* reply on hate crimes

Topics: Civil Liberties
04 Aug 2005

From: Ervan Darnell

[ This is Keith's newsletter reply to my piece last month on hate crimes ]

In reply to Ervan Darnell's cautious endorsement of hate crimes legislation last month, I would like to make some points in opposition. Mr. Darnell raised three questions, and concluded that these questions could not be immediately answered from Libertarian philosophy. I think that is only partially true and would like to reply here.

Question 1 asked if a given act had consequences which spilled over beyond the individual (and thus presumably affected a group of people). Mr. Darnell's claim is that certain criminal acts are meant to affect groups as well as individuals, and thus penalties should be enhanced in those cases. This thinking is seductive, but on several accounts, wrong. The major difficulty is that Mr. Darnell, like so many others, ascribes a solidity to a social artifact -- the group -- that does not exist in reality. Certainly the defendant and the victim exist, as discrete, concrete, corporeal individuals, and the law rightly seeks to adjust their status to repair a transgression of former against the latter. But going beyond that, ascribing membership in sometimes nebulous social groups is fraught with danger of inequitable results. Indeed, because of all the various groups a pair of people could be seen to be representing, any claim of equal treatment under the law becomes suspect.
If an assailant of race X with a profession of Y and a history of Z, etc. assaults a person of race A with a profession of B and a history of C, etc. is "hate" now a predominant factor? Simply stated, people exist, groups don't and membership claims are often fuzzy, and claims of strong motivation because those factors are often suspect.

Question 2 asked if punishing hate crimes provides deterrence. To answer this point requires (somehow) nailing down the operative groups, (somehow) excluding the irrelevant group memberships, gathering extensive data on relative inter-group predation rates, and (somehow) concluding that additional criminal sentencing was the major factor needed to correct any imbalance. It is difficult enough to demonstrate that incarceration does anything at all beyond simply warehousing assailants until middle age slows down their desire and ability to carry out violent enterprises. Only someone far less cynical than me would believe the government would manage to fine-tune criminal punishments to remotely have the intended protective effect without erring toward simple politically expedient excess. If additional punishment somehow deters violent criminals, should we not simply adjust penalties for all convictions?

Question 3 asked about the hidden costs of hate crimes penalties. This is the real deal-breaker for me. Hate crimes legislation demands we rewrite the Declaration of Independence and cast aside the famous line from the second paragraph which begins: "We hold these truths to be self-evident, that all men are created equal, ..." and replace it with "some people are more precious than others". Indeed, because according to current EEOC law, everyone but white males under age forty is in a "protected class", the legal waters promise to be quite murky as all these factors are expensively weighed in ever longer court proceedings. And of course the precedent is now strengthened for even more Federal "thought crime" legislation.

Let's be clear: crimes are bad because they hurt innocent people. The law already allowed a graduated scale of punishments to address the degree of harm caused to the individual. Further, civil law allowed for the collection of damages to the individual. The law already allowed consideration of intent around the bare physical acts performed. To add often foggy claims about damage to various non-corporeal groups obscures the underlying reality and makes our criminal justice system less uniform and comprehensible by those it affects. Even if one insists on some sort of group reckoning throughout these matters, in punishing the criminal individual for specific acts, without recourse to awkward hate crimes legislation, is not every affected group simultaneously protected?

Ervan Darnell
ervan@kelvinist.com http://www.kelvinist.com

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