Mars had been following the trial on television, he would havernconcluded that, in America, racial bigotry is a more serious offensernthan murder.rnThe whole concept of a “hate crime” against a designatedrnracial or sexual minority reflects our obsession with motive asrnopposed to fact. The subjectivism of this approach is clear fromrnthe federal Hate Crimes Statistics Act (1990), which coversrn”crimes that manifested evidence of prejudice based on race,rnreligion, sexual orientation, or ethnicity, including where appropriaternthe crimes of murder, non-negligent manslaughter;rnforcible rape; aggravated assault, simple assault, intimidahon;rnarson; and destruction, damage or vandalism of property.” Althoughrnthe federal government has virtually defined the haterncrime, it is the states that have taken the lead on enforcement.rnWhen a hoodlum throws a rock through a window in Boston,rnwhat matters now is not so much the broken window in anrnapartment as the mental suffering of the inhabitant who hearsrnthe racial slur that accompanies the rock and the mental attitudernof the hooligan as he threw it. In current Massachusettsrnlaw, any damage to a person or property “for the purpose of intimidahonrnbecause of . . . race, color, religion, or nadonal origin”rncan result in two-and-a-half years in jail and a $5,000rnfine—stiff penalhes, potentially, for an act of petty vandalism.rnThe fact of vandalism is easy to determine, but it is notoriouslyrnhard to figure out a man’s motivation. Even a bigot mightrnhave complex personal motives for throwing a rock. If motivesrnare hard to determine, it is even harder to assess the effect of arnhate crime, particularly in a state like California whose penalrncode includes the infliction of emotional suffering on its list ofrnbias crimes. And yet, far from wanting to limit the scope of suchrnlaws, President Clinton—who has reasons for wanting to obscurernquestions of crime and punishment—has called for arnbroadening of their definition to include “crimes committedrnbecause of a victim’s sexual orientation, gender or disability.”rnMr. Clinton is apparently under the impression that, until recently,rnbigots were free to commit assault or vandalism uponrnhomosexuals and cripples. But even though such crimes arernpunished under existing laws, additional penalties are required,rnbecause hate crimes are intended to intimidate an entire “community.”rnHate crimes, then, are not to be judged by the practicalrndamage inflicted on an individual but as a kind of social poison;rnas Clinton puts it, “Violence motivated by prejudice andrnhatred . . . hurts us all.”rnThe only opposition to hate-crimes statutes (apart from thernopposition of organizations promoting hate) has come from civilrnlibertarians who misinterpret the First Amendment as givingrnthe federal government the power to guarantee free expression,rneven when a local community or private association (e.g., a collegernor labor union) has reason to restrict it. There is no constitiitionalrnright to be threatening and offensive, and if a predominantlyrnJewish community that includes holocaust survivorsrnchooses not to permit Nazis to stage an antisemitic demonstration,rnit is only by the wildest deconstruction that the Constitutionrncan be invoked to guarantee free speech to a group expliciflyrncalling for the harassment and murder of Jews.rnCommunities have a perfect right to regulate forms of offensivernexpression, such as spitting on the sidewalk, obscene publicrnbehavior, cursing, and threatening language or gestures. Thernproblem with hate-crimes legislation is not that we cannot orrnshould not penalize these extreme forms of incivility, but thatrnwe should not confuse our most basic sense of justice by introducingrnthe concept of bias into criminal legislation againstrnmurder, assault, and arson.rnHate crimes are one among many t)’pes of criminal activityrnthat transcend the usual categories of crime and punishment,rnand some lawmakers are calling for stringent, even draconian,rnpenalties for particularly unpopular classes of felonies: crimesrnagainst children, narcotics offenses, the shooting of policemenrnand other public officials. To declare war on crime or drugsrnsounds like a noble commihnent to virtue, but by implication,rnwe as citizens are being asked to suspend our judgment, overlookrnlegal niceties, and rally round the flag of public decency.rnAs one anti-drug crusader is fond of saying, “We’ve got to givernup our superstitious attachment to the Bill of Rights.”rnFairness in individual cases now takes a back seat to the welfarernof the communit)’. In Michigan, Ronald Harmelinrnwas stopped in 1991 for a routine traffic violation, and when hernwas caught with 672 grams of cocaine, he was convicted of possessingrnmore than 650 grams of cocaine and sentenced to lifernwithout parole. The U.S. Supreme Court upheld the convictionrnon the grounds that drug users often commit crimes. (Sorndo Arkansas lawyers, but that does not prevent them, as a class,rnfrom becoming governor or even president.)rnThe predictable results of crusades against crime are the demonizationrnof certain classes of criminals and the creation of anrnatmosphere of terror. Armed robber)-‘ is, admittedly, a seriousrncrime, and the murder of a policeman an act worthy of death,rnbut is it fair to give a light sentence to a killer or rapist and possiblvrnimpose the death penalty on the driver of the get-away carrnin a case involving the death of a policeman? Petty criminalsrnare undoubtedly a scourge on society, but is it wise to hand outrnlife sentences to three-time losers who get caught shoplifting?rnBut these are the practical effects of the “get tough on crime”rncrusades advocated by many consenative Republicans.rnThe whole concept of the “threat to society” posed by organizedrncrime, drug dealers, and cigarette smokers is in itself dangerous.rnIt hardly seems fair, for example, to expect smokers tornpay the cost of increased defense spending, but in Januar}’ thernClinton administration announced “plans to propose a Federalrntax increase of 5 5 cents a pack on cigarettes to help pay for newrndomestic and military spending programs.” I suppose someonernhas to pay for all the cruise missiles we have shot into Serbianrnvillages and TV stations.rnIf liberals are fairly accused of being soft on crime and toornconcerned with the mental condition and rehabilitation of therncriminal, conservatives have gone to the other extreme in protectingrnsociet)’ tiirough crackdowns on crime that overlook suchrnsmall matters as the rights of the criminals as well as larger concernsrnsuch as justice itself “What is good for societ'” is an objectivernthat governments must consider in framing any socialrnpolicy, whether it is concerned with drug abuse or family assistance,rnbut helping addicts to recover from addiction and providingrnmothers with financial support for their children are notrnprimarily questions of justice. Neither is public safet)-.rnAmong the most glaring abuses of justice are the ‘arious staternlaws stipulating mandatory sentences for various offenses, thernmost outrageous being the “three strikes” laws in Washington,rnCalifornia, and other states. These laws, designed to take repeatrnoffenders off the street, mandate sentences up to life for third offenses.rnThe justification for mandator}- sentencing laws is alwaysrnthe safety of the public and the cost of enforcement, andrnthe criticism is almost always made on the grounds of eitherrncost —more prisons cost more money —or kindness towardrnlULY 1999/nrnrnrn