Arguments Against Hate Crime Laws:

• The federal judiciary released a statement recently expressing constitutional and practical concerns about hate crime laws. The underlying criminal activity of a hate crime, such as robbery, assault, or murder, traditionall falls under state jurisdiction. The concern is that by passing federal hate crime laws, there will be a mass federalization of crime which should and could be adequately handled at the state level instead of overburdening our already overwhelmed federal courts.

• There is no evidence to suggest that hate crime laws will have a deterrent effect upon hate crimes.

• In many cases, it is very difficult to prove a hateful motivation for the criminal act. The decision to charge a hate crime as such should not be left to law enforcement. The F.B.I., for example, includes gestures and other body language in its hate crime statistics. Prosecutions to date in some cases have been based upon bigoted statements made several years before the act in question.

• There are already sufficient criminal laws and penalties on the books to punish hate crimes. We should punish the act, not the thought process of the actor. If these acts are inadequately prosecuted and punished when the victim is of a minority or disadvantaged class, the answer lies in increased education and sensitization of law enforcement and the judiciary.

• Since 41 states already have hate crime laws, expanding federal laws in this area could result in double prosecution in many instances, with the federal government following up in cases where they simply do not like the results in state trials.

• The gender provision of the proposed federal expansion bill could make run-of-the-mill rape and domestic violence incidents “federal hate crimes.” The disability provision could result in basic crimes against disabled victims -- such as mugging a person in a wheelchair -- being prosecuted as “federal hate crimes.” The result risked is a trivialization of the federal criminal sanction.

• Thought is the core value of the First Amendment’s freedom of speech clause. It is absolutely protected and any attempt to regulate it cannot be tolerated.

• In many cases, enhanced penalties are not even possible. In most states, the penalty for murder is life in prison, and in many, the death penalty is already available.

• Granting increasing powers of investigation to federal officials over our thought processes to prove bias and prejudice will become exceedingly Orwellian. Do we want to authorize the subpoena of book store records so that the fact that our spouse owns, say, a copy of The Turner Diaries can be used against him or her to prove the requisite mental intent for a hate crime?

• Do we want to support laws that will increase the investigator’s search and seizure powers into the sanctity of our houses, property and personal effects, which is guananteed to us by the Fourth Amendment to the Constitution?

Our conclusion:

Crimes committed out of hatred or bigotry toward the characteristics of any individual or group cannot be tolerated. They must be condemned in the strongest possible language. Law enforcement must be encouraged to prosecute such crimes to the fullest extent of our criminal laws. Yet, whether we should enact more criminal laws with stiffer penalties and which would authorize greater intrusion into our constitutionally protected areas of free speech, free thought, free association, and personal privacy, is a matter that should be studied carefully and thoroughly before any action is taken.

Legislation expanding the current federal hate crime law, and the role of the federal government in prosecuting such crime, threatens to erode our cherished individual rights to free speech, thought and association, the right to privacy, and the right to Justice and Due Process of law (including fair trials and punishments).

Let us not enact laws out of grief and passion, or in response to a singular criminal event, however horrific it might be. Cooler heads are needed where our fundamental liberties are at stake.

For the other side, we recommend David Neiwart of Orcinus, whose book on hate crimes, Death on the Fourth of July: Hate Crimes and the American Landscape will be released in 2004. His lengthy rebuttal to each of our arguments above is here.