Tyler & Trayvon
BILL KELLER | NYT NEWS SERVICE
IN 2009 President Obama signed a federal bias crimes law named for the victims of two gruesome 1998 atrocities: the young gay man who was tortured, lashed to a fence and left to die; and the black man chained to the back of a pickup by white supremacists and dragged until he was dismembered. The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act joined a 40-year accumulation of statutes declaring that crimes committed with a mind full of racial spite or anti-Semitism or homophobic hatred should be punished more severely than identical crimes committed for greed or vengeance.
Today the notion is embedded in our culture. Almost every state has some variety of hate crime law. The most recent FBI count, for 2010, reports 6,628 “criminal incidents” involving bias — instances where local authorities judged that the offender was motivated by hatred of a particular group. The Supreme Court unanimously upheld disparate penalties for bias crimes in 1993. The ACLU, after years of resisting, endorsed a hate crime bill in 2005.
But the fact that it is constitutional and commonplace does not quiet the nagging sense that hate crime legislation resembles something from an Orwell dystopia. Horrific crimes deserve stern justice, but don’t we want to be careful about criminalizing a defect of character? Because our founders believed that democracy requires great latitude for dissent, America, virtually alone in the developed world, protects the right to speak or publish the most odious points of view. And yet the government is authorized to punish you for thinking those vile things, if you think them in the course of committing a crime.
The issue is back with us thanks to the heartbreaking deaths of two teenagers. One is Tyler Clementi, the Rutgers student who jumped to his death from the George Washington Bridge after his roommate surreptitiously, briefly, video-streamed him kissing another man. The other is Trayvon Martin, the black Florida youngster shot dead by a neighbourhood watch volunteer. Clementi’s roommate, Dharun Ravi, was convicted not only of invading Clementi’s privacy and intimidating him, but of acting with an anti-gay bias that could add up to 10 years of prison to his sentence. The shooter in the Trayvon Martin case, George Zimmerman, has not been charged with anything, but politicians are already slinging the h-word.
If the idea of criminalising hatred makes you queasy, as I think it should, these two cases will not settle your stomach.
Anyone who followed the Rutgers trial closely — or read Ian Parker’s absorbing investigation of the two roommates in The New Yorker — is likely to conclude that Ravi is arrogant, mouthy and insensitive, but not a malicious homophobe. Clementi was an openly gay, socially awkward, complicated 18-year-old, who killed himself for reasons we don’t know.
My reading of the case is that the jury seized on those handy bias statutes in a clumsy attempt to punish somebody for a death that remains unexplained.
It’s not a great reach to say that Ravi faces up to 10 years in prison for being a jerk.
The shooting of Trayvon Martin has become a cause before it is even a case. It’s natural to admire the resolute grace of his grieving parents and to endorse their demand for answers Florida authorities have been slow to provide. It’s commendable to shine the lamp of shame on Florida’s absurdly permissive gun laws. (This, remember, is the state that tried last year to make it a crime for doctors to talk to patients about the dangers of guns in the home.) But fashioning a narrative from the hatecrimes textbook — bellowing analogies to the racist nightmares of Birmingham and Selma, as the reliably rabble-rousing Reverend Sharpton has done — is just political opportunism.
This is the kind of demagoguery that could prejudice a prosecution, or mobilize a mob. Is it not creepy, by the way, that Spike Lee was tweeting the suspected home address of George Zimmerman? As if to say, “Go get him!” (Lee sent apologies and a cheque to the elderly couple who were scared from their home because, oops, the tweet gave the wrong address. But apparently it’s O.K. to terrorize Zimmerman.) If the trial of Dharun Ravi illustrates how readily hate crime laws can be abused by juries, the death of Trayvon Martin shows how easily they become pitchforks for showboating politicians.
The anguishing cases of Tyler and Trayvon sent me back to the earlier debates over hate crimes. It is an abundant literature packed with historical analogies, philosophical hairsplitting, political posturing and interesting digressions.
Many of the justifications for antihate laws seem to me to fall short: bias crimes terrorize more than the immediate victim; yes, but so does a mugger who frequents a particular neighborhood. We must protect the most vulnerable; fine, then why not assign extra penalties for criminals who prey on the poor, children, or — as a few prosecutors have done — the elderly? Racism and other prejudices are especially offensive motives; worse than sadism, or pedophilia? Back in 2001, Heidi M. Hurd, a professor who comingles law and philosophy, wrote an article entitled “Why Liberals Should Hate ‘Hate Crime Legislation.’ ” The thesis sounded contrarian; hate crime laws evolved out of a great liberal cause — civil rights — and have been propelled by activists and politicians most of us would call liberal. Hurd, though she is a Democrat, was referring not to the contemporary political left but to traditional, John- Locke-and-John-Stuart-Mill liberalism, which holds that the state is licensed to temper bad behavior, not to perfect human nature. Hate crime laws, she wrote, crossed that line: “The law now regulates not only what we do, but who we are.” There is nothing novel about the law taking into account a criminal’s state of mind; one of the prerequisites for a conviction under common law is “mens rea” — a guilty mind, malice aforethought, criminal intent.
The law also recognizes gradations of guilty purpose. A premeditated killing is more punishable than one committed in the heat of the moment, which is worse than a killing that results from negligence.
New York law compounds the punishment if you kill someone to prevent him from being a witness.
The distinction Hurd makes — convincingly, I think — is that when you penalize intent you are punishing matters of choice. One can choose not to pull the trigger, not to throw the rock, not to steal the purse.
“You can’t choose not to be prejudiced or biased — at least not willynilly, on the spot,” she told me, when I called her the other day at the University of Illinois. “We pass moral judgments all the time against bigots and chauvinists and homophobes and so forth. But this is a question not of what we should morally blame people for, but of what we should deprive them of liberty for.” In her criminal law class, Hurd teaches the cases of Matthew Shepard and James Byrd, and says that every time she confronts those monstrous crimes a part of her wonders, “Why don’t we use the power of the state to make people less evil?” But, as she points out, those were both crimes eligible for the death penalty. “What are you going to do, kill somebody twice?” In most cases, hate crime laws take offenses that would carry more modest sentences — assault, vandalism — and ratchet up the penalty two or three times because we know, or think we know, what evil disposition lurked in the offender’s mind. Then we pat ourselves on the back. As if none of us, pure and righteous citizens, ever entertained a racist thought or laughed at a homophobic slur.
Bias laws are widely accepted. They are understandable. They are probably here to stay. But they seem to me a costly form of sanctimony.