Tuesday, June 9, 2009

Commentary: Shepard Hate Act Myths-Kills Speech, Protects Pedophiles and Duck Pervs

One of the most compelling promises of the internet age is the ability to engage knowledgeable people of good will in a debate about important issues of public policy. One of the realities, however, is that because there is no filter for honesty, truthfulness or good faith facts can get obliterated in the process. There are various intelligent arguments AGAINST  a federal hate crime law that relate to issues of judicial economy, resource allocation, federalism, redundancy, Commerce Clause restrictions, and the issue of defendant retrials. It appears that many of the most vocal opponents of the Shepard Hate Crime Act either do not understand them or  find them compelling because they prefer instead to promote ridiculous or incorrect theories. Here are some myths ranging from mainstream to wacky:
  • It Punishes Criticizing Gays, Jews or Israel: The act punishes violence, not non-violent bigotted or political expression (See Harry Jackson, Abdel Malik Ali)
  • It Punishes Free Speech generally: In Wisconsin v. Mitchell (1993), the US Supreme Court held unanimously that a similar law criminalized nothing new, and offensive speech not coupled with violence is wholly protected. Like any violent crime, a defendant's statements that connect him to a crime can be used to establish intent-nothing new here.
  • It protects pedophiles and people who have sex with ducks: Existing state (32 states) and federal hate crime law (Hate Crime Sentencing Enhancement Act of 1994) that protect on the basis of "sexual orientation" has never been held by any court to protect such perversions. The law references orientation and identity only and would in no way diminish the effect of existing laws punishing sexual attacks on children or animals. (See Pat Robertson) 
  • It promotes homosexuality: No more so then it encourages people to change religion or become disabled, since it punishes violence on those basis as well.
  • It violates double jeopardy: The Supreme Court since 1957 has ruled that states and the federal government can have their own laws punishing the same conduct. Securities laws, drug offenses, bank robbery, and presidential assassinations are covered under state and federal law. The Shepard Act has special requirements to limit these prosecutions, and some states like NY have laws preventing states from initiating  dual prosecutions.
  • States Are Already Doing a Good Job: Some are, Mississippi didn't even count any in 2007, while similar states in the region counted much more. Moreover, some states don't have hate crime laws and 18 don't cover sexual orientation. 
  • A Crime is a Crime: The criminal law differentiates all the time. It consistently takes into account risk, severity, community disruption, motive, offender characteristics, victim characteristics, age, weapon, vulnerability, and location among other things. Hate crimes have been shown to be more violent and have a heightened risk of retaliatory violence. As Prof. James Weinstein observes, Kristalnacht was more than the sum of a bunch of disconnected assaults and arsons
  • It doesn't punish those who attack whites: Whites are among the most victimized, and the Supreme Court case affirming hate crime laws involved a white victim. 

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