"Smoke and Mirrors"

May 8, 1999

Written by Christopher R. Geidner

OVER THE COURSE of the past months, a flurry of stories have prompted emotional press conferences, statements by the White House, writings by the national media’s editorial boards, cries from the Democratic National Committee, and many more calls to consider hate crimes laws, and more specifically the federal proposal – the Hate Crimes Prevention Act. Next week, the United States Senate will hold its second hearing on this legislation.

This much-needed law would allow the FBI to investigate those cases in which a violent crime was committed because of the victim’s gender, sexual orientation or disability, and only in those cases in which the state and local government were unable or unwilling to act. It also provides penalty enhancement provisions for these bias-motivated crimes. What is the force behind this call to action?

A month ago, one of the two charged killers of Matthew Shepard pled guilty to the atrocity committed against the Wyoming college student last October. This is one of many prominent hate crimes that have sent shock waves across our country in the past year. Hate crimes laws beg the question, often misunderstood, were Aaron McKinney and Russell Henderson committing a crime solely against Matthew Shepard? Or, as they tied Matthew’s small frame to that fence, did they intend to harm all gay, lesbian and bisexual people in some way? That is the very essence of hate crimes laws.

In the always-present attempt by those opposed to hate crimes laws to neither condemn nor condone hate, many have picked up a few arguments which they feel will serve as the silver bullets to kill hate crimes legislation. Looking at these arguments, however, we see that the smoke-and-mirrors act used by HCPA’s opponents is just that – an act.

The first concern presented by some is the idea that hate crimes laws put the defendant in "double jeopardy." This issue has already been addressed by the Supreme Court. They understood, and have ruled, that penalty enhancement provisions for bias-motivated crimes are constitutional.

The reasoning behind this is not just sound, it’s simple. James Byrd’s body may have been the body killed in the tragic Texas dragging-death hate crime: African-Americans. Black were the target in Jasper, and the message of this fatal attack was that all Black men and women should live in fear. Hate crimes laws allow justice for both atrocities committed.

Another argument by those who oppose hate crimes laws is that it "makes some lives more valuable than others." There are two reasons why this does not stand up to scrutiny. The first was discussed in the preceding paragraph, and the second is that motive is always and has always been a consideration in sentencing. Hate crimes laws do not value some lives more than others, but, quite to the contrary, attempt to remedy for all lives, the harm caused by the bigoted actions of others.

The most prominent supposed "academic" argument against hate crimes laws is also the most misunderstood. It is the "thought control" cry that dampens the legislation’s progress. This methodology is flawed in a very significant way. Thoughts and actions are different. There is no hate crime prosecutable unless there has first been an action taken – a crime committed. In those instances, and only those instances, would hate crimes laws then look to see if the crime was committed because of the victim’s disability, gender, or sexual orientation.

To use the "thought control" argument against HCPA is to assert that all civil rights law, and, in fact, most law, is "thought control." While our country’s civil rights laws and HCPA do allow punishment for those whose disparaging and painful actions are committed because of hatred toward a particular group, they do not control any thoughts or any speech of anyone in our proud nation.

A final argument espoused is that "all crimes are hate crimes." This is the least genuine attack on HCPA, and hate crimes laws in general. "Hate crimes" laws, as our society has chosen to label them do not imply that hate is not a basis for all crime. "Hate crimes" is merely the term used to describe those crimes where there is double victimization of both the individual attacked and a group to which the attacked belongs or is perceived to belong. This word game is the most disingenuous charge to come from the opponents of hate crimes laws.

These and other smoke-and-mirror defenses have hid much of the hatred behind the opposition to these laws. Do not allow their poor attempt at magic to divert attention away from the real concern we, as a people, hold for the lives of Americans and the necessary high regard we grant to the protection of civil rights.

Hundreds of organizations across our country support HCPA. A broad, bipartisan coalition of over 150 Members of Congress supports this legislation. Passing this law is society’s way of saying, "Crimes committed because of a person’s gender, disability, or sexual orientation is wrong and we will not accept it." To take this step, we must all urge our Members of Congress to co-sponsor, or thank them for already co-sponsoring, the Hate Crimes Prevention Act of 1999.

Christopher R. Geidner lives in Austintown, Ohio and can be reached for comment at [email protected]. Permission to reprint this article can be obtained by contacting the author.