March/April NFL Topic Background Paper

By Heidi Sommer

Within the topic of hate crimes in America, controversy has arisen over the proper application of sentencing and justice after such crimes have been committed. Further discrepancy can ensue over the complexity of the two categories under which hate crime types and punishment typically fall. Ultimately one is left with the choice whether or not to view crime as crime or whether to weigh other factors and prejudices in the balance.

Hate crimes are typically divided into two separate categories based on the intention of the person committing the crime. The first model is termed the discriminatory selection model. Here, victim selection based upon vulnerability would be punished the same as a situation where a victim was selected to express hatred. In other words, the discriminatory selection model does not distinguish between symbolic and actuarial crimes. It is inclusive of both kinds and punishes both equally. It is also the most popular form of the law, with roughly two-thirds of the state laws and the existing and proposed federal laws based upon it.

The second model, in sharp contrast, is the racial animus model which focuses attention on the reason for the discriminatory selection of victims. This approach assumes that the motivation for the selection of a victim is less instrumental and more expressive; perpetrators use the act of victimization to express animus toward the category of persons the victim represents (i.e., a minority, a homosexual, a disabled person, etc.). As such, the racial animus model follows the distinction between actuarial and symbolic crimes by defining the former as beyond the domain of hate crime law and the latter within the desirable domain of hate crime law.  Ultimately, a criminal is punished more harshly because his acts were committed out of hatred for and with an intent to demonstrate hatred to a certain group most typically a minority group of some type.

Those who support the latter model respond that a hate crime is a worse crime, because of the greater moral wrong and that harsher action need be taken. Immanuel Kant notes that crimes are not just violations against individuals, but against the community. The greater community will indeed suffer from such violations. The fabric of society will be undermined as racial or sexual prejudice is allowed to go unpunished.  Many believe that all Americans have a stake in an effective response to violent bigotry. These people believe that hate crimes demand a priority response because of their special emotional and psychological impact on the victim and the victim's community. Further they hold that 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, these incidents can damage the fabric of our society and fragment communities.

The greater issue at stake here is whether or not a crime is more than a crime based on intent. In opposing from to the previous view and from a different moral standpoint it would seem that a crime is a crime no matter what the intent just as deliberate murder is murder no matter who is killed and for what reason. Although it would seem preferable to make a statement about the moral wrong of prejudice and hate crimes, it seems fundamentally unjust to heighten punishment for a person's internal beliefs. They should receive no more and no less a punishment for their crime based on their particular feelings to a certain group. Otherwise speculation and other uncertainties will be brought into the criminal justice system thus making it unstable and unjust. Immanuel Kant held that, "Juridical Punishment can never be administered merely as a means for promoting another Good either with regard to the Criminal himself or to Civil Society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a Crime."

In Madison, Wisconsin, a recovered homosexual who had left the "gay" lifestyle to start a family got into a heated discussion with an open homosexual about homosexuality at a gas station. The ex-"gay" man, David Ott, was holding his child in his arms during the entire incident, and neither man touched the other. The homosexual activist later told police he had felt threatened by Ott, and local prosecutors charged the man with "disorderly conduct" with a "hate crimes" enhancement. The "hate crime" aspect, stemming from Ott's belief that homosexuality is morally wrong, raised the potential fine from $1,000 to $10,000, and jail time went up from a possible 90 days to one year. Fearing the possibility of substantial jail time, Ott settled, and received 50 hours of community service plus a mandatory attendance at "tolerance" sessions conducted by lesbians at the University of Wisconsin at Madison. A ground rule for the session was the premise that homosexual behavior is not immoral. The entire process cost Ott almost $7,000 in legal fees.

Views in opposition of enhancements in hate crime law charge that hate crime and hate speech rules amount to an erosion of First Amendment guarantees of freedom of religion, free speech, and freedom of press. In particular, they object to rules or laws which equate condemnation of sin with prejudice.  Opponents of hate crime legislation complain about its attempts to legitimize certain lifestyles by declaring them to be protected by law, and to chill the free speech that criticizes those lifestyles. Punishment for the crime alone should suffice in bringing about justice and retribution while setting an example for other similar perpetrators.