Polemicscat's Weblog

Examining settled and unsettling questions.

Hate-crime Laws and the Principle of Equality

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From time to time, some member of Congress pushes to have a certain crime labeled a “hate crime” and to make the offense punishable by more rigorous penalties. At first, that may seem like a good idea.

On the other hand, prosecutors have always had leeway when indicting perpetrators of personal assault. That’s what the distinctions of first degree murder, second degree murder, and manslaughter are all about. And, based on the circumstances of a particular case, a judge is able to adjust the penalty (within the limits of law) when sentencing a criminal. So one would think that laws already on the books could be used to deal with any crime of personal assault. Not so, according to the advocates for new hate- crime laws.

Hate-crime legislation is difficult concept to put into rational language.   The application of hate-crime law depends on courts being able to say that an assault occurred because of a particular state of mind of the perpetrator, a much more difficult thing to assess than the outward, verifiable facts of the case.  One might expect that hate crimes are those committed with the greatest cruelty and malevolence.

No, not necessarily—and here is where the concept of hate crime gets into serious trouble—it depends on who the victim is. If the victim is a member of a certain group named in the law, it might be.  It might be a hate crime if the murderer is not also a member of the group protected by the hate-crime law. And it might be a hate crime if we can be sure the motive for the murder is somehow related to the fact that the victim is a member of one of the privileged groups named in the law.

In Anglo-American legal tradition, equality before the law is a fundamental principle of justice. That’s why a satirical passage in George Orwell’s novel Animal Farm is so effective. In this fable, the animals revolt and take the farm away from the human owners. Next, the animals establish Seven Commandments of equality. But then the pigs take power from the other animals and reduce the Seven Commandments to one: “All animals are equal but some animals are more equal than others.”

Below the frieze on the facade of the United States Supreme Court Building are engraved the words, Equal Justice Under Law. And on many courthouses around the nation, justice is personified in the statue of a woman wearing a blindfold and holding the scales of equality. The blindfold symbolizes the fact that, if justice is to be equal, it must be blind to the particularities that make one citizen different from another.

The making of hate-crime laws, written exclusively for the benefit of a special group of citizens, violates the impartiality suggested by the blindfold. Instead of looking solely at WHAT offense has been committed in order to determine the appropriate punishment, such laws look first at WHO is offended in order to determine the appropriate punishment.

Laws to protect privileged groups are already on the books. With the passage of hate-crime laws, the United States is well on its way toward making certain citizens more equal than others.

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Written by polemicscat

August 14, 2008 at 11:20 am

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