Libertarian Participates in DU Law School Panel Discussion
"Hate Crime" Legislation
by David Bryant, January 1999
The election results were not even a week old when I got the call.
One of the unsung benefits of being a Libertarian candidate for public office is that one attains a certain notoriety merely by losing. Whether the Party itself or the candidates had won recognition was hard to tell. Either way, there it was -- an invitation from the faculty and students of the Denver University School of Law for a Libertarian to participate in a panel discussion of existing and proposed hate crime legislation on Monday, November 23, 1998.
I accepted the invitation immediately. Here were at least three opportunities rolled into one. It was a chance to hone my public speaking skills. It gave me an incentive to study the hate crime legislation already on the books, and to form a more closely reasoned opinion about the current clamor to enact more of it. And if I spoke well enough, I might influence a few nascent attorneys to lean in more libertarian directions.
With nearly two weeks in which to prepare myself for this close encounter with the legal mind, I began by reviewing the Libertarian Party's platform, the two hate crime statutes on the books in Colorado, and a few randomly selected statutes from other jurisdictions. The results of this early research surprised me. While there are some very questionable hate crime laws in other states and in the U.S. Code, and while most of the recent agitation to enact more laws in the wake of Matthew Shepard's murder has been driven more by emotion and less by reason, Colorado's existing ethnic intimidation statutes (CRS 18-9-121 and CRS 13-21-106.5) are carefully drawn and difficult to criticize on purely libertarian grounds.
It soon became clear that I cannot oppose all existing and proposed hate crime laws as a matter of principle. So I decided to concentrate my arguments in two specific areas. First, I would propose standards against which all legislation should be measured to be sure it comports with libertarian principles. Second, I would advocate the repeal of existing laws which serve to promote and encourage unjust and bigoted behavior directed toward specific minority groups.
As the appointed day approached and I learned more about the other panelists, I also realized that the question of hate crimes against gays would be the primary focus of the discussion. Marisa Amin, a student at DU, was my primary contact with the organizers. She gave me a packet of background material. The packet included a list of questions that would be directed to the panel by the moderator, selected figures drawn from the FBI's annual Hate Crime Statistics report, information about two U.S. Supreme Court cases (R.A.V. v. City of St. Paul and Wisconsin v. Mitchell) that tested the constitutionality of hate crime laws in two Midwestern states, and a couple of recent newspaper articles about the Matthew Shepard case.
Over the weekend I used the Īnet to retrieve more data from the FBI's web site. I reviewed the Hate Crime Statistics 1996 report with special care. I also compared the reported incidence of hate crimes against the national statistics on crime in general. The results were generally what I expected, with a few glaring exceptions. 69% of the reported hate crimes were directed against persons; the remaining 31% were defined as crimes against property, and a vanishingly small percentage (0.16%) fell into the special category of "crimes against society." These figures stand in sharp contrast to the statistics for crime in general, where one finds that 5% of all crimes victimize a person directly, and 95% are property offenses. The statistics are not directly comparable, however, as the national figures for crime in general do not include assaults, acts of intimidation, or simple vandalism, while such incidents comprise 96% of the reported hate crimes.
The overall incidence of hate crimes in the study is quite low, averaging about 4 incidents per 100,000 people per year. Comparing this with the overall incidence of crime (5,079 incidents per 100,000 per year), I am led to conclude that hate crimes are not exactly inundating the nation. Comparing only those crimes which are defined the same way in both FBI studies, it appears that 0.0042% of all the incidents of murder, rape, robbery, burglary, larceny, and motor vehicle theft reported in 1996 were classified as hate crimes, implying that 99.9958% of the reported crimes in these categories were not so classified.
Though incomplete, the FBI's figures on hate crimes exhibit some surprising tendencies. For instance, the reported incidence rates are highest in New Jersey, Delaware, Maryland, and Massachusetts, while the lowest rates are found among Louisiana, Mississippi, Arkansas, and Alabama. Standard methods of statistical analysis confirmed what seemed intuitively obvious: the outlying data points are so far out of line with the general trend as to cast doubt on their integrity, and biases inherent in the data collection process have almost certainly colored the final results. In short, these data are lousy. At least the other panelists would be working off the same page.
Such thoughts faded from my mind as I surveyed my surroundings. There were already some 35 students in the ampitheater, and more were still walking in. I introduced myself to James Rouse, the panelist seated next to me. Jim is president of the Rocky Mountain Family Legal Foundation, a legal services organization which primarily defends the free speech rights of abortion protestors. Seated on the other end of the dais were Mark Silverstein, Director of Legal Services for the ACLU in Denver, and Julie Tolleson, Managing Attorney for the Colorado Legal Initiative Project, a lobbying group which represents Colorado's gay and lesbian community before various legislative bodies.
By the time we started there were 50 or 60 people in the audience. After some brief opening remarks the panelists were introduced and Martha Ertman, a professor at DU who teaches business law, assumed her role as moderator. She gave a quick overview of the statistics cited above, emphasizing the official classifications of hate crimes by "bias motivation" -- 72% motivated by race or ethnicity, 16% motivated by religion (with 80% of these directed against Jews), and 12% motivated by sexual orientation. Ertman also noted that after adjusting for the relative preponderance of white and black people in the U.S. population, it appears that hate crimes by blacks against whites are perpetrated twice as often as those by whites against blacks.
I was the first panelist to speak. I thanked Ertman for her gracious introduction, stressed the fact that while I am a member of the Libertarian Party, any opinions I hold are my own and not the Party's, then emphasized my status as a layman whose approach to legislation is primarily pragmatic. We are here, I said, to evaluate proposed solutions to the problem of hate crimes, and to separate good proposals from bad ones. To that end I will propose six criteria which may be used to weigh any piece of legislation, whether or not it has already been enacted.
Three of these criteria derive from simple legal and practical considerations. First, does the problem we wish to solve fall properly within the province of the law? If not, a legislative solution to the problem is bound to fail. Second, does this particular unit of government possess the requisite constitutional authority to enact the desired legislation? If not, we must either take our proposal to some other unit of government or work for an actual constitutional amendment, for alterations in the plain intent of our written constitutions by either legislative or judicial fiat cannot be condoned. Third, can this law be enforced? Will the benefits outweigh the costs? There's no point in squandering our resources by passing laws nobody will obey. And when we reckon the cost of law enforcement, we should look beyond mere dollars and cents. We must never forget that each expansion of state power involves a corresponding reduction of social power.
The next three criteria, I continued, are drawn from economics. The natural order of things is deeply ingrained in the human psyche, and public policy must take that natural order into account. Since economists have discovered some deep ordering principles which affect many human interactions, the legal profession can learn valuable lessons by analogy.
First, consider the economic principle known as the law of diminishing returns. As businesses grow in size, the incremental yield from additional investment tends first to increase, but ultimately to decrease as the limits of efficiency are approached. The legislative analogy is straightforward. There are already so many laws on the books that new laws are likely to cost more than they are worth. Consideration of this principle inclines me to seek the repeal of some existing laws, not to enact even more. In particular, I said, we must repeal those laws which criminalize homosexual acts between consenting adults, for such laws implicitly sanction acts of bigotry against gays.
A second economic rule is Gresham's law, that bad money tends to drive out the good. Similarly, bad laws tend to increase public disrespect for the law in general. This principle says we should be very careful not to enact bad laws, for they tend to undermine the rule of law itself.
The third applicable economic insight is the very first principle of economics: People seek to satisfy their desires with the least expenditure of effort. The analogy with laws and law-making is again straightforward. When a societal problem confronts us, we may use either social power or state power to resolve it. Perhaps, I suggested, raising the hue and cry for a new law is taking the easy way out. It's always more difficult to do something about the problem personally than to make a new rule and then pretend the problem is gone.
Wrapping up, I said that Libertarians support the concept of equal protection under law. When evaluating legislative proposals we want to be tough, but fair; open-minded but objective. Libertarians challenge the idea that more and bigger government can solve our social problems. In particular, applying these six criteria to proposed and existing hate crime legislation will lead to fewer and better laws.
Jim Rouse of the RMFLF spoke next. Hate crime legislation tends to muzzle free speech, he said. The line between expressions of opinion and acts of intimidation is not easily drawn, and the law should err in favor of protecting the freedom of speech. He cited several Supreme Court cases in which the first amendment's prohibitions have been held to protect "provocative and challenging" speech. It is not necessary to enact laws distinguishing between violent acts directed against random victims and violence directed specifically toward members of hated groups. In either case the damage is the same. If someone is mugged and ends up in the hospital in traction, he feels the same pain as another victim who was beaten because of his race or sexual orientation. The law, therefore, should treat these two victims in the same way, for they have suffered the same actual harm.
Mark Silverstein of the ACLU was the third panelist to speak. While expressing general support for legislation against hate crimes, he said the legislatures and the courts must be especially careful not to infringe our civil liberties. He agreed with Rouse' contention that some hate crime legislation impermissibly encroaches on free speech, and he said the ACLU also opposes laws which attempt to regulate people's thoughts. He gave some examples of anti-discrimination laws concerning housing and employment which have been held constitutional by the courts, and said the ACLU favors the addition of sexual orientation to the list of protected classes in such statutes.
Silverstein discussed existing case law in some detail. In the case of R.A.V. v. City of St. Paul the Supreme Court struck down a city ordinance which criminalized the use of "fighting words" which "one knows or has reasonable grounds to know arouse anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender." In Wisconsin v. Mitchell the same court upheld a statute which provided an enhanced penalty where the victim of a crime was intentionally selected on the basis of race, religion, disability or sexual orientation. Therefore, he said, it is clear that hate crime laws must focus on the process of selecting a victim from these or similar classes if such laws are to pass constitutional muster.
In the ACLU's view, the courts must carefully restrict the evidence admitted in the criminal trial of anyone accused under a hate crime law. Evidence based on prior statements or past associations is inadmissible. The evidence must be directly associated with the crime itself. Proof that the accused chose his victim based on a prohibited categorization must be clear beyond a reasonable doubt. Finally, the ACLU has recently issued a formal policy statement to the effect that the mere utterance of a racial or religious epithet during the commission of a crime does not establish the element of racial or religious selection of a victim beyond a reasonable doubt. In other words, prosecutors have a tough row to hoe when they try to make a hate crime case.
The final panelist, Julie Tolleson of the Colorado Legal Initiative Project, gave a much less technical presentation. She spoke of the difficulties gay and lesbian people face in their daily lives. She said that CLIP is absolutely necessary, for gay and lesbian people need protection from the vicious forces of bigotry and discrimination running amok among us, and only the law can protect them. Without organizations like CLIP the general assembly would never even consider passing such laws.
She took issue with Rouse' comments about like punishments for similar injuries. She insisted that when violence is directed toward gays or lesbians because of bigotry or hatred, both the victim and society itself suffer "a different kind of injury." She challenged the idea that equal protection under the law is already afforded to gays and lesbians. They will not obtain equal protection unless the law recognizes them as a class. She also spoke of the necessity of sending a message to the perpetrators of hate crimes -- of "punishment as a statement of public policy." Crimes against minority groups are crimes against society, and society must deal with them severely so people will learn that we don't tolerate hate and bigotry.
After the four panelists had concluded their opening remarks, Ertman began to address questions to various members of the panel. "Leaving aside the easy case where the perpetrator says, 'I'm assaulting you because you are a _______,' how do we know if a crime is motivated by hate?" she asked Silverstein. He reiterated the ACLU's position on the rules for establishing bias as a motivating factor without elaboration. Rouse volunteered his opinion -- it's not possible, and even if it were, legislation that requires courts to divine this element of bias against a class unconstitutionally infringes on freedom of speech and thought.
Ertman's next question was directed to Julie Tolleson. "How do existing laws protect persons who have been victimized because of their race, religion, or sexual orientation?" Julie responded by talking about Colorado's ethnic intimidation statute. She pointed out that sexual orientation is not included in the list of protected classes, and said it should be added. Silverstein noted the existence of federal laws which define a wide variety of protected classes, including federal employees. I observed that, strictly speaking, the law cannot really protect anyone -- it sets boundaries on people's behavior, but when push comes to shove, it is my responsibility to protect myself from an aggressor. If I am injured, I may seek redress through the courts, but that can only happen after the fact.
The discussion shifted to the role of punishment within our system of laws. Tolleson spoke again of the "different kind" of harm inflicted on society, and of society's need to meet this threat with enhanced punishment. The government must send a message to the hateful among us by punishing them severely. Rouse objected to this idea, saying once again that the law should impose the same punishment on two assailants who have inflicted the same actual physical injuries on their victims. Mr. Silverstein launched into a theoretical discourse on the various purposes of punishment, laying particular stress on the element of retribution. He appeared to sympathize with Tolleson's position, speaking of crimes which strain the very fabric of society, and alluding to some potential purpose of punishment extending beyond the particular crime and the individual victim.
When I got a chance to speak I made three points. The discussion is centering entirely on the criminal law, I said. In fact, there are two ethnic intimidation statutes in Colorado, and one of them creates a private right of action. Private lawsuits are generally preferable to public prosecutions because the cost of the proceeding is borne by the parties and not by the public at large. Secondly, I observed, as a pragmatist I must object to this obsession with punishment as retribution. Libertarians favor restitution to the victim when that is possible. Preventive detention of a criminal has some practical value, but retribution is totally impractical. Finally, this whole notion of a crime against society is nonsense. Real crimes involve real victims. The law should focus attention on the individual victim, not on some specious abstraction.
The discussion continued in this vein for a few more minutes. Suddenly Ertman turned to me with a roguish smile and said, "Bryant, you say that you are responsible for protecting yourself, and that you favor civil suits over criminal prosecutions. Is it every man for himself, then? Are we to have no law and order at all?" The room was silent. Friendly faces turned dark.
Of course not, I replied. The institution of civil government is indispensable. The question is one of emphasis. I think the focus should be on the individuals whose lives and liberties are to be preserved and not on the mechanism created for that purpose. In fact, since government is force, we must be wary of the ways in which that force is applied. The power to coerce is always subject to abuse.
Let's get down to brass tacks, I said. This forum isn't really about hate crimes in general. It's about the murder of Matthew Shepard, and widespread bias against homosexual people. You ask what the government can do about this, and I reply that cleaning up its own act would be a good start. Let me tell you a story. A friend of mine, Wayne White, is openly homosexual. He was the Libertarian Party's candidate for Attorney General this year. A few weeks ago, I met one of Wayne's friends named Lance, who also happens to be an openly gay attorney. In his legal practice Lance often represents homosexual men who have been charged with public indecency under Denver's municipal code.
According to Lance, the Denver police department actively recruits attractive young men to serve on the vice squad. These officers make a practice of hanging out in gay bars. They solicit sexual favors from other young men in the bar. If the invitation is accepted, the pair retires to the "public" restroom. Some of the officers will actually go all the way, allowing the target to perform fellatio on them before pulling up their pants, writing out a summons, and walking off with a cheery, "See you in court, pal."
Now I understand that judges have held this is not entrapment, for the target of the "investigation" was somehow predisposed to break the law. But the way I look at things, the real criminal in such a case is the police officer. There's nothing particularly public about the restroom in a gay bar, and the thought that a policeman can get his rocks off, get paid for doing it, and then prefer a criminal charge against the person who gave him pleasure is absolutely repugnant to me. If we want to end mistreatment of gay men, we must first abolish such abhorrent official misconduct.
I stopped. I had nothing more to say. There was a brief smattering of applause. Darkened faces were smiling again. I had scored a direct hit.
Our time was almost up. Ertman moved the discussion toward consideration of a hypothetical case study. There was little interest in that, so she threw it open for questions from the floor. The first questions were directed toward Silverstein. People wanted him to elaborate on the exact nature of the evidence which might be used to establish that an assailant had selected his victim on the basis of that person's race or religion. Silverstein would not elaborate. The questioners grew somewhat frustrated. I thought of the Oracle at Delphi.
Tolleson fielded a few simple questions about classification by race as opposed to classification by sexual orientation. And then an intense young brunette directed a bombshell at Rouse. You, she said, told us there is no difference between a random assault and an assault motivated by hate directed toward a particular group. You said the injuries suffered in each case are similar, and either kind of victim feels the same pain. Let me tell you about my father. He is homosexual, but he hid this fact from his friends and family for many years. One night he was assaulted outside a gay bar. The injuries he suffered were not only physical -- there was a great deal of emotional damage as well, for his deep dark secret came out as a result of that attack. His marriage was destroyed, and several of his long term business relationships also suffered. How can you know anything about the pain my father feels?
That was a tough question, and Jim answered it as gamely as he could. I'm sorry your father was injured. I hope his assailants were apprehended and punished -- not for their opinions about homosexuality, but for the harm they inflicted on him. I defend everyone's right to speak freely, your father's as well as the next guy's. If your father wishes, he is free to contact the legislature and to seek some modification of the law, such as adding sexual orientation to the list of defined classes in Colorado's ethnic intimidation statute. But I cannot accept the idea that the law should punish people based on the content of their thoughts.
He paused, and was immediately hit with a barrage of questions. Isn't motivation widely accepted as an aggravating factor under existing law? What about the distinction between premeditated murder and murder as a crime of passion? Are we punishing those people for their thoughts or aren't we? How can you pretend to know what the victim of a crime feels? Are you gay? If not, how do you know anything about gay people's feelings?
Rouse did his best to counter these questions, but began to wilt as the onslaught gathered momentum. If fundamentalist Christians were being assaulted because of their beliefs, would you support prosecutions under the existing ethnic intimidation statute? Yes, he replied guardedly. Well, what about assaults against homosexuals? Don't they fall in the same class as assaults against Christians? No, he said. Under what circumstances would you consent to add sexual orientation to a list of classes in a hate crime law? I cannot think of any such circumstances, he replied. Don't you sometimes serve as an attorney for Focus on the Family? Yes. Will you represent their interests in the next session of the legislature? I'm not at liberty to say. And so on.
At a quarter to six the moderator called a halt, inviting everyone to continue the discussion in the atrium just around the corner, where complimentary hors' doeuvres and beverages were available. As the audience drifted out the door I spoke briefly with Ertman, thanking her for her hospitality and telling her how much I had enjoyed the discussion. Rouse left quickly and quietly. I headed toward the atrium myself, gulped down a glass of wine, spoke briefly with a few of the students who had questions about my presentation, then sought out Julie Tolleson to thank her for participating. As I headed home several unanswered questions continued to buzz through my head. My experience that evening had taught me a lot -- it was clear I still needed to improve my understanding of hate crime legislation.
Coming next month: A Libertarian analysis of hate crime legislation