As always, prior to reading this post, please review my disclaimer by clicking on the link above, or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
I am not a criminal law attorney, nor do I seek criminal clients, but I am a lawyer who cares about the law. This is not the post I planned to write today, but it's one I feel compelled to write after watching in horror the aftermath of what happened in Charleston. The brutal hatred we've witnessed there is, to put it mildly, depressing, difficult to swallow. That being said, I don't pretend I have anything new or different or special to say, but I do want to talk about the law.
You see, this incident has caused a topic to come up that seems to come up every time there's an attack somewhere motivated by hate, or an effort to target hate legislatively - the topic of hate crimes. All too often I hear people who don't understand hate crimes laws asking questions like "how can you criminalize hate?" "Isn't this just criminalizing thought?" "What about free speech?" This ignorance of how hate crime laws work has become so prevalent that, when there was a debate about adding sexual orientation to the hate crimes laws, people started warning of the mass arrest of Christian preachers. Of course this was nonsense, and I'm aware of no Christian preachers arrested for preaching intolerance in the 6 years since the law passed.
So, what are hate crimes? How do they work? Most importantly, why don't they violate the constitution?
The first thing to understand about hate crime laws is that they do not criminalize anything new. There is literally nothing you can do to another person where, if you were not motivated by hate, the action would be legal, but if you were motivated by hate, the action would be illegal. This is a critical step that many people who are fearful of hate crimes miss. So, since it's important, let me repeat it: if something is not a crime if done without bigotry, it is not a hate crime when done with bigotry. So, a preacher commits no crime when preaching negatively about anyone, so if he does it about homosexuals and homosexual living, he is still not committing a hate crime. If the preacher tells his church members, however, to go and hunt down homosexuals and kill them, then he's committing a hate crime, but if he was just picking someone random from the community to hunt down and kill for, say, being rude, he's still committing a crime (incitement). There is literally nothing you can do to get charged with a hate crime that would not still get you charged with a crime if your action was not motivated by hate.
So, with that being the case, what do hate crimes do? Well, they do two things. First, federal hate crimes federalize the conduct. This is important because it allows prosecutors who fear that they cannot get an impartial jury in a particular community to move the trial further away than state prosecutors are usually able to do. Second, both federal and state hate crimes increase the severity of the penalty applied for the crime. While a regular crime might carry a sentence of up to 5 years, when the crime is motivated by hate, it might be up to 10 years.
So, why the sentencing aspect? Why should we punish people extra just because they were motivated by hate? Well, this gets to the broader question of what the purpose of jail time is to begin with. Most people ascribe four purposes to jail sentences - deterrence, punishing the offender, rehabilitating the offender, and protecting society from the offender. I would argue that hate crimes fit logically into the latter two purposes. Someone who is motivated by hate will take longer to rehabilitate (if rehabilitation is possible) than someone who is not. Moreover, someone who is motivated by hate (rather than a desire to harm a specific individual, for example) is a greater threat to society and has a greater likelihood of recidivism, so keeping them away from society for longer to protect society from them makes more sense.
So, in short, hate crimes laws fundamentally work by protecting the judicial process from potential undue local influences, as well as enhancing the penalties applied to offenders so as to allow more time to rehabilitate the offenders, and more time to protect society at large from the offenders. They do not seek to, nor do they in fact, regulate thought or speech. Moreover, they create no new crimes of their own - only applying to conduct that is already criminal, whether motivated by hate or not.
With that explanation it is my hope that more people understand what hate crimes laws are, what they seek to do, and why they play an important role in our country's continuing efforts to rid itself of the scourge of bigotry.
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