Friday, September 28, 2007

Is a hate crime a distinct crime?

News today that congress is trying to tie hate crime legislation to the must-pass defense spending bill. Bush is threatening an unprecedented veto, it will be interesting to see if he actually does it.

What intrigued me about this story was not the surface story about the relevance of hate-crime legislation in a defense bill, or the political fight or model for passing this. Rather, it was this nugget in the story:

But Republican Sen. John Cornyn of Texas maintained the measure has nothing to do with the defense authorization bill. He argued that crimes should not be considered more or less despicable because of the victim's identity.

"All crimes of violence are crimes of hate," said Cornyn, a strong ally of the White House. "All ought to be judged according to the same criteria. All ought to be subject to the same range of punishments, given to juries able to convict people based on evidence produced in court (and) not based on (the) politically correct notion that some crimes are more heinous than others."

What is interesting about this statement is that it essentially argues that there is no such thing as "terrorism," that Sept. 11 was nothing more or less than a mass murder, a sort of Green River Killer on steroids.

The fact is that we do distinguish motive (pre-meditated crimes are considered more serious than heat-of-the-moment crimes) and, yes, victim as well. Fortunately, nobody is arguing that genocide is somehow distinct from - and more evil than - simply killing random people.

I've seen the argument before that "hate crimes" are problematic because, by weighing the intent/motivation, or the identity of the victim, they essentially criminalize thought. This is a pretty strong and compelling argument, but it doesn't quite pass muster for me for a pretty simple reason. Terrorism or hate crimes are distinct from the crime of the underlying act precisely because they carry a chilling message beyond the basic act. Burning a shed in a random person's yard is arson; burning a cross is clearly something more menacing to society, yet by Cornyn's argument, it is also simply arson.

Maybe I'm actually making Cornyn's point. Burning the cross is actually two distinct crimes: it's the underlying crime of arson, with an additional crime of harassment/intimidation (or whatever is the technical legal issue). But Cornyn seems to ignore the latter point.

When Matthew Shepard was beaten to death in Wyoming 9 years ago (the inspiration for the bill), it wasn't a random petty crime; it sent an intimidating message of fear among a population of people simply for being who they were. Whether you treat it as a distinct crime or as an attribute of the crime - is to miss the big picture entirely.