The Hate Crimes Temptation:

The push is on in Congress to pass a new and dramatically expanded federal hate crimes law. The current main federal law (18 U.S.C. 245) was passed in 1968 during the civil rights struggle. It covers only race, ethnicity, national origin, and religion, provides assistance to local authorities to deal with such crimes, and allows federal prosecution only where the victim is engaged in a federally protected activity (like a civil-rights demonstration). A separate federal law, the Hate Crimes Statistics Act of 1990, provides for federal gathering and reporting of evidence of the incidence of hate crimes, including anti-gay crimes. The FBI reports the incidence of these crimes, and its website has useful data on hate crimes in every state going back to the 1990s.

The proposed hate-crimes law (H.R. 2662) would drop the requirement that the victim be engaged in a federal activity, thus greatly expanding the scope of federal prosecution. It would provide federal investigation and prosecution of crimes motivated by bias against a person's sexual orientation, gender, gender identity, and disability, thus adding to the categories covered. And it would give money and other resources to state and local authorities to investigate and prosecute these crimes.

A new column in the Advocate published under the names of Human Rights Campaign Executive Director Joe Solmonese and Judy Shepard, mother of Matthew Shepard, who was slain in a notorious and vicious crime in Wyoming in 1998, argues in favor of passage of the new law. They argue:

Fear of violence remains a horrible reality for millions of GLBT Americans—even in places that many consider “tolerant” or “progressive.” Every act of violence is tragic and harmful in its consequences, but not all crime is based on hate. A bias-motivated crime affects not only the victim and his or her family but an entire community or category of people and their families.

Nothing much to disagree with there. Having myself been a victim of such an attack 17 years ago, I know that anti-gay violence tends to be especially vicious. Knowledge of its existence places a whole group of people under fear of attack, which has all kinds of effects on how one leads one's life.

But what exactly will an expanded federal hate crimes law do to deal with this problem? Here's the answer Solmonese and Shepard give:

You may ask, isn’t the bill merely symbolic? It won’t stop future attacks or bring back those we’ve lost. Well, it is true that there is some symbolic value to the law. We honor all past victims by creating a federal law to combat hate crimes. But make no mistake about it: this law offers a real solution to combating anti-LGBT violence. It does so by accomplishing two very important goals.

First, the federal government gains the authority to prosecute anti-LGBT hate crimes. No matter how awful the crime, nor how compelling the evidence, the federal government simply cannot act without this law.

Second, this legislation will put crucial federal resources at the disposal of state and local agencies and equip local law enforcement officers with the tools they need to seek justice. There have been numerous hate-crimes cases where local jurisdictions simply lacked the full resources to prosecute the guilty. As an example, when Matthew (Judy’s son) was murdered in Laramie, Wyo., in 1998, the town had to scramble financially to handle the investigation, prosecution, and security required. The case ended up costing this small locality of roughly 28,000 people about $150,000, and the county sheriff’s department was ultimately forced to furlough five deputies to save money. The police department also incurred about $25,000 in overtime costs. Federal assistance would have been a huge help.

I have long been skeptical about the practical value of a federal hate crimes law. Nothing in the Shepard/Solmonese argument allays that skepticism. Consider:

(1) There's no evidence I'm aware of that hate-crimes laws actually deter hate crimes beyond what the law already deters. (If readers are aware of any such evidence, I'd love to see it.) All but seven states already have special laws dealing with hate crimes, and 24 of the states include anti-gay violence. We now have almost 40 years of experience with these laws. Yet Shepard/Solmonese provide no evidence such laws have been effective. Indeed, a careful reading of the column shows that they do not even claim an enhanced deterrent effect. They claim only that passage of a federal bill will improve by some degree the likelihood of punishing offenders for attacks that have already occurred, not that it will deter future violence.

Hate crimes are especially vicious and irrational crimes, welling up from deep hatreds, resentments, and fears that law can hardly touch. They're often committed by young males in their teens and early 20s who can't be expected to know the nuances in criminal law and whose animalistic behavior in this respect is probably not very responsive to nice legal incentives. I doubt the prospect of federal as opposed to state prosecution or of some additional time in prison beyond what the offender would get anyway will deter bias attacks.

(2) Aside from punishing offenders — which does and should happen anyway under existing law and which could be enhanced without creating special categories of protection — the purpose of a hate crimes law seems entirely symbolic. While I'm not unmoved by the symbolic value of law, I'm opposed in principle to criminal laws of purely symbolic value. Opposition to purely symbolic criminal laws was a good reason, for example, to oppose sodomy laws, which were a largely symbolic (and very partial) reinforcement of traditional sexual morality.

(3) The column argues that in some cases local jurisdictions lack the resources to prosecute hate crimes, citing the Matthew Shepard case as an example of the high expense involved. Lack of resources is a common complaint of law enforcement authorities at every level — from prevention to investigation to prosecution. But there is no evidence that this claimed lack of resources is a problem unique to hate crimes, or to crimes against gays. Perhaps there should be a general federal local law enforcement assistance act, but why give special assistance to one class of crimes that seem no more costly to law enforcement than another?

(4) The proposed federal law seems an unwarranted intrusion on federalism. The investigation and prosecution of violent crime, with a few exceptions involving things like federal officers and federally controlled substances, has traditionally been the job of the states. The column notes that the federal government will now be able to prosecute more hate crimes. Yet there is no evidence presented that local and state authorities are not already prosecuting such crimes under existing laws, whether under standard laws against violent crime or under their own hate crimes statutes. There's anecdotal evidence that some law enforcement authorities in a few jurisdictions have occasionally been lackadaisical or unconcerned about anti-gay crimes, but where is the evidence of widespread, systematic underenforcement to justify a federal law covering every jurisdiction in all 50 states? We should ask for some such evidence before the federal government takes over yet another area of traditional state authority.

(5) The proposed bill includes federal punishment for crimes based on "disability." Such crimes are of course horrible and it will be difficult politically to resist inclusion of this category. But what is the evidence that this is a pervasive phenomenon in violent or other crime? In the absence of such evidence, it seems like just a PC add-on, intended more for political than practical effect. The authors say "everyone" will now be protected. But why not cover "Vietnam-era status", age, pregnancy, and so on?

(6) While the column claims that nobody has ever been prosecuted for a mere "thought crime," that is an evasion of the danger these laws may present and of the objections that have been lodged against them. Of course, mere thought is not criminalized. One must commit an underlying crime before a hate-crimes law comes into play. But the potential problem is that evidence of what one thinks about a group may be introduced to prove a hate crime eligible for federal prosecution even if, in fact, it didn't motivate the crime. I'm not personally very discomforted by this prospect since inquiry into motive is common in the law. I'm also not aware of much real danger to the First Amendment in the 40 years of hate-crimes prosecution so far. But the column avoids the issue rather than confronting it.

(7) The proposed law is of dubious constitutionality under United States v. Morrison, which struck down the Violence Against Women Act as beyond Congress's authority under the Commerce Clause and under Section 5 of the 14th Amendment. VAWA had provided a special federal civil remedy for victims of gender-motivated violence. The Court struck it down, citing inter alia the lack of a jurisdictional hook to federal interests and the intrusion it represented on the traditional role of the states in dealing with crime. Providing federal criminal prosecution of hate crimes and stripping the requirement included in the 1968 law that the victim be engaged in a federally protected activity, as the new proposed bill does, raises substantial questions about whether it exceeds Congress's constitutional power. The crimes do not seem "economic" in the sense the Court has used the term in its Commerce Clause decisions, and neither "sexual orientation" nor "gender identity" nor "disability" (added categories in the new bill) have garnered special protection from the Court under its Fourteenth Amendment jurisprudence, justifying a larger federal role under Section 5. It's true the Court has recently retreated from some of the implications of its decisions limiting federal power under the Commerce Clause, but upholding the proposed hate crimes law would be an even more dramatic retreat and would seem at the very least to involve overruling Morrison.

No doubt national gay-rights groups are looking for some kind of win early in the new Congress to show long-suffering donors they can be effective. Winning on hate crimes may also reassure members of Congress that they can vote for a pro-gay bill without serious repercussion. Other important issues — like a federal employment protection bill and repeal of "Don't Ask, Don't Tell" — are on the horizon. An "anti-crime" measure is the easiest first step to take and may actually get President Bush's signature, leading to more progress later.

But I am concerned that passing this seemingly symbolic bill may instead give the new Congress a "pass" — freeing it to avoid the harder and far more consequential questions of employment, military service, and protecting gay families in the law. These are all issues about which Congress really can do something of practical value.

UPDATE: In a comment to this post, Marty Lederman helpfully points out that an earlier proposed hate crimes law contained a jurisdictional hook requiring that the crime be linked to interstate commerce. For that reason, and based on a creative 13th Amendment argument, the OLC during President Clinton's tenure advised Congress the new law would be constitutional even after Morrison.

The new version of the bill also contains a type of jurisdictional hook in subsection (a)(2)(B), requiring that the offense affect interstate commerce in some way, or be connected in some way to travel in interstate commerce, or occur while the victim is engaged in economic activity. The full text of the bill is here.

The inclusion of this hook does indeed improve the chances that the bill will be held constitutional. It does not, however, end the constitutional objections. None of the Court's decisions in the Commerce Clause area since 1995 have definitively addressed whether the inclusion of such a hook would render an otherwise unconstitutional law constitutional. It has always struck me as odd to think that a Court concerned with preserving a historic balance between federal and state power, and with limiting federal commerce authority largely to the regulation of "economic" matters, would be won over by a requirement that, say, the weapon used in the offense moved at some point across state lines. Indeed, the congressional findings of a connection to intertstate commerce recited in the bill, e.g., impeding interstate travel and commerce by victims, are very similar to those found inadequate in Morrison. But the constitutional question will be more interesting than I initially thought.