Viewpoint: What's Wrong with the Hate-Crimes Bill

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Matthew Shepard

Ten years ago this past weekend, Matthew Shepard died. He was 21 but looked maybe 17, and everyone who knew him called him Matt, never the more formal Matthew. He was mostly still a kid, but he became an international symbol after two men he met in a bar pretended to be gay, lured him into a truck, savagely beat him and left him to die tied to a fence on the outskirts of Laramie, Wyo. He held on for five days after being found but never recovered consciousness.

In the years since, Shepard's mother Judy has become one of the nation's most persuasive representatives for gay equality. I first met Judy Shepard five years ago, when I was reporting on how Wyoming had changed since her son was murdered. She is a small, disarmingly direct woman. The other day, when I asked her how she was doing, she simply responded, "Tired." She had just spoken at two events in Washington, and she had attended the dedication of a park bench in Laramie built for her son. She had also made time to do interviews with more reporters than she could count, all while trying to cope with her emotions at the 10-year mark of her son's murder. As usual, Judy's strength was stirring. Like many gay men of my generation — I'm six years older than Matt would have been — I see her as a powerfully maternal figure.

Which is why it's difficult for me to say that I think she's wrong about what could become her son's most important legacy: a hate-crimes bill before Congress called the Matthew Shepard Act. The bill would expand, far too aggressively, the two existing federal hate-crimes laws. One is from 1968; it allows the Federal Government to prosecute crimes committed on the basis of race, religion and national origin when the victim is engaged in public activities like going to school or eating at a restaurant or attending a concert. The other is from 1994; it requires the U.S. Sentencing Commission to increase penalties for crimes on federal lands in which the victim was selected because of actual or perceived race, religion, national origin, gender, disability or sexual orientation.

The Matthew Shepard Act would extend the two laws to cover all crimes committed because of bias, not just those that occur in public arenas like schools and restaurants. It would also extend the 1968 law to cover sexual orientation as well as gender and disability.

It's difficult to argue against hate-crimes laws because it seems like you're arguing for hate. But the term "hate crimes" didn't come into wide use until the early 1980s. The original 1968 law was part of its decade's civil rights legislation, but at the time, the law was not considered to be a law against "hate."

Hate-crimes laws feel great to enact, but they criminalize something vital in a democracy: the right to be wrong. Let's say you chop off my arm because I'm gay. I would hope you go to prison for a long time, but should your sentence be even longer just because I sleep with guys and you disapprove? Don't people have a First Amendment right to disapprove? When did the U.S. government get into the business of criminalizing people's thoughts?

Proponents have made several arguments for hate-crimes laws, but the most common is that the laws address entire communities, not just particular crimes. As the Justice Department said in a 1999 publication about hate crimes (click here for a PDF), "when crimes are committed because of our differences, the effects can reverberate beyond a single person or group into an entire community, city, or society as a whole."

This is the antiriot line of reasoning: we should punish bias crimes more severely because those crimes "can reverberate" and cause riots. This argument was developed during the 1980s. At the time, many in the Northeast feared that race-based crimes would ignite their cities. In 1986, Michael Griffith, a 23-year-old New York City immigrant from Trinidad, was targeted by a white mob when he ended up in the wrong part of Brooklyn. He was struck by a car and killed as he tried to flee his attackers. Subsequently, a then obscure Baptist minister named Al Sharpton led a march through Brooklyn, a march that itself nearly led to violence. A few months later, New York mayor Ed Koch wrote a New York Times op-ed explaining that his "outrage" at the incident had led him to support hate-crimes laws. "Hate crimes, if not responded to, tend to undermine the tolerance necessary in our pluralistic society," he wrote.

But the men who caused Griffith's death were harshly punished without the use of any hate-crimes law. And if the very existence of a hate-crimes law is meant to placate minorities so they don't riot — a rather condescending notion — wouldn't it also exacerbate the anger among those close to the perpetrator, who would then be serving a longer sentence because of things he said during the crime?

Under the current, limited hate-crimes laws, bias crimes have fallen. According to FBI figures, in 1995, there were 24 hate crimes based on race for every 1 million Americans; in 2006 — the most recent year for which data are available — there were 16. Anti-gay hate crimes have fallen from 5.2 per 1 million to 4.7 per 1 million — not a huge drop, but a statistically significant one. Would a broader hate-crimes law have reduced these figures even further? I doubt it. Even if a violent criminal knows that a tough hate-crimes law exists, wouldn't that knowledge just keep him from saying "Faggot" while he chopped my arm off? I suppose that after the crime, I might take some solace in knowing that the criminal didn't utter that word as he maimed me. But I think I would care a lot more about my arm than about any thoughts crossing the attacker's mind as he committed the crime.