Punishing Hateful Motives: Old Wine in a New Bottle Revives Calls for Prohibition

Hate crimes are nothing new: crimes in which the victim is selected because of the victim’s membership in some distinctive group (be it racial, ethnic, religious, or other) have been with us as long as such groups have coexisted within legal systems. What is relatively new is their recognition and designation as a discrete phenomenon. But as appellations like “sexual harassment” and “community policing” have begun to teach us, words are only the beginning of the life cycle of a new socio-legal concept. What follows are debates about whether the new category is really a coherent one, what activities should fall within and outside of it, what legal and social strategies should regulate these activities, and, inevitably, whether the whole thing was a good idea in the first place, given the consequences that followed. The concept of “hate crimes” would be cresting if it were a wave; to stick with the life-cycle metaphor, it is in the prime of its life. Legislators on both the federal and state levels are busy drafting and debating new hate crime laws.1 Courts, including the United States Supreme Court, have been called upon to rule on constitutional issues raised by such laws. Academics have been publishing articles and books on the topic at a furious rate. The general public has been continually engaged in the debate by the intense media attention the topic has attracted, especially in the wake of such high-profile crimes as the gruesome murders last year of Matthew Sheppard, an openly gay student at the University of Wyoming who was beaten, tied to a fence, and left to die by homophobic assailants; and of James Byrd, Jr., a black man who was chained to the back of a pickup truck and dragged to his death in Texas by ex-convicts with ties to white supremacist groups. Proponents of hate crime laws point to heinous crimes like these as evidence of the need for enhanced law enforcement tools; they argue that realization of our collective commitment to social equality depends on such government initiatives. Opponents of hate crime laws contend that general laws prohibiting assault, murder, and the like are sufficient for even the most egregious offenses and that the many costs of hate crime laws far outweigh their benefits.