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The Folly of Hate-Crime Laws

By Richard Cohen
Tuesday, August 4, 2009

James von Brunn, who is alleged to have opened fire and killed a guard at the Holocaust Memorial Museum, is apparently a consummate bigot. His former wife said that his hatred of blacks and Jews "ate him alive like a cancer," so it might seem appropriate that in addition to having been indicted last week for murder and gun-law violations, he was also charged with hate crimes. At age 89, he proves that you are never too old to hate.

He also proves the stupidity of hate-crime laws. A prime justification for such laws is that some crimes really affect a class of people. The hate-crimes bill recently passed by the Senate puts it this way: "A prominent characteristic of a violent crime motivated by bias is that it devastates not just the actual victim . . . but frequently savages the community sharing the traits that caused the victim to be selected." No doubt. But how is this crime different from most other crimes?

First, let us consider the question of which "community" von Brunn was allegedly attempting to devastate. He rushed the Holocaust museum, which memorializes the 6 million Jews killed by the Nazis and their enablers. There could be no more poignant symbol for the Jewish community. Yet von Brunn killed not a Jew but an African American -- security guard Stephen Tyrone Johns.

So which community was affected by this weird, virtually suicidal act? Was it the Jewish community or the black community? Since von Brunn hated both, you could argue that it does not matter. But since I would guess that neither community now gives the incident much thought, the answer might well be "neither one." So what is the point of piling on hate crimes to what von Brunn has allegedly done? Beats me. He already faces -- at age 89, remember -- a life sentence and, possibly, the death penalty.

The real purpose of hate-crime laws is to reassure politically significant groups -- blacks, Hispanics, Jews, gays, etc. -- that someone cares about them and takes their fears seriously. That's nice. It does not change the fact, though, that what's being punished is thought or speech. Johns is dead no matter what von Brunn believes. The penalty for murder is severe, so it's not as if the crime is not being punished. The added "late hit" of a hate crime is without any real consequence, except as a precedent for the punishment of belief or speech. Slippery slopes are supposedly all around us, I know, but this one is the real McCoy.

Let us assume that the "community" is really affected by what we call a hate crime. I am Jewish. But even with von Brunn's attack, I am more affected by a mugging in my neighborhood that might keep me from taking a walk at night than I am by a shooting at the Holocaust museum. If there's a murder in a park, I'll stay out of it for months. If there's a rape, women will stay out of the park. If there's another and another, women will know that a real hater is loose. Rape, though, is not a hate crime. Why not?

I doubt that any group of drunken toughs is going to hesitate in their pummeling of a gay individual or an African American or a Jew on account of it being a hate crime. If they are not already deterred by the conventional penalties -- prison, etc. -- then why would additional penalties deter them? And if, in fact, they kept their mouths shut, refrained from the N-word or the F-word or the K-word, and simply made the beating or the killing seem one triggered by dissing or some other reason, then they would not be accused of hate -- merely of murder or some such trifle. If, though, they gave vent to their thoughts, they would be in for real trouble.

For the most part, hate-crime legislation is just a sop for politically influential interest groups -- yet another area in which liberals, traditionally sensitive to civil liberties issues, have chosen to mollify an entire population at the expense of the individual and endorse discredited reasoning about deterrence.

In von Brunn's case, the hate-crime counts are an obscenity. To suggest that the effects of this attack were felt only by the Jewish or the black communities -- and not, for instance, by your average Washington tourist -- ghettoizes both its real and purported victims. It's a consequence that von Brunn himself might applaud.

cohenr@washpost.com

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