You'll be hearing a lot about hate crimes in the upcoming weeks. Next to redistricting, it is the most explosive issue before the Texas Legislature, one that could derail the entire session, as it almost did in 1999. This may seem strange, since just about everybody agrees that hate crimes are deplorable. But they can't agree about whether the law should treat those crimes differently from others. The James Byrd, Jr., Hate Crimes Act, named for the Jasper resident who was dragged to death behind a pickup truck in 1998 by three white supremacists, increases the punishment for crimes whose victims were targeted because of their race, religion, or sexual preference. Passions were first aroused by the impending death in a Senate committee of the 1999 version of the bill, sending senators into closed-door party caucuses for hours of deadlock and dissension. Last year the National Association for the Advancement of Colored People galvanized African American voters against presidential candidate George W. Bush with a TV spot alluding to the dragging death of Byrd and blaming Bush, who had expressed reservations about the bill, for its defeat. And the passions surfaced again in a February hearing on the Byrd bill before the House Judicial Affairs Committee.
Stella Byrd, the victim's mother, pleaded with the committee to make the bill a testament against hate that would show her son's children that their father had not died in vain. But then a retired Air Force major testified about being spat on after returning from Vietnam and asked why people who hate the military should not be prosecuted under the bill. And state representative Will Hartnett, a Dallas Republican who is the vice chairman of the committee considering the bill, asked why state law should treat the rape of one six-year-old girl differently from the rape of any other six-year-old girl. The committee, which is chaired by the bill's House sponsor, Houston Democrat Senfronia Thompson, approved the bill, but the testimony made it clear that the disagreement over hate crimes has not abated.
Most lawmaking involves familiar questions of politics and policy, matters that are worth fighting over but are nevertheless well removed from basic ideas of what kind of society we want and what role our laws should play in shaping it. There is a certain amount of government intrusion when the state sets a speed limit or requires cars to be inspected, but it does not have the same impact as a law that says society disapproves of a certain thought or belief, or one that says that some victims need more protection than others from similar crimes. Hate crimes laws seem to draw just these sorts of lines, which is one reason they stir up so much emotion. At issue are two of the most elemental principles of American law, free speech and equal protection of the laws—the kinds of things that first-year law students argue about among themselves in the first week of law school. The hate crimes debate reminds me of the arguments my classmates and I used to make: Opponents of hate crimes protections say that the Law should treat all people the same. Proponents acknowledge that as true, but ask where, in a world in which people do not treat each other the same, can a victim turn but to the Law?
The proponents believe that a hate crime is fundamentally different from an otherwise identical crime that lacks the element of hate. Defacing property is a crime, but there is a difference between kids spray-painting "Seniors Rule!" on the wall of a high school cafeteria and kids spray-painting a swastika on the wall of a synagogue, and the difference should be reflected in greater punishment for the crime that is accompanied by hate: a class C misdemeanor (maximum fine of $500 and no jail time) for "Seniors Rule!" but a class B misdemeanor (maximum fine of $2,000 and up to 180 days in jail) for the swastika. But Cathie Adams, the president of the Dallas-based Eagle Forum, a conservative political group, insists that there is no distinction. "Look, I am willing to fall on my sword for the Jews," she told me. "I've been to Israel over twenty times, and I have lobbied for continuing to send aid to the Israelis, which surprises a lot of my friends. But graffiti is graffiti."
The justification for the harsher sentence is that a crime inspired by hate has a different effect than ordinary vandalism, both in the way it is felt in the victim's community and in the community at large. The difference is intended by the perpetrator and deserves a different response from society. Imagine the feelings, from fear to anger, created among African Americans in Jasper by what happened to James Byrd, Jr., and the shame and onus that fell upon the entire town. (The Byrd bill, however, does not apply to first-degree felonies or capital crimes, for reasons presidential candidate Bush pointed out during a debate with Al Gore: "[W]e can't enhance the penalty any more than putting those three thugs to death. And that's what's going to happen in the state of Texas"—except that Bush had it wrong. Only two of the three defendants received the death penalty; the third got a life sentence.) The toughest hurdle for hate crimes laws is that while the effect of the swastika and "Seniors Rule!" may be markedly distinct, the only real difference between the acts themselves is the thought behind them. "It's penalizing people for what the government thinks they thought when they committed the crime, based on the fact that society doesn't understand that way of thinking," says Kelly Shackelford, the president of Plano's Free Market Foundation of Texas, a conservative political group. "But you've got to let people engage in free speech, in political debate, even if you don't like what they say."
State representative Thompson's answer is: "You want to call me all kinds of names? Call me a no-good, low-down, dirty