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    I consider his support of hate crimes one of Michael’s quirks. (I do agree with the push to prevent “gay panic” defenses from succeeding at scoring reduced sentences, but that doesn’t happen all that often.) He’s clearly given it a lot of thought, but I still think his conclusions are wrong.

    So when someone says, “All crimes are hate crimes” a lot of us accept it without thinking about it.

    All crimes are not hate crimes. And all dangerous criminals are not equally dangerous.

    People argue that we shouldn’t tack on extra time for what a person “thinks.” But we already do that. An obvious example is murder. The sentencing for First degree murder is largely based on pre-meditation, or what the perpetrator was thinking at the time of the murder. Second-degree murder has a shorter sentence because, basically, less thought was put into the crime. Manslaughter gets a lesser sentence because a person acted “out of passion.” The sentencing for each of these varying degrees of homicide is based in large part on what the murderer was thinking at the time of the act.

    I happen to think “all crimes are hate crimes” is a stupid, slushy formulation, but I think Michael’s being equally slushy about types of “thought.” What matters to society in distinguishing degrees of murder isn’t just how long and intensely the perpetrator had it in for his victim; it’s whether he’s likely to do it again. All other things being equal, the sort of person who’s capable of coolly and rationally planning to whack someone is more of a danger than the sort of person who just cracked when pushed too far.

    One could imagine similar degrees of hate crimes. You could have first degree (has been denouncing queers publicly since elementary school and is on record as looking for the opportunity to whack one), second degree (suddenly realized when he saw that dyke crossing the street what a menace to the social order she was and flipped out), and third degree (uh…I guess that’s feeling free to be more reckless in a gay neighborhood out of an unarticulated feeling that we’re expendable?). But that’s not the way proponents of hate crimes legislation usually talk about “thought.”

    To my knowledge, the laws that have actually been enacted provide for penalty enhancement: if you commit an existing crime, you can get added punishment if you were found to be motivated by bias against a particular pre-approved group. The idea is that you’ve done harm that extends beyond the person or persons you directly victimized; you’ve by extension done harm to the whole category. The courts–I think in every case, though I could be wrong–have ruled that such laws don’t violate equal protection or due process.

    So what’s the problem? For one thing, the concept of group harm is tricky to negotiate. For another thing, it’s difficult to know what someone’s thinking. Michael gives a hypothetical example:

    In order to understand a hate crime, you have to get inside the mind of the characters. Joe hates blacks. Joe hates faggots. Joe hates Latinos. When the guy at the bar has dealt with the man who spilled his drink, he will probably be finished with it. He’ll get a fine or a short jail term. Most likely, he’ll consider how stupid it was the next time someone touches his drink.

    Is a simple fine or a night in jail going to make Joe think about how stupid this hatred is and how much trouble acting on it can get him into? Doubtful. Joe will sit in jail and stew about how some queer got him locked up. When Joe gets out, who is going to pay for his time in jail? Is it going to be the same black guy, or gay man, or Latino that he beat up in the first place? This is where the difference is. To Joe, it doesn’t matter. To him, one fag is as good as another.

    Sounds good while you’re reading through it, but is it corroborated by real life? It’s possible to imagine someone who got into an out-of-character barfight being all contrite and realizing that, hell, he doesn’t really have anything against the drink-spillers of the world, and going away and never doing anything like that again. But it seems equally plausible to figure that the sort of guy who would deck someone for spilling his drink would also get into other dustups–someone took “his” parking space at the supermarket, or complained that his music was too loud, or whatever–because he has little self-control and deals with problems that way. America has no shortage of hotheads who are the despair of their local police, after all. Perhaps there’s research to indicate that the degree of viciousness or the recidivism rate for bias-motivated criminals is higher than that for garden-variety troublemakers, but if so, I’ve never seen it publicized.

    Of course, the theory also is that hate crimes hurt the whole group. Here‘s the Anti-Defamation League:

    Hate crimes demand a priority response because of their special emotional and psychological impact on the victim and the victim’s community. The damage done by hate crimes cannot be measured solely in terms of physical injury or dollars and cents. Hate crimes may effectively intimidate other members of the victim’s community, leaving them feeling isolated, vulnerable and unprotected by the law. By making members of minority communities fearful, angry and suspicious of other groups — and of the power structure that is supposed to protect them — these incidents can damage the fabric of our society and fragment communities.

    Thinking just in terms of pragmatics, do gays really think it’s wise to buy into this? That you can intimidate the whole lot of us by beating up a single gay man on the way home from the clubs? That we see ourselves as outside mainstream social and legal institutions (a.k.a. “the power structure”)? And wouldn’t the tacking on of gay-specific jail time or fines be likely to make Joe even more resentful of homosexuals than he would if he were just charged with assault?

    If the police are responding listlessly to crimes in gay neighborhoods, then residents should be angry; but that doesn’t mean that hate crimes provisions are the only possible response. There are neighborhood crime watches, there’s the Pink Pistols. Anger can galvanize you into action, not send you into a spiral of fear.

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