Issues & Views:Five more years for your thoughts

November 1, 2004

Fighting the good fight

Five more years for your thoughts

Some unexpectedly good news comes from Georgia. On October 25, the state's Supreme Court struck down a "hate crime" law that had been passed in 2000. This law, like similar ones in 47 other states, would force a judge to add up to five extra years to a convicted defendant's prison sentence, if the defendant's crime was deemed to have been motivated by "bias or prejudice." In other words, punishment for the actual crime itself, e.g., a physical assault, would not suffice, if "prejudice" against the victim was known to pre-exist in the mind of the perpetrator.

As promulgated in 47 other states, such laws usually cite prejudice against specific, legally protected groups as deserving of particular regard and additional prison time. These groups are ethnic minorities, women, homosexuals, and other "gender" classifications.

The brazen, unconstitutional nature of these "Gotcha!" laws, contrived by politically powerful interest groups to penalize American whites, have been cited by legal scholars, lawyers, and lots of just plain, ordinary citizens, who are not deaf, dumb and blind. In Georgia's case, because of earlier wrangling in the state's Senate over the wording of the law, no specific groups were cited -- making an unconstitutional law even more vague and unconstitutional.

On a national level, these punitive laws are promoted by pandering members of Congress of both major political parties. Earlier this year, a hate crime bill that would have been the first such federal law, was introduced by the two buddy Senators, Ted Kennedy and Orrin Hatch, but failed to pass in the Senate. The duo Senators will be back next session, undoubtedly, to give their pet project another push towards passage. [See "Sneaking in another 'hate crimes' law."]

Law Professor James Jacobs and lawyer Kimberly Potter, in their book, Hate Crimes: Criminal Law and Identity Politics, claim that "To punish prejudiced offenders two or three times more severely than otherwise similarly situated offenders strains constitutional doctrine and violates principles of proportionality. Enhancing the criminal sentence because of the offender's prejudiced motivation is essentially punishing the offender for his beliefs and opinions." [excerpts here]

In the Georgia case, a white man and white woman were convicted of beating two black men, while yelling racial epithets. In none of the public accounts of this case is the background to the attack made known, although one assumes this information was revealed during the trial. Was there an earlier alliance between the four people involved? This is among the important questions raised by Jacobs and Potter, who cite brawls that break out between people that have nothing to do with obvious racial or ethnic differences. Yet, in the heat of battle, epithets and curse words begin to fly.

How does one tell if a fight really centered around race, or religion, or gender bias? A court should not have to speculate on such a subject, since, in this case, its only role should be establishing punishment for the actual crime of assault -- the physical, tangible crime, not the "thought crime." Jacobs and Potter concur, "Hate crime cannot be accurately counted because, given the ambiguous, subjective, and contentious concept of prejudice, it cannot be accurately defined."

The Georgia court, in throwing out the law, ruled that it was too broad and could be applied to every possible prejudice.

That's the good news. The bad news is that the original law's creators in the state senate plan to have another go at the wording, with plans to add the specific categories of protected groups. This, they hope, will make it work just like the ones in all those other states.

Again, Jacobs and Potter insist that to punish an offender, whose thoughts are said to be known, more severely than another person who is convicted of the same crime, is "disproportionate punishment and a violation of the First Amendment."