A bill in Kansas proposes to toughen penalties for hate crimes, thereby judging people on their thoughts and beliefs rather on their actions.
When a person commits a crime against another, the crime itself ought to be enough to earn the criminal a trip to prison. What the criminal was thinking, or even saying, at the moment ought not to be relevant in determining the severity of punishment or whether a crime was committed. That’s because in America we have the right to free speech, even hateful speech. We do not have, of course, the right to harm others, but speech shouldn’t count in reckoning harm.
Kansas has hate crime laws that allow the motivation of the criminal to be considered as an aggravating factor in determining sentences. But proposed legislation, Senate Bill 1, seeks to mandatorily double sentences if hateful motives are suspected. The relevant part of the bill follows:
(w) If the trier of fact makes a finding that an offender’s crime was motivated entirely or in part by the race, color, religion, ethnicity, national origin or sexual orientation of the victim or the crime was motivated by the offender’s belief or perception, entirely or in part, of the race, color, religion, ethnicity, national origin or sexual orientation of the victim, whether or not the offender’s belief or perception was correct, the sentence for such offender shall be as follows:
(1) If the underlying crime of conviction carries a presumptive term of imprisonment, the sentence shall be double the maximum duration of the presumptive imprisonment term;
If this bill becomes law, courts and juries will be asked to look into the heart of criminals, and if persuaded that even a sliver of motivation was due to something mentioned in the law, the criminal could face a sentence of double length.
We ought not to punish people for their thoughts and opinions. Punish them for actual criminal violence. That should be enough.
Even though hate crime laws seem to be of noble intent, the serve to perpetuate unequal protection before the law, and make bigotry an institution. In 1992 Jacob Sullum explained in Reason Magazine:
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But the promise of a liberal democracy is that members of minority groups will be protected from aggression, just like everyone else. If someone wrongs a Jew, or a black, he will be punished just as severely as if he had wronged a Christian or a white-and his motivation, whether bigotry, greed, or simple viciousness, won’t matter in either case. You correct unequal protection by making it equal, not by reversing it.
By punishing opinions, hate-crime laws institutionalize the very bigotry they seek to prevent: They treat some individuals as second-class citizens simply because of the ideas they hold. And they treat some targets, such as Catholic churches, as more important than others, such as abortion clinics (leading, of course, to the charge that vandalizing an abortion clinic is a hate crime against women). Like affirmative action, hate-crime laws enforce a double standard in the name of treating individuals equally.