The recent murder of a homosexual college student in Wyoming has sparked predictable cries for the enactment of so-called "hate crimes" legislation. Proposals for such legislation would implement an additional penalty for crimes that seem motivated by intolerance for certain groups.
The most obvious problem with the proposed legislation is surely the absurdity of distinguishing "hate crimes" from other crimes. Should we classify all other criminal acts as "love crimes"? Would having one's family brutally murdered for plain old reasons like money or sadism be somehow less morally grave than a murder motivated by intolerance of homosexuals or some other politically incorrect sentiment? Such is the unavoidable logic of hate crimes legislation.
For the assumption of hate crimes legislation is that there are more serious crimes out there than murder, or the taking of human life. This assumption seems an all-too accurate reflection of contemporary liberalism. In an age where suicide of the infirm and elderly, and abortion even very late in the pregnancy, becomes more common, it ought to be no surprise that taking human life seems somehow insufficiently criminal. For liberals to really get their back up about an offense, it must go beyond mere murder and rise to the level of "intolerance."
Our arrival at this strange juncture in our political and legal culture can, at least partially, be traced to the 1960s, when there was a decisive change in the manner in which we understand criminal behavior. The traditional approach to crime and its punishment from the Founding generation up through the twentieth century was that crime is a moral transgression and that punishments ought to reflect the moral gravity of offenses. Deterrence, incapacitation, and even some modes of reform were regarded as important aims of the criminal law. But fundamentally, crime was regarded as a violation of the natural rights to life, liberty, and property--rights which it is the whole purpose of our government to protect.
In the politics of the 1960s, society began to question the idea of crime as a moral transgression. Instead, writers like former Attorney General Ramsey Clark argued that criminals were not necessarily morally responsible for their crimes. Society was said to be at fault, forcing criminal behavior through adverse social and economic conditions. We began to look less at the moral culpability of individuals for their actions and looked instead to the sentiments or conditions that lead to offenses. In this way, real crime was often excused if it was a reaction to poverty or racial prejudice, while wealth became an aggravating factor. Ramsey Clark urged a use of the criminal code to attack what he saw as the most hateful crime of his day corporate greed.
Hate crimes legislation reflects this notion that the criminal law ought to be directed not toward a common moral good, but instead to the current political fad. In the 1960s, the trend was more explicitly class-based, so crime motivated by greed was seen as particularly egregious. Today, given our politics of "tolerance" (where the most serious offense involves making moral distinctions between various "lifestyles"), crimes motivated by animus toward homosexuals must be considered the most hateful of all. Accordingly, we see that anti-homosexual murder is considered worse than other kinds of murder, yet beating another human being unconscious with a brick and dancing with glee about it, as several Los Angeles rioters did live on television a few years ago, is hardly considered a crime at all since it was motivated by rage over the racist Rodney King trial verdict.
The growing call for hate crimes legislation shows how our politics has become dominated by sentiment, seeking to criminalize all feelings, thoughts, or attitudes that run contrary to the trends of the day. This is precisely the influence in lawmaking that the American Founders sought to prevent. They set up a system, now much eroded, in which the short-term passions of the public would be unable to govern; instead reason, considered and calm, would control. The call for hate crimes legislation also runs contrary to the principles of the Founding in its contributing to the disturbing tendency to federalize all crime. In the last decade or two, both political parties have been guilty of promoting a dizzying array of federal criminal statutes in response to crime problems that are more properly handled at the state level.
The crime perpetrated against the Wyoming college student was a brutal murder, entirely deserving of our outrage and of prosecution to the fullest extent of state law. Such is the reaction warranted by any murder. Yet we are not likely to see similar reactions to "ordinary" murders by many of those now clamoring for hate crimes justice in the Wyoming case. Quite to the contrary, many on the Left who currently demand hate crimes legislation are the very same folks who consistently oppose vigorous prosecution and longer sentences for the perpetrators of ordinary (should we call it "non-hateful"?) murder. If they are truly opposed to hateful crimes, one must hope that the liberal advocates of hate crimes legislation will abandon their candlelight vigils for mass murderers and join in the call for just punishment for all crime.