Hate Crimes: A Legal Fallacy

Recently, you may have seen in the news the story of a New York City man charged with a hate crime after robbing a Mexican man. Apparently, prosecutors are charging the man with a hate crime because he used a racial slur during the robbery.

Also, fairly recently, in Alaska, a gay pride float was torched, and the perpetrator has yet to be apprehended. Local officials and residents say they fear it was a hate crime.

What is a hate crime? I was hoping you could tell me because I can’t figure it out. One local police department defines a hate crime as:

“A criminal offense committed against a person or property that is motivated, in whole or in part, by the offender's bias against a race, color, ethnicity, national origin, sex, gender identity or expression, sexual orientation, disability, age or religion.”

Criminal law seeks to punish acts that are deemed inherently harmful. Intent to commit an act is almost always at issue in a criminal case, with few exceptions. That is, we ask WHAT someone meant to do. Contrapositively, the criminal law never examines motive. In other words, WHY someone did something. Understanding the difference between intent and motive is crucial to recognizing the legal fallacy of a hate crime.

One must also understand why we never consider motive in criminal law. The answer is simple: the First Amendment protects our freedom of expression and implicitly protects our non-expression (i.e., thoughts). It protects the use of offensive rhetoric. Allowing government to punish our thought process as well as expression of our opinions would be to give up the most basic of our freedoms.

Further, the criminal law provides a legitimate remedy in all hate crimes cases. In the two examples given at the top of this article, the remedies would be robbery and malicious destruction of property. So, it’s not as if the victim is left without recourse if hate crime statutes do not exist.

In addition, hate crime legislation gives government the discretion to decide which groups of people are worthy of this additional protection and those who are not, thereby violating the Equal Protection Clause of the Fourteenth Amendment. It allows for the arbitrary perpetuation of compartmentalization of society into opposing groups of people rather than encouraging citizens to live as a unified society.

I understand that politicians want to score voter points by claiming to protect certain groups of voters by criminalizing the thought process of others. And, I also understand that interest groups representing certain groups seek to gain status as “victim” in an effort to advance their cause. These voters and interest groups have the freedom to express their views without consequence or consideration of motive—the very reason why hate crime statutes are a legal fallacy.

I really hope the government never hears what I say to Yankees fans or finds out what I think of Steelers fans, or I may be behind bars for a while.