Hate Crime Laws Punish Thought, Not Crime

October 28, 1998 In the rush to extend the Hate Crimes Sentencing Enhancement Act, common sense has been left behind. First, this is not an epidemic, much less a significant problem in society. A recent book on Hate Crimes: Criminal Law and Identity Politics documents "there is less prejudice-motivated violence against minority groups than in many earlier periods of American history." And the latest FBI reports show 15 bias-related murders in 1992 and 13 in 1994. This is hardly a worsening epidemic.

In the midst of the current debate, someone needs to remind legislators that America in 1998 is not the old South, where laws were not always enforced to protect minorities. There simply is no evidence that states are failing to prosecute crimes because the victim is black, Jewish, or even homosexual. And there is no evidence that juries are letting criminals off because their victim was a member of a particular minority or sexual persuasion.

But the greatest objection to hate crime laws is that they criminalize thought rather than conduct. Hate crimes essentially punish thought crimes. They punish people because of their point of view. Criminal prosecutions delve into more than the defendant's intent; they inquire into the opinions about his or her victim. And trying to distinguish between opinions and prejudice is often difficult.

Justice Oliver Wendell Holmes said, "If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for thought we hate."

We may not like what some people think, but we should not have laws on the books to punish thought crimes. We already have laws on the books to punish what a person does. Those laws are sufficient to punish those who commit crimes of hate.

I'm Kerby Anderson of Probe Ministries, and that's my opinion.