George Will: Why Not Hate Crimes For All?

May 13, 2007

The Washington Post

WASHINGTON -- Political entrepreneurship involves devising benefits to excite or mollify niche constituencies. Hence H.R. 1592, the Local Law Enforcement Hate Crimes Prevention Act of 2007, which has passed the House, trailing clouds of sanctimony -- lots of members announced their hatred of hate.

Hate crime laws -- 45 states already have them; Congress does not mind being duplicative -- mandate enhanced punishments for crimes committed because of thoughts that government especially disapproves. That is, crimes committed because of, not merely accompanied by, those thoughts. Mind-reading juries are required to distinguish causation from correlation.

The federal hate crime law enacted in 1968 enhanced punishments only for crimes against persons engaged in a federally protected activity, such as voting. H.R. 1592 would extend special federal protections to persons who are crime victims because of their race, color, religion, national origin, sexual orientation, gender, gender identity or disability. But there are many other groups, so there will be other hate crime bills.

Hate crimes are seven one-hundredths of 1 percent of all crimes, and 60.5 percent of them consist of vandalism (e.g., graffiti) or intimidation (e.g., verbal abuse). Local law enforcement organizations favor H.R. 1592, which promises money. Among the more than 200 organizations supposedly ardent for the bill are the American Music Therapy Association, Aplastic Anemia Foundation of America, Catholics for Free Choice, Easter Seals, Goodwill Industries, International Dyslexia Association, Rock the Vote, Women's Alliance for Theology, Ethics & Ritual. Who knew?

Hate crime laws are indignation gestures. Legislators federalize the criminal law in order to use it as a moral pork barrel to express theatrical empathy. They score points in the sentiment competition by conferring special government concern for more and more particular groups.

Laws hold us responsible for controlling our minds, which should control our conduct. But government increasingly wants to inventory and furnish our minds, removing socially undesirable desires. Law has always had the expressive function of stigmatizing particular kinds of conduct, but hate crime laws treat certain actions as especially wicked because the actors had odious (although not illegal) frames of mind.

This draws government steadily deeper into stigmatizing certain thoughts and attitudes, which incites more and more groups to clamor for inclusion in the ranks of the especially protected. And Timothy Lynch of the Cato Institute notes that prosecutors of supposed hate crimes must pry into defendants' lives -- books and magazines read, Internet sites visited, the nature of his or her friends -- to uncover evidence of unsavory thinking.

If H.R. 1592 makes it to the president's desk, he probably will veto it because it is moral exhibitionism by Congress with no constitutional authorization. H.R. 1592 justifies itself under Congress' enumerated power to regulate interstate commerce. The bill simply asserts that hate crimes affect such commerce and are committed using articles that have "traveled" in interstate commerce.

The Supreme Court, however, has rejected "the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local."

By conferring special status -- enhanced protection -- on certain government-favored groups, H.R. 1592 traduces the principle of equality before the law. Yet Speaker Nancy Pelosi says it honors "the tradition of our Founders, that every person is created equal." Here is another sample of the House debate, from Rep. Lynn Woolsey, D-Calif.:

"My granddaughter Julia is 3 years old. She goes to preschool. Even in preschool, they gang up and they bully. The parents at that preschool tell me that my Julia steps in and she stops it. She will not put up with bullying and unfairness. It is our turn. Be as brave as a 3-year-old. Vote for H.R. 1592."

Plucky Julia aside, questions remain. Are all rapes hate crimes because rapists pick the victims because of their gender? When in 1989, a gang of black and Hispanic youths went "wilding" in Central Park, raping and savagely beating a white jogger, was this considered a hate crime? No, because the youths also assaulted some Hispanics, so their punishment was not enhanced.

When a surveillance camera recently taped a mugger beating and robbing a 101-year-old New York woman, he was charged with a hate crime -- presumably hatred of the elderly. His attack on a 51-year-old woman was not a hate crime. Complications multiply, protected categories proliferate. Next? People who wear fur or eat meat? Some writings by the killer at Virginia Tech expressed hatred of the rich, but they are not a category protected in this year's hate crime legislation. Perhaps in next year's.

georgewill@washpost.com