When Rutgers University freshman Dharun Ravi set up a video camera to spy on his roommate Tyler Clementi having sex with another man, it was unclear whether Ravi was acting out of homophobic malice or merely poor taste with a tinge of troublemaking.

I do believe it is the province of parents, schools, the media, government and all of our social institutions to discourage hatred and bias, whether because of race, gender, sexuality or other discriminated-against differences.

But I do not believe our legal institutions should care one bit.

The assumption is that enhanced criminal penalties under hate crimes laws act as a deterrent — not only to discourage potential perpetrators from committing crimes but from doing so with a particularly biased malice of forethought.


That’s a lovely idea.

It just happens to be wrong.  

First of all, we know that the deterrence logic has not worked in other penalty enhancements, namely the death penalty.

States that do not have the death penalty have had consistently lower murder rates over the last 20 years than states that have the death penalty.

In one national poll, police chiefs ranked the death penalty dead last among potential crime fighting tools.  Instead, the police chiefs prioritized hiring more police officers, reducing drug use and creating a better economy with more jobs as far more effective at curbing violence than the death penalty.  

Hate crimes laws generally include information gathering and reporting mechanisms on bias crimes that are positive and, I believe, should be preserved. Still, because such data is relatively new (for instance, the federal government only started collecting data on anti-gay crimes in 2009 under a law signed by President Obama), it’s hard to calculate the potential deterrence effect for hate crimes penalty enhancements — but it’s not hard to imagine the effect would be less significant than the non-existent deterrence effect of the death penalty.

Conservatives have for decades opposed hate crimes laws as some sort of Trojan horse for “special treatment” of minority groups.

While I think it takes a special kind of callous paranoia to believe that laws intending to protect people of color, women, gay folks and religious minorities from life-threatening violence are somehow bestowing unfair advantage on those groups, here is where conservatives and I can agree at least on the outcome.

Similarly, many libertarians oppose hate crime laws for the simple reason that they extend the putative power of the state specifically and the power of the government in general.

While I think the government does have a positive role to play in monitoring and discouraging bias crime, I don’t believe we should extend the power of the criminal justice system. After all, progressives like myself have for decades decried the fact that people of color are disproportionately targeted by the criminal justice system.

Yes, blacks and Latinos disproportionately commit certain crimes in our country — but that fact in no way accounts for nor excuses the even higher rate with which people of color are arrested and incarcerated.

According to studies, whites and blacks use and sell drugs with roughly the same frequency. While blacks comprise only 12 percent of the population and at most 14 percent of drug users, they make up 34 percent of drug arrests and 45 percent of those serving time for drug offenses in state prisons.   In 2003, black men were nearly 12 times more likely to be sent to prison for a drug offense than similarly situated white men.  

Similar data show that lesbian, gay, bisexual and transgender individuals may also be disproportionately incarcerated, especially in the case of LGBT youth.

Anyone who aims for a police and prison system in particular and a society in general that treats all people equally should be troubled by these data (and volumes more like them) and equally troubled by the notion of enhancing the reach and penalty powers of a criminal justice system that has shown itself to be repeatedly unequal in its impact.

In fact, hate crimes laws have almost as often been used against people of color and gay folks than used to help them.

For instance, anti-white hate crimes repeatedly constitute the second highest category of reported crimes in the FBI’s annual hate crimes statistics.  In one case in Massachusetts, three lesbians faced hate crimes charges for allegedly attacking a gay man.

The point is, hate crimes laws were intended to protect communities that are particularly vulnerable to violence — not be wielded by any community toward any other community to trump up charges.

Furthermore, the fact that hate crimes laws ostensibly criminalize what is in our hearts and minds falsely suggests that the rest of our minds are pure and bias free.  In a column opposing hate crimes enhancements, New York Times columnist and former executive editor Bill Keller wrote:

[O]ur founders believed that democracy requires great latitude for dissent, America, virtually alone in the developed world, protects the right to speak or publish the most odious points of view. And yet the government is authorized to punish you for thinking those vile things, if you think them in the course of committing a crime.

I fundamentally believe that the way to root out bias crime in America and bias in general is by acknowledging all of our inherent prejudices and judgments and dealing with them openly.

In that case, hate crimes laws create a sort of false comfort that suggests we are not infected by nor furthering bias unless we’re blurting out epithets or scrawling hate screeds. That’s a dangerous and ultimately defeatist message to send to a society that has much work to do in rooting out discrimination from every crevice of our existence, not just in crime.

Longer prison sentences actually increase the likelihood of recidivism. And I imagine those convicted under hate crimes laws rotting away in their enhanced sentences, stewing extra-long in whatever biases landed them there — merely exacerbating their hatred, not solving it.

But the larger issue is that we have a choice in how we address breakdowns of our social fabric, whether in terms of crime or bias or the intersection of both.

We can respond in ways that build bridges between communities, that heal the anger and fear and trauma that blacken our hearts and lessen the distance between all of us as we seek true equality and fairness.

Or we can choose to reinforce those distances by relying on the structures and institutions that divide and punish, and which have been repeatedly shown to prey and worsen our habits of discrimination and make us more fractured, not more safe.  

I have faith in our ability to address injustice without compounding it.