Law as thought control

Wisdom of the week

[Reprinted from Issues & Views August 13, 2001]

Disproportionately harsh prison terms in many places of the country are now becoming the norm, especially so when law authorities decide that a "hate crime" is involved.

Brian Swetnam of Maryland, all of 22 years old, is having 10 years of freedom removed from his life, because he burned a cross on his high school campus when he was 19. He was charged with federal "hate crime conspiracy." There will be no parole for this young man, who in saner times would have been sentenced to a brief period in the county jail and/or community service. Today, for his act of folly, in which no one was hurt and no property damaged, he must give over a decade of his life.

In Houston, 21-year-old Matthew Marshall and four friends committed a similar foolish act when they burned a cross on the lawn of a house owned by blacks. Again, no harm was done to persons or property, yet Marshall has been sentenced to 10 years in prison--for an act that normal people once labeled a misdemeanor.

Thanks to unconstitutional "hate crime" laws, simple civil offenses are now ratcheted up into felony crimes. Concerning this turn of events, black syndicated columnist William Raspberry observes:

What drives the demand for additional penalties? It can't be deterrence. No one can believe that Matthew Shepard or James Byrd would be alive if their killers had faced the prospect of a hate-crime conviction. No, hate-crime legislation is driven by factors that seldom get mentioned. One is our memory of a time when lynchings and similar outrages went unpunished by southern courts. It was that refusal to punish--a species of nullification--that led to the enactment of federal laws. Is there still a need for such legislation?

Another factor, also memory-driven, is the sort of behavior that used to be seen as precursor to hate crimes: cross burnings, swastika paintings and the like. Without hate-crime legislation, wouldn't we be reduced to punishing such behavior as misdemeanors? And with hate-crime legislation? Just how long a sentence should there be for some idiot who expresses race hatred by burning a cross?

Then there is the matter of simple revulsion. We want to register--in a societal way--that not only some behavior but also some motivation is beyond the pale. Violence, we want to say, is bad; violence triggered by group hatred is worse. We make a distinction between acts intended to frighten their victims and those intended to kill--even if the outcome is the same. If we can distinguish on the basis of intention, why not on the basis of motivation--of hate?

I have two problems with that line of thinking. First is the division of American citizens into various categories more or less worthy of whatever protection the law can give them. If we want to provide special status for blacks and Jews, for instance, what about homeless bums who may find themselves subject to attack for who they are? What about special protection for abortionists, or drug dealers, or prostitutes or those right-wing clerics whose unctuous smiles some people find so annoying?

And the other problem: Hate-crime legislation finally turns out to be an attempt at thought control. It says we'll punish you for what you did, yes, but also for what you were thinking when you did it. It says we'll punish you not merely for your racist or anti-gay behavior but also for your bigoted beliefs.

How can so many thoughtful people believe that punishing thought is a good idea?

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