To Hate or Not to Hate?

With the Sean Bell and Rodney King scandals elevating public concern about racially-motivated violence, support for federal hate-crimes legislation has intensified. Some scholars worry that such proposals use dangerously vague language.

“One thing you have to keep in mind with the hate-crimes statute is that it is drafted extremely broadly. You hear it referred to as a ‘hate crime’ statute—it is therefore natural to believe it must require hatred. It does not,” argued Professor Gail Heriot. She believes that H.R. 1592 masks lawmakers’ long-standing desire to radically expand hate crimes to include rape and other violent acts.

In its current form, prosecutors need only prove that a crime was committed “because of” demographic factors, and need not establish malice, argue opponents. The bill, also known as the “Local Law Enforcement Hate Crimes Prevention Act of 2007,” was passed by the House last May and then referred to the Senate Judiciary Committee.

“This was not simply sloppy draftsmanship. The language was chosen deliberately,” argued Heriot. The University of San Diego law professor described traveling to Washington, D.C. in the 1990’s to complain about similarly vague language. She said,

“A decade ago I had an opportunity when I was working on the Hill to discuss this with representatives of the Clinton Administration from the Justice Department and I innocently thought that this was drafted this way simply because no one was thinking. And I said ‘Hey, what about this rape situation? Isn’t that going to mean that every rape, the person acted because of the gender of the victim?’ …They absolutely refused to say that the statute would not cover all rapes. That was something that they definitely wanted to hold as a possibility.”

Louisiana State University Professor John Baker, Jr. concurred with Heriot’s assessment. “This statute, as Gail pointed out, was deliberately drafted this way. This is no accident,” he said. He later added, “To go into motive is to go into conscience. It may be wrong to be a bigot, but it is not criminal to be a bigot. The state has no business probing into conscience but only prohibiting certain acts.”

Nonetheless, first amendment advocates such as the Anti-Defamation League (ADL) and American Civil Liberties Union (ACLU) have not argued that hate-crime laws will limit free speech.. In addition, the Department of Justice and many state Attorney Generals believe hate-crimes laws aid prosecution.

But would the broad legislation unduly expand federal intervention into state matters? Heriot and Baker argued that rape, thievery targeting the disabled, and border-crossing conflicts could all be labeled hate crimes. “Think about that. Because of the race, gender, disability, sexual orientation—it is very hard to come up with a crime that is not going to be covered by this,” said Heriot.

But proponents believe federal hate-crimes legislation would add a useful tool to the local law enforcement arsenal. While Steven Freeman, the legal affairs director for the ADL, agrees that hate crimes laws are a “blunt tool,” he also believes that the bill will provide a necessary “backstop” for under-resourced states. “From a law enforcement perspective [hate-crimes law] was clearly something seen as a useful tool and these are not squishy-headed, bleeding-heart, touchy-feely types,” he said.

Others call for legislators to transcend the debate between federalism and government intervention. “Too often these discussions of federalism and Congressional legislation devolve into sterile debates about doctrine. In my view, whether there is an adequate federal interest is a supremely practical question, not an ideological one,” asserted Mark Agrast, a Senior Fellow at the Center for American Progress (CAP). He later argued that hate crimes serve a “profound national interest,” not just an “adequate” one.

Professor Heriot believes that the new legislation, which would allow the federal government to prosecute criminals after they have been acquitted in state courts, could lead to routine double jeopardy. Agrast, supported by Freeman, strongly disagreed, saying that “[the bill] basically says to the states, ‘we’re here if you want us’….if you want the resources that are available at the federal level to play some role in enhancing your capacity.”

Agrast also described the four possible outcomes outlined in the legislation as

1. the states either lack or abdicate jurisdiction
2. the states request federal intervention
3. the states “do not object” to federal intervention
4. or “the state fails to vindicate the federal interest in prosecuting hate crimes.”

The last option grants the federal government the right to preempt state courts if it believes that the states are not fulfilling their duties.

Even worse, media sensationalism could end up driving federal prosecutions, argues Baker. Given the sensational coverage of the allegedly racist Jena 6 trials, this seems no small threat.

Regardless of scope, federal hate-crimes laws would provide another means by which national power can preempt state decisions. Given the past history of federal expansion, is it likely that this new power will remain small?

Bethany Stotts is a Staff Writer at Accuracy in Academia.