Discriminating Doesn’t Reduce Discrimination

America has long had some sort of race problem. But the specific nature of the race problem has changed over the years.

Once upon a time the race problem was slavery, followed by Jim Crow laws and other forms of institutionalized racism. But now we have an institutionalized race problem of a different sort. The “opposite” problem, you might call it: We’ve become oversensitive to anything that smacks of racism. And few race-related laws enacted in recent decades are dumber and more offensive to a free society than hate-crimes laws, which punish a perpetrator of a crime motivated by race or other class-based hatred more harshly than those who commit the same crime with a different motivation.

If a perpetrator attacks a victim based on his race or religion, it is indeed a heinous act. But is it more heinous than a perpetrator attacking a victim because he desired his money or hated him for a personal reason? Or simply in a random act of violence?

Such crimes are no less reprehensible, perpetrators of such crimes are no less evil, and victims of such crimes should be no less protected, than crimes in which the motivation was class-based hatred.

Are we made safer by having politicians decide what sort of motivation — for an equally brutal attack — is worse than another? The political definition of “hatred” never stops at the obvious racial categorizations, such as skin color or religion. Inevitably, it’s extended to gender and orientation. And age. And don’t be surprised if obesity is thrown in there too. And “beauty” will be sure to follow. Assault an innocent victim, and you may be sent to prison. But assault an innocent victim while shouting “Jew,” “black,” “fatso,” or “ugly,” and you’re now a politically designated “hater” who may be sent to prison for twice as long.

Legal theorists have offered various justifications for why a criminal justice system has the desire and/or right to imprison criminals (or punish them in other ways), but none of these justifications can really rationalize a longer prison sentence for perpetrators of hate crimes than for perpetrators of other crimes.

One common justification for imprisonment is deterrence — to “disincentivize” crime. Deterrence is sub-categorized as specific deterrence and general deterrence; that is, we impose a particular prison sentence for a particular crime to deter the perpetrator and also society at large from committing that crime.

Neither deterrence justification offers any acceptable basis for imposing a harsher prison sentence for a hate crime than for the same non-hate crime. Is there any reason why a would-be hater, or society at large, would require a stiffer prison sentence to be deterred from committing a hate crime than they would require to be deterred from committing the same action for a “non-hate” motivation?

Another justification for a prison sentence is prevention: to lock up the perpetrator simply to keep him off the streets, so he is prevented from committing further harm to the innocent. Once again, there is no acceptable reason for extended imprisonment of hate-crimes perpetrators: Why should we want to keep a race-motivated assaulter off the streets for any longer than, say, a personal-fight motivated assaulter, a spousal assaulter, or a mugging-motivated assaulter? Is a white man who has beaten a black man any more dangerous than a white man who has beaten his wife, or a black mugger who has beaten a black victim for her money?

The final justification for imprisonment is retribution, which we can understand as simply vengeance; we imprison a criminal to “get him back” for his crime, so to speak. Does this justification give us any right to imprison a hate-crime perpetrator for longer than a non-hate crime perpetrator who inflicted equal harm on his victim? I suppose your answer will depend upon how much you are obsessed by all things racial.

And ultimately, that’s the underlying motivation for hate-crimes legislation: the obsession over, and over-sensitivity to, anything racial. Hate-crimes laws — which essentially punish the criminal for his thoughts — immorally discriminate, supposedly in order to punish immoral discrimination.

While we will never completely rid ourselves of racists any more than we will rid ourselves of muggers, spouse-beaters, or interpersonal fighters, we can only rid ourselves of institutional discrimination if we truly apply equal justice under the law.