All crimes are hate crimes in a free society

Chuck Morse
BrookesNews.Com
Monday 22 October 2007

By nature, a crime against an individual or private property is an act of hatred and contempt. In our free society, the purpose of our system of justice is to mete out punishment appropriate to the crime committed. To quote Gilbert & Sullivan in The Mikado “To let the punishment fit the crime — The punishment fit the crime.”

In a totalitarian society a crime is defined as an act that runs contrary to the perceived interests of the dictator, an act that threatens state power. In such a society, punishment is meted out at the whim of the government which claims to be the legitimate source of power. Political crimes, such as crimes against speech and opinion, are the hallmark of a totalitarian state and run contrary to American traditions. Those who are deemed to be “politically incorrect” in such a society can be punished at will.

Historically, America, while recognizing the inherent right to free speech, has at the same time rightfully maintained a few carefully selected laws against the use of hateful symbols, such as swastikas and burning crosses. This is because these symbols have been consistently used to incite mass violence. Supreme Court Justice Oliver Wendell Holmes articulated this principle when he stated that free speech does not include the right to yell fire in a crowded theatre. The desecration of the American flag, I contend, should be added to these carefully selected laws as an act of extreme incitement and disrespect for a national symbol.

There is a movement in Congress today, sponsored by Massachusetts congressman Barney Frank, that seeks to expand this limited federal power by creating national laws against “hate crimes.” This would change our system of justice from one that is presently based on punishment for a criminal act to one that punishes motive based on arbitrary and subjective definitions. For the first time, our government would be assuming the political power to create criminal law. This would constitute an assumption by the Federal Government of legal powers that had traditionally resided with state and local governments.

Factors to be rightfully considered in the commission of a crime such as racism, homophobia, or any and all other categories of prejudice have been traditionally used as evidence in a trial. These factors go toward proving the motive of the alleged perpetrator and this is proper in a criminal proceeding.

There is a vast difference, however, between using bias as evidence in a criminal trial and criminalizing bias itself. While bias of all types should be vociferously condemned, to criminalize bias gives the government the power to decide what constitutes bias. As a free society, we should not travel down that road.