Almost as bad as hate crimes themselves is the designation. It is a little piece of totalitarian nonsense, a way for prosecutors to punish miscreants for their thoughts or speech, both of which used to be protected by the Constitution (I am an originalist in this regard). It is not the criminal act alone that matters anymore but the belief that might have triggered the act. For this, you can get an extra five years or so in the clink.
Take the sad case of Tyler Clementi. The Rutgers University freshman leapt from the George Washington Bridge three days after his roommate and another person allegedly set up a webcam to watch Clementi's intimate encounter with another man and then streamed it to others. Immediately, the cry of "hate crime" was heard throughout the land, and the authorities said they were considering bringing such a charge. (No decision yet.) But Clementi, by all accounts a very sensitive young man, might have reacted to such spying the same way if his partner had been a woman -- or, if he were married and with a woman not his wife. Is, somehow, the life of a homosexual more valuable than the life of a heterosexual?
The standard rationale for hate-crime laws is that hate crimes, to quote the proclamation Quinn and the police commissioner issued that day, "tear at the very fabric of our free society." To wit, if one gay man is mugged, other gays are intimidated. A whole class of people is affected. Maybe so. But if there is a rape in the park, women will stay away. And there are whole areas of town -- any town -- where I wouldn't go in an armored car on account of a fear of crime. Crime affects everyone.
The torture of those three men in the Bronx is amply covered by a plethora of laws -- assault, kidnapping, etc. The victims were not more or less victimized by their assailants' hatred of gays. Their torture was not more painful because their torturers hated them. It was the torture itself that mattered. And if the alleged gang members accused of the crimes either were not somehow aware that there are laws forbidding torture or didn't care one way or another, why do we think an additional law regarding hate is going to deter them?
Hate-crime laws combine the touching conservative belief in the unerring efficacy of deterrence (which rises to its absurd and hideous apogee with executions) with the liberal belief that when it comes to particular groups, basic rights may be suspended. Thus we get affirmative action in which certain people are advantaged at the expense of other people based entirely on race or ethnicity. This tender feeling toward minorities must account for why civil liberties groups have remained so appallingly silent about hate-crimes legislation.
The upshot combines Orwell with Kafka. What is the crime? Attempted murder? Or attempted murder on account of hate? Whom does the perpetrator hate, and how much does he hate him or her? On Long Island, some goons felt a solemn obligation to rid the area of Hispanics. Hate, pure and simple. But one of the perpetrators had black and Hispanic friends -- and a swastika tattooed on his leg. Was he racist or, as his father maintained, just a dumb kid? Did he really hate Hispanics or just Hispanic immigrants and, anyway, what did it matter? Their victim was dead -- the ultimate crime. Should his killers get life for his death -- and another five years for what they thought of him?
Prosecutors have vast powers. Most of them are decent, prudent people with a healthy respect for the law. But hate-crime laws arm the overly ambitious among them with permission to seek punishment for unpopular and often dreadful political views -- for thought. Those three guys in the Bronx were allegedly tortured by homophobic gang members who deserve jail. Their hatred, however, deserves condemnation.