A Libertarian Analysis of Hate Crime Laws
by David Bryant, March 1999
The law students at DU are an inquisitive bunch, especially with wine and cheese in hand. They asked several very telling questions, which gave me plenty to think about in the weeks following my close encounter with the legal mind. (See Part I of this article, Libertarian Participates in DU Law School Panel Discussion, in the January issue of CFR.)
One young lady asked an obvious question right away. "I listened to your opening remarks very carefully," she said, " and though I enjoyed them, and thought they were concise and logical, I didn't hear you take a position on hate crime laws in general."
"You didn't hear me take a position because I had carefully crafted that speech with the precise goal of not taking a position on such laws in general."
"Well, then, now that the panel discussion is over, would you care to take a position?"
"I'm still working that out," I told her. "In general I think that some of the existing laws are very bad, a few are no worse than most laws are, and nearly all the proposals for new or revised legislation in this area are unnecessary. But I always try to reserve judgment for particular cases, so I will do my best to evaluate each new proposed hate crime law on its own merits."
Another young woman seemed genuinely interested in the concept of restitution. "I was intrigued," she began, "by your insistence that retribution serves no useful purpose, and that viewing restitution as an essential element of punishment is more logical. I wonder how that would work, though, if the defendant has little money with which to pay his victim."
Perhaps I was a bit too quick with my reply. Restitution need not take a monetary form. If the criminal defaced property, let him restore it to its original condition. If he injured someone, let him learn something about pain and suffering, perhaps by changing bedpans at a hospital. No form of punishment is perfect, for this is an imperfect world. But whenever possible, restitution should be the preferred mode of punishment.
She persisted. "That makes sense enough in a criminal prosecution for a hate crime. The judge can sentence the miscreant to some sort of community service. But what about the civil suits you mentioned? Do you think restitution makes sense in that circumstance?"
"Well, that would be up to the plaintiff, wouldn't it?" I shot back. "If the aggrieved party feels some proposed form of restitution is adequate compensation for his injury, he should be free to accept it. I realize that the traditional role of judges and juries might need some revision to make this idea work, but isn't it worth a try?"
Deftly she sprang her trap. "But how is the plaintiff to pay for
his legal representation if he can't get money from the defendant?
My client might be happy seeing the criminal scrubbing the graffiti off
a few garage doors, but that's not going to pay my fee!"
We were at an impasse. She regarded me coolly, then tossed her head back and said, "You sound just like my husband. He tells me he's beginning to think like a libertarian." I had to laugh at this. "Tell your husband he has remarkably good taste in politics -- and in women."
I drifted through the dissipating crowd. There was Julie Tolleson, talking with a small group of friends who had circled the armchairs. Spying an empty chair I took a seat, and soon had a chance to thank Julie for her presentation. "Although I didn't agree with all the points you made, I felt you presented your side of the argument honestly and forcefully," I told her. "The one thing I can't understand is how a law which regulates the behavior of individuals can be justified in the name of the greater good of society. Shouldn't we think in terms of justice for each individual member of society?"
She responded enthusiastically. "You Libertarians have some interesting ideas. But why are you so concerned about the individual members of society? Can't you see that the good of the whole is more important than the good of any one of its parts? Isn't it clear to you that social justice is the end toward which the law must strive?" Sensing that this might easily develop into another lengthy debate, I mumbled something noncommittal, then shifted the discussion in the direction of what Julie and her friends at the Colorado Legal Initiative Project hoped to accomplish during the next session of the general assembly.
We parted amicably -- and with our irreconcilable opinions intact. So it went throughout the evening. Several students acknowledged the logical force of the arguments I had advanced, but most seemed eager to have the government intervene, somehow, to reduce the already small number of hate crimes even closer to zero.
First, I see no proper place in a system of civil government for laws that attempt to regulate the content of people's thoughts. Not only are such attempts doomed to fail -- in my opinion they are also anathema to the principles on which a free society must be based.
Let us consider a few relevant provisions from the current Libertarian Party Platform. In the Preamble we read that
What about demonstrations against gays? Should the laws allow a religious ministry to picket a gay bar with signs that say "God will punish you"? Yes, so long as the picketers stay off the gay bar's premises and do not constitute a hazard to the bar's patrons or employees, or to the general public. No, if their conduct causes anyone to feel a reasonable fear for his own safety, or the safety of his property.
Finally, let us consider a third class of hate crime laws -- laws similar to Colorado's ethnic intimidation statute, which define a new crime in terms of the perpetrator's demonstrated bias against a person because of that person's race, or religion, or sexual orientation in connection with aggressive behavior, such as assault and battery, or vandalism, which in itself clearly constitutes criminal force. Should Libertarians support laws which criminalize the intent to victimize members of particular classes in such cases? If so, why? If not, why not?
In this instance I can find no clear-cut guidance in the Party's Platform, so I am forced to reason indirectly from the plank on Individual Sovereignty, and by analogy with well-accepted principles of the common law. The example which springs immediately to mind is the crime of murder. The common law (and the statutory law in every American jurisdiction I ever heard of) recognizes three kinds of homicide: first-degree murder, committed with pre-meditated intent; second-degree murder, committed in the heat of passion; and third-degree murder, or manslaughter, defined as a crime of negligence, or lack of due care. In this third case, intent is entirely missing.
We are all familiar with these distinctions, and most of us accept them without question. But have we ever stopped to consider why the law makes these distinctions? In particular, if the state derives its power to punish the criminal from the individual right of self-defense, how can we justify punishing one kind of murderer more severely than another?
Think for a moment not of an actual, completed murder, but of an attempt upon your own life. Suppose you were able, somehow, to stop the murderer before he actually killed you. Would you feel personally justified in basing the punishment you would mete out upon the specific intent of your assailant? Do the three classes of murder established by law make sense to you, personally?
When I think this through I can see a clear-cut reason for punishing the would-be murderer who pursued me with a specific intent very severely indeed. I would feel justified in taking his life because of my own personal right of self-defense, even after I had managed to render him temporarily harmless. Since he has formed the specific intent to kill me and has acted upon that intent for some extended period of time, I cannot be safe unless he is rendered incapable of doing what he wants to do. And I would expect my neighbors to support me in this determination since they might reasonably fear that this individual, should he succeed in killing me, might one day very well constitute a threat to their lives too.
What about the person who loses his self-control in the heat of passion and attempts to take my life? If I somehow managed to render him temporarily harmless, would I feel justified in dealing with him as severely as if he had deliberately pursued me with the intent to kill? Almost certainly not. In the first place, if the heat of passion were really present, I myself might have been somehow at fault in the whole altercation. In the second place, my own anger usually cools rather quickly. If I truly recognized what had driven my assailant to lose his cool, I would incline toward mercy. Finally, my neighbors would hardly consider this person a terrible threat to their own safety. He didn't set out to harm anyone intentionally -- he snapped under stress. Clearly he is less of a threat to my health and safety-- and to my neighbors' -- than the man who stalked me relentlessly.
OK, what about the fool who negligently cut down a tree that fell across the fence into my yard? If I were away from home at the time, this would damage my property, but it would not endanger my life. If I had been home at the time, I might have been forced to jump out of the way to avoid being squashed like a bug. No doubt I would have been hot. But since my negligent neighbor would probably be apologizing profusely at just this moment, or since he might even have hollered "Look out!" when he saw the tree falling in my direction, I could not possibly feel justified in actually killing him afterwards and then calling it self-defense. In fact, if the incident merely frightened me, and if I thought there were extenuating circumstances, I might eventually come to believe that my neighbor hadn't even been negligent. I might decide to chalk it all up to simple bad luck instead.
From this line of reasoning it is clear that the common law distinction between three classes of murder is indeed consistent with the Libertarian ideal of the right of self-defense and with the general principle that government derives its just powers from the rights which people surrender when they transfer some of their personal authority to it. Can we carry this argument over to the third category of hate crime laws? Is there an analogous element of intent present in some cases of assault and battery, or of vandalism?
At first blush the answer appears to be yes. Consider a hypothetical case in which an individual, because of an unreasoning hatred toward Libertarians, deliberately seeks me out, threatens me, and then beats me. This is a case of assault and battery. How far should I go to defend myself from my assailant? What punishment would be justified? In particular, would I be justified in meting out a greater punishment to this assailant than if he had somehow chosen me entirely at random?
This hypothetical example bears some superficial resemblance to the case of first-degree murder we have already analyzed. My assailant did not commit his crime in the heat of passion. He did not attack me negligently. He did form a specific intent to harm me because I am a Libertarian. I might reasonably conclude that the probability this particular person will seek to harm me again is heightened because there aren't very many Libertarians in my neighborhood. I might even feel (irrationally) that his hatred of Libertarians merits some special punishment.
So yes, there are some similarities between this hypothetical example and the case of murder with specific intent. But there are also some important differences. My assailant's evil intent did not fasten directly on me. Initially he intended only to harm a Libertarian. In the end, mere circumstance made me his victim, and in this sense he selected me at random. Moreover, most people would not consider his hatred of Libertarians to be more dangerous than some less specific form of misanthropy. My neighbors would think of my assailant as a garden-variety thug -- unless they also happened to be Libertarians.
And this, I think, is the sticking point for Libertarians when it comes
to hate crime laws which criminalize the element of bias toward a particular
group. As Libertarians we all agree that rights inhere in the individual.
We deny the existence of collective rights which are not drawn from the
rights of each individual composing the group. On this ground alone
Libertarians ought to oppose the passage of laws which criminalize the
element of intent based on bias toward or hatred of a particular class
of people. Let the law prohibit force and fraud, and there make an
end of it.
This consideration brings us back to the first criterion I proposed to the students at DU last November. Does the problem we wish to solve fall properly within the province of the law? We have already seen that this particular problem, the existence of hate and bias within human society, does not. Logically, then, any proposed solution to this problem must be pursued outside the courts if it is to succeed.
The very first step in this process is obvious. We must eliminate every form of institutionalized bias from the laws, from the courts, and from the police departments of America. Fifty years ago racial segregation was written into the law. All those laws have now been overturned. Yet many statutes which express bias toward homosexual people still remain in full force and effect. We cannot eliminate hatred from society at large until the law becomes as blind toward race, and religion, and sexual orientation, as Justice herself is supposed to be.
But there is a larger battlefield than the halls of justice -- it is the hearts and minds of our fellow men. Hatred lives within the minds of individuals, and it is there and there alone that it can be defeated. Let us begin by examining our own attitudes toward our neighbors. Am I as tolerant of my neighbor's quirks and peculiarities as I ought to be? If not, I must change myself. That is the only real and lasting change within my power to make.
And what of those others who will not immediately consent to examine their own minds? What can I do to help them? Let me first make them aware that there are standards of civil conduct, and that I am willing to enforce those standards when necessary. Force and fraud are prohibited. But beyond that, let me be an example to them with my own words and deeds. Let me show them by my life there is a better way.
This method for achieving greater love and understanding is not quick, and it is not easy. But it is the only one that can ever possibly work.