In a classic case of “he should have known better,” a lawyer (or, more likely, a soon-to-be-former lawyer) in New York has been convicted of a felony for making harassing phone calls to his African-American neighbors, which included threats and the use of racial slurs. He tried to make it look like members of the Ku Klux Klan were responsible for the calls, and routed the calls through an Internet service that prevented the source of the calls from being identified through caller I.D. However, the police were able to track the calls back to him.
This lawyer also happened to work for the government of the state of New York. The calls were made in 2010, and after being charged, he resigned from his $104,000/year job in Albany.
And now, finding new employment in a job market that’s notoriously bad for legal professionals is the least of his worries: the defendant has been sentenced to 1-3 years in state prison for criminal harassment, with a felony hate crime enhancement. The prison term is the maximum allowed for the crimes he was convicted of.
I predict that, on some quarters of the Internet, there will be the predictable howling about how this case is another example of “political correctness” run amok, and how hate-crime laws are chipping away at free speech, they give racial minorities special protection, etc., etc.
I should make a few things clear at the outset: hate crimes laws do not give any particular racial group “special” protection. Hate crime laws do not actually create any new crimes. They do not enhance punishments because of the race of the victim. Rather, they enhance punishments for crimes that were motivated by the victim’s race (or other classification, such as religion, gender, or sexual orientation). So, in theory, a white person who robs, assaults, murders, or commits any other crime against another white person specifically because of the victim’s race, could be charged with a hate crime.
Furthermore, hate crime laws do not have any impact of free speech. They don’t make it illegal to express racist, sexist, or homophobic sentiments, if one is so inclined. However, the First Amendment right to free speech has never been interpreted to allow harassment or credible threats of violence against individuals. So, this man’s conduct would have been a crime even without the racial element.
And the fact that he made racist statements in the phone calls was not, in itself, a source of criminal liability. Rather, it was simply used to prove the fact that his actions were motivated by the race of his victims, therefore warranting the hate crime enhancement.
Reasonable minds can differ on whether or not hate crime laws are a good idea. However, there’s a lot of confusion around about what these laws actually do. And when any high-profile hate crime case enters the public discussion, these misconceptions are often repeated by pundits as if they’re fact, which further increases the public’s misunderstanding of the nature and purpose of these laws.
For example, in 2009, Congress passed, and President Obama signed, a law that extended federal hate crimes laws to apply to crimes committed against individuals based on their sexual orientation.
Conservatives in Congress opposed this, because they claimed it might end up being applied in ways that limit free speech and freedom of religion. Presumably, they were concerned that it could be used against religious leaders who speak out against homosexuality.
Predictably, these fears proved to be groundless. Of course, anyone who knew about how hate crime laws actually work could have told them this, because criticizing homosexuality is not, never has been, and never will be, a crime.
After all, hate crime laws that cover crimes motivated by race have been around, in various forms, for decades. Yet groups such as the KKK and neo-Nazi organizations are still around (and, sadly, have shown signs of growing in recent years). I don’t like those groups, nor do I like homophobia. I do, however, love the fact that such groups are allowed to freely express their views, no matter how repugnant I find them.
And I would strongly oppose hate-crime laws if I believed, even for a second, that they would have any impact on our constitutional right to free speech.
However, I believe that crimes motivated by something as irrational as hatred are particularly egregious, and should be subject to heightened punishment. And it’s not as if there isn’t precedent for enhancing the punishment for certain crimes based on their motivation. For example, in every state, murder is illegal (obviously). However, many states have heightened penalties for certain types of murder. For example, in states that have capital punishment, a murder committed primarily for financial gain (such as contract-killing) is often one of the aggravating factors that can make a homicide eligible for the death penalty.
Now, some would say that we shouldn’t care why a particular crime was committed. Rather, we should simply focus on the result of the criminal’s actions when considering a punishment. This, in my view, is a terribly shallow view of culpability and justice. If criminal punishment is, at least in part, about casting moral blame onto the perpetrators of criminal acts, we should look at their actual culpability. And a person’s mental state when committing a crime is obviously an element of that.