The thinking behind making hate crimes a distinct but additional offense is that the violence perpetrated extends to more than just the direct victim. Criminals who commit act of violence because of a victim’s race, religion or sex attempt to have an impact on the wider group though the direct victim may be a single person.
But because of the political nature of of which groups are to be considered victims, the idea is fraught with unintended and undesirable consequences. And underlying this intention is the invasion of legal judgement into a person’s thought. If I physically and viciously attack a gay or a minority it is not always a hate crime. It can only be discerned to be a hate crime if I have spoken or written of my disdain for their race or sexual preference or otherwise somehow indicated their ethnic, religious, or sexual status was the expressed reason for my attack. As Jeff Jacoby writes in On trial at Rutgers: hate crime or thought crime?:
But even if the worst rumors were true, that wouldn’t change the great flaw of hate crime prosecutions. The criminal justice system should not concern itself with bad thoughts and pernicious attitudes, but with bad behavior and pernicious harms. The man who breaks your jaw because you are black or gay or Hindu should be punished as severely as the man who breaks it because you are socialist or a Yankees fan — or just because he’s a thug seeking a thrill.
The flood of hate crime laws passed in recent years has added to prosecutors’ leverage, but has it made society more just? “Proponents of the original bias crime laws said they meant to go after murderous plots by members of . . . hard-core hate groups,’’ writes New York University law professor James Jacobs. “Now, bias crime prosecutions most often involve young defendants, frequently mixed-up teenagers, who commit low-level offenses like criminal mischief and simple assault, typically escalating from spontaneous altercations.’’
Tyler Clementi’s suicide was a tragedy. But threatening a 10-year sentence for his roommate’s odious stunt with a webcam has far more to do with politics than with justice. And it reminds us, or should, that prosecuting people for their opinions is not the hallmark of a free society.