The Return of the Thought Police

"Hate crime" legislation is an assault on civil liberties.

By Wendy Kaminer
Sunday, October 28, 2007 12:01 a.m.

I mean no disregard for the sufferings of crime victims when I say we should be wary of laws named after them. However well-intentioned, penal laws that memorialize victims deter reasoned debate about the rights of the accused. They rely on emotional blackmail: Oppose a law named for a murdered child, and you seem to insult her memory and exacerbate her parents' grief.

The Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act is no exception to this rule. By invoking memories of University of Wyoming student Matthew Shepard's brutal 1998 slaying, it makes a sentimental bid for expanded federal hate-crime legislation covering violent crimes motivated by a victim's sexual orientation or "gender identity," as well as race, sex, religion, ethnicity or disability.

Its prospects are dimmed by the threat of a presidential veto, but last month the Matthew Shepard Act was attached to the Defense Appropriations Bill by a 60-vote majority in the Senate; a companion bill passed the House (with the support of 212 Democrats and 25 Republicans.) Naturally, the bill enjoys the enthusiastic support of civil-rights groups, including the historically civil libertarian American Civil Liberties Union.

The ACLU has withheld support from hate-crime legislation in the past but wholeheartedly embraces this bill, which applies only to acts of violence and has been carefully drafted to avoid criminalizing pure speech: It provides that evidence of a defendant's hateful speech or associations are only admissible at trial if they "specifically relate" to the offense charged. In other words, speech could be offered as evidence that a violent act was motivated by bias, but it would not be a crime in itself.

Still, distinguishing hateful bias crimes from other hateful acts of violence punishes ideas and expression, no matter how scrupulously the legislation is crafted. When someone convicted of assaulting one woman is subject to an enhanced prison sentence or a more vigorous prosecution because his assault was motivated by a hateful belief in the inherent inferiority of all women, then he is being punished for his thoughts as well as his conduct.


While motive or state of mind are routinely considered in criminal cases (as mitigating or aggravating factors,) ideology is not routinely invoked in determining the seriousness of an alleged crime. Hate crime legislation, however, is expressly designed to punish particular thoughts or ideas.

Its advocates argue that hate crimes demand differential treatment because they are crimes against communities, not just individuals. Hate crimes "are more serious than a normal assault because they target not just an individual, but an entire group of people," New York Rep. Jerrold Nadler asserts. So, without directly criminalizing speech, the proposed Matthew Shepard Act (like other hate-crime laws) does effectively and intentionally criminalize bias, when bias is shown to bear a direct relationship to a violent crime.

It's not surprising that civil-rights advocates concerned with what they view as epidemics of unaddressed violence against particular, presumptively vulnerable groups support the criminalization of bias. Civil libertarians, however, ought to be more sensitive to the creation of thought crimes--even when "bad" thoughts are only punished in the course of punishing bad acts. Free-speech advocates who believe that misogynist pornography should be legal, for example, should question whether evidence of a defendant's porn collection should be introduced at a sexual-assault trial in order to convict him of a hate crime. It's sophistry to suggest that in such a case the defendant would suffer punishment only for his conduct, and not his beliefs.

But freedom of thought is not the only liberty at stake in this debate. The Matthew Shepard Act would also subject defendants to double jeopardy for a single offense. The bill expressly states that defendants prosecuted in state court may be prosecuted for the same crime in federal court, if federal officials determine that "the verdict or sentence obtained pursuant to state charges left demonstrably unvindicated the federal interest in eradicating bias-motivated violence."

The constitutionality of this provision is not in question. The Supreme Court has long allowed state and federal authorities to conduct separate trials for the same offense, and reasonable people will differ as to the justice of this, especially when the state has demonstrated an inability or unwillingness to prosecute fairly a horrendous crime.

Civil rights-era cases offer the best argument for dual prosecutions by dual sovereigns: In 1965, federal prosecutors convicted Klan member Collie LeRoy Wilkins of a civil-rights crime in the killing of activist Viola Liuzzo after his acquittal in Alabama state court. More recently, in a controversial 1993 case, federal prosecutors convicted two police officers of beating Los Angeles motorist Rodney King (and violating his civil rights) after their acquittal by the state of California.

Still, exceptions to double jeopardy remain controversial for civil libertarians: The ACLU officially opposes dual prosecutions, stating, "There should be no exception to double jeopardy principles simply because the same offense may be prosecuted by two different sovereigns . . . even important federal interests do not justify balancing away a defendant's rights under the double jeopardy clause."

This policy was briefly suspended by the ACLU board in 1992, in response to the Rodney King case, but it was reinstated in 1993 after an impassioned debate. The ACLU's unequivocal endorsement of the Matthew Shepard Act violates its own stated, civil-liberties principles (which will perhaps be amended soon).

Is it necessary or fair to expand federal criminal jurisdiction to allow for dual federal and state prosecutions of alleged hate crimes? Arguably--if strong empirical evidence demonstrates that states are generally unwilling or unable to prosecute these crimes. Otherwise federal hate-crime legislation addresses an illusory threat to civil rights, while it exacerbates an actual crisis for civil liberty.

The continuing expansion of federal criminal jurisdiction has given federal law enforcement officials unprecedented power over each of us. As Gene Healy of the Cato Institute has observed, the federal criminal code is so vast and comprehensive that it enables prosecutors to "pick targets they think they should get rather than offenses that need to be prosecuted." Mr. Healy estimates that about 4,000 crimes are "scattered throughout the tens of thousands of pages of the United States code," stressing that the exact increase in federal crimes has been difficult to track. One frequently cited 1999 study by the American Bar Association noted that 40% of all federal criminal laws enacted after the Civil War dated back only to 1970.


While libertarians have mounted consistent, principled resistance to this expansion of federal criminal jurisdiction (and Cato offered thoughtful testimony against the federal hate-crime bill), generally both liberals and conservatives have adopted result-oriented approaches to federalizing crime: Liberals who favor decriminalizing marijuana possession oppose federal laws prohibiting it, which conservative anti-drug warriors support. Liberal gay rights advocates support the federalization of bias crimes against gay people, which conservatives wary of expanding gay rights oppose.

This may look like pragmatism, but it's more like shortsightedness. Expansions of federal criminal jurisdiction are often responses to concerns of the moment--from carjacking and cockfighting to child abuse and juvenile crime--that can be addressed adequately by the states (especially with federal incentives). The necessity of many federal penal laws is more often presumed than demonstrated, and outweighed by the cumulative threat that this growing body of law poses to liberty.

Matthew Shepard's killers were convicted of homicide and kidnapping by the state of Wyoming and are serving consecutive life sentences. His torture and murder remain awful to contemplate, but civil libertarians ought not be squeamish about questioning the consequences of the law that would bear his name.