Unusual Punishment
By ZACH DEXTER
April 2009
Last fall, several NC State students spray-painted racially charged threats to harm Barack Obama on the N.C. State Free Expression Tunnel. UNC system president Erskine Bowles felt compelled to take action.
President Bowles created the UNC Study Commission to Review Student Codes of Conduct as they Relate to Hate Crimes and put Dr. Harold Martin, UNC Senior Vice President for Academic Affairs, in charge. The Commission delivered its final recommendations on so-called “hate crime” policy this March.
The Commission failed to recommend concrete policies, instead passing the task to a Presidential Task Force because “issues surrounding the effective delivery of diversity-related programming and education requires greater study than this Commission can accomplish.” However, the Commission did recommend that Bowles implement uniform hate-crimes standards, saying that “We believe strongly that the [anti-bias] programs overall could benefit from consideration of uniform objectives and, perhaps, standards for the campuses.”
Although the specifics of the policy have yet to be finalized, two things are clear. First, a new system-wide policy to help eliminate “student code violations motivated by hate against others” will replace the policies of individual campuses. Second, actions that cause the victim to feel a real or imagined bias in one of several protected categories will be punished.
If a crime is committed outside of a protected category, it logically follows that the law should consider that crime a love crime. But this is a non sequitur; all crimes are motivated by contempt for the victim.
While the punishment for UNC students who upset others will likely be diversity training (that’s what happened in the Free Expression Tunnel case), trends toward hate crime legislation at the state and federal level will have more severe consequences.
Under hate-crimes laws, if someone commits assault against a victim whose religion differs from the attacker’s religion, the state or federal government could prosecute the assaulter for a hate crime and give him a longer sentence – even if his motivation for the assault was not religion. Only if the victim and the attacker have the same characteristics in each of the protected categories would the attacker be ineligible for the longer sentence.
In order to prove that religion was the motivation for the crime, prosecutors would have to dig into the attacker’s thoughts. Statements made to friends about religion, purchases of literature about other religions, and examinations of the attacker’s worship habits would all be fair for prosecutors seeking to win a longer sentence based on the private mental thoughts of the accused.
Policing thought is a slippery slope. Our government should not begin to regulate thought at any level. Thomas Jefferson explained that "The legitimate powers of government reach actions only, and not opinions."
The Foundation for Individual Rights in Education warns that “teaching students to reflexively rely on official censorship when dealing with deeply offensive speech is infantilizing and misleading. In the world outside of UNC, students will not enjoy the false luxury of freedom from offense.”
Therefore, instead of punishing real or perceived bias, we should punish crime to the fullest extent of the law. The statements on the Free Expression Tunnel arguably amounted to threats to physically harm Obama. That is already illegal. In fact, most would-be “hate crimes” are already illegal.
Even the Commission knows that hate crimes laws are redundant. Their report calls for “A specific prohibition against the infliction or threat of bodily harm that meets the legal definition.” But as this quote indicates, inflection or threat of bodily harm is currently illegal. So the solution cannot possibly be to enact more laws. Instead, we should enforce the current laws.
In the past, groups like the NAACP have cited high-profile murders in their efforts to effect hate crime legislation. One such example was the murder of James Byrd, a black man from Texas who was killed by white supremacists. The three perpetrators were prosecuted for murder, and two received the death penalty.
The murderers knew that murder was against Texas state law, yet they still killed their victim. Tacking on an additional federal or state penalty could not have stopped the murder. Thus, the solution to violent crimes is not to analyze possible reasons that offenders holds victims in contempt. Rather, the solution is to severely punish the offender for the actual crime and not the motivations.
For nonviolent incidences of alleged discrimination, it is often unclear what the motivation of the accused actually is. At UNC, the administration should follow up on allegations of misdemeanor or criminal activity with charges of misdemeanor or criminal activity. Analyzing physical differences or differences in opinion between the offender and the victim will just tear at the fabric of our community.
For example, students in favor of California’s Proposition 8 could be charged with having a bias against people of a certain gender orientation (a protected category under the proposed rules). There is no need to accuse these students of hate crimes for speaking their minds. Such a bias is nonthreatening, and certainly does not compare to the bias that detractors of Proposition 8 have displayed on a regular basis.
Protestors against Proposition 8 spat racial epithets at blacks, a group that overwhelmingly voted in favor of defining marriage as between a man and a woman. They attacked Christians and surrounded a Mormon church, shouting “Mormon scum!” These protestors vandalized property and left some pro-Position 8 workers unemployed. Yet few calling for hate crime laws would recommend that these protestors be charged with hate crimes.
Hate crime laws will result in serious government invasion of private thought that will cause our society to reflect too deeply on our physical differences. Hate crime laws will also be absolutely useless against actual crime, because crimes are already illegal.