrust of our Western legal institutions that kept the accused terrorists, now housed in Guantánamo, Cuba, from being tried in domestic criminal courts in the U.S. As Americans, don’t we trust our own legal system? I think excessive dogmatism and political correctness not only make us progressives and liberals as easy to caricature as conservatives. Hate crimes penalties make our standard of justice just as suspicious of freedom of thought.