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Hate-crime legislation brings misgivings

Maybe it should be a question on a TV quiz show.

The leftist Jesse Jackson and the ACLU are for it. So is Bill McCollum, the right-wing Florida Republican who was a House manager for President Clinton's impeachment trial. Clinton says he'll make it a top priority in the final months of his presidency.

And Bill Raspberry can't make up his mind about it.

What is it?

The correct answer: the federal hate-crime legislation that passed the Senate back in June but has been stalled in the House. This bill, with its unlikely array of supporters, would expand the reach of the existing hate-crime law, which only covers crimes involving race, religion or ethnicity, to include gender, sexual orientation and disability, while also making it easier for federal prosecutors to get involved.

It's not the expansion that bothers me. If you're going to have hate-crime legislation, surely you'd want it to cover the most likely targets of hate crimes, and this would include gays and lesbians.

But why would you want hate-crime legislation in the first place?

I assume I don't need to point out that I oppose hate _ that I am particularly bothered by hate directed at people on the basis of their group membership. But what bothers me a lot more is the violence produced by that hate. I certainly want that outlawed.

But it's outlawed already. What activity covered by the legislation would go unpunished (or insufficiently punished) without it?

The lynching of James Byrd Jr. (no less a lynching because he was dragged to his death rather than hanged from a tree) is the sort of thing proponents of the legislation often point to. But the three white men implicated in that Jasper, Texas, case have all been convicted, not of hate but of murder. Two have been condemned to death, the third given a life term. What purpose would an additional hate-crime conviction have served?

Similarly with Matthew Shepard, the gay Wyoming student who has become the poster boy for hate-crime laws. But two men are serving life sentences for Shepard's brutal murder.

What drives the demand for additional penalties? It can't be deterrence. No one can believe that Shepard or Byrd would be alive today if their killers had faced the additional prospect of a hate-crime conviction.

No, I think hate-crime legislation is driven by factors that seldom get mentioned. One is our memory of a time when lynchings and similar outrages went unpunished by Southern courts. It was that refusal to punish _ a species of nullification _ that led to the enactment of federal laws, in effect to give us another bite at the apple of punishment. Is there still a need for such second-bite legislation?

Another factor, also memory driven, is the sort of behavior that used to be seen as precursor to hate crimes: cross burnings, swastika paintings and the like. Without hate-crime legislation, wouldn't we be reduced to punishing such shocking behavior as mere misdemeanors _ air pollution and vandalism?

And with hate-crime legislation? Just how long a sentence should there be for some idiot who expresses race hatred by burning a cross?

Then there is the matter of simple revulsion. We want to register _ in a public and societal way _ that not only some behavior but also some motivation is beyond the pale. Violence, we want to say, is bad; violence triggered by group hatred is worse.

We make a distinction between acts intended to frighten their victims and those intended to kill _ even if the actual outcome is the same. If we can distinguish on the basis of intention, why not on the basis of motivation _ of hate?

I have two problems with that line of thinking: First is the division of American citizens into various categories more or less worthy of whatever protection the law can give them. If we want to provide special status for blacks and Jews, for instance, what about homeless bums who may find themselves subject to attack for who they are? What about special protection for abortionists, or drug dealers, or prostitutes, or those right-wing clerics whose unctuous smiles some people find so annoying?

And the other problem: Hate-crime legislation finally turns out to be an attempt at thought control. It says we'll punish you for what you did, yes, but also for what you were thinking when you did it. It says we'll punish you not merely for your racist or anti-gay behavior but also for your bigoted beliefs.

How can so many thoughtful people believe that punishing thought is a good idea?

William Raspberry is a columnist at the Washington Post.

Washington Post Writers Group