REFLECTIONS ON JASPER.

Resisting History

In the early morning hours of June 7, 1998, in Jasper, Texas, James Byrd Jr. was abducted by three white supremacists who beat him, chained him to the back of their truck, then dragged him three miles, and finally deposited what had not disintegrated--Byrd's decapitated torso--in front of a black cemetery. Seventeen months later John William King, Lawrence Russell Brewer, and Shawn Allen Berry had been tried and found guilty of this horrendous crime. King and Brewer were sentenced to death; Berry was sentenced to life imprisonment.

Many hailed this carriage of justice as a remarkable achievement--and in some ways it was. U.S. history is filled with stories of all-white juries failing to return convictions against lynchers. The three Byrd juries--two all-white, one with eleven white members--resisted the historical pattern.

The trials also set another historical precedent: King and Brewer are now the only two white men on Texas' death row convicted of killing a black American. In fact, they are only the second and third white men in Texas to be sentenced to death for the murder of a black person since the death penalty was reinstated in the mid-1970s. The first, Donald Vigneault, was sentenced to death in 1978 in Matagorda County for murdering Loretta Jones. But after years on death row, Vigneault ultimately died of natural causes in 1997. One has to go back to 1854 to find the only white person executed in Texas for the murder of a black person: James "Rhode" Wilson was put to death for killing the favorite slave of a powerful plantation owner.

Yet, despite the historical importance of the Byrd trials, it would be hasty to conclude that all is well with the Texas judicial system. King and Brewer join fifty-nine blacks on the state's death row for killing white people, and the very existence of all-white juries in this day and age should be cause for concern rather than celebration.

Most disappointing and rather mendacious is the fact that politicians and commentators have used the trials' outcomes to argue against hate crimes legislation--even though the three defendants were not charged with a hate crime. For example, Republican Senator Drew Nixon of Texas, whose district includes Jasper, explained that he did not support the hate crimes bill then under consideration by the Texas senate because of the sentence received by King. "This guy got the death penalty," Nixon said. "How do you enhance the death penalty?"

Byrd's death was tried in the courts as a murder and kidnapping--a capital offense in Texas--yet prompted Democratic Representative Senfronia Thompson and Democratic Senator Rodney Ellis to introduce a bill informally named the James Byrd Jr. Hate Crimes Act. It would have expanded the categories covered under Texas' definition of hate crimes, provided specialized training for police officers, allowed victims greater civil remedies, and increased the criminal penalties in hate crimes cases.

The Byrd family strongly endorsed the bill, appeared at several rallies and conferences on its behalf, and urged Texas Governor George W. Bush to support it. Bush, instead, was positioning himself to appeal to the conservative constituency he needed for his presidential bid. Since the Texas bill also would have protected gays from homophobic attacks, he allowed it to languish until it finally died of senate inaction in May 1999.

Ten days after Byrd's slaying, Democratic Senator Edward Kennedy of Massachusetts and Democratic Representative Charles Schumer of New York reintroduced in Congress the Hate Crimes Prevention Act. The bill broadened the definition of hate crimes and made it easier for federal authorities to prosecute such crimes. Introducing the bill, Schumer fervently advised that "the brutal torture and murder of this innocent man [Byrd] be a wake-up call," especially to "those in Congress who believe that hate crimes are overblown or that the Hate Crimes Act is unnecessary."

At this writing, both the House version (whose chief sponsor is now Democratic Representative John Conyers of Michigan) and the Senate version of the Hate Crimes Act are still pending. The Senate version is under consideration by the Subcommittee on Constitution, Federalism, and Property, while the House version remains with the Subcommittee on Crime.

There is nothing surprising about the political response to Byrd's lynching. Almost instinctively, legislators and community leaders react to noxious acts of violence with a demand for more laws with harsher penalties; in the face of any brutal crime that wholly disregards the laws on the books, we call for more laws. This follows a U.S. historical pattern of political reaction.

For example, in 1897, after seeing the real and perceived threat of mob violence in his state, Kentucky Governor William Bradley had a Republican ally propose an anti-lynching bill to the state senate. Although it passed with a strong vote of fifty-two to two, the "Act to prevent lynching and injury to and destruction of real and personal property in this Commonwealth" proved ineffective--first because it was rigorously under-enforced, then because it was eviscerated of its strongest measures by general assembly amendments in 1902.

At the federal level, stalled efforts to get an anti-lynching bill passed were reinvigorated after a dozen years of near dormancy when a rash of mob violence broke out in late 1933. Three black prisoners were lynched in Alabama in September, another black man was lynched in Maryland in October, and two white men were murdered by a mob in California in December.

The National Association for the Advancement of Colored People and other advocacy groups had led the unsuccessful effort to pass the Dyer anti-lynching bill of 1922. The bill passed a House vote but failed to reach a Senate vote because of filibusters by Southern senators. Despite the new impetus of mob violence, their efforts to pass the Costigan-Wagner Bill of 1934 also proved unsuccessful.

The House would pass an anti-lynching bill in 1937 and 1940 but, again, filibusters (threatened and carried out) kept the Senate from voting on either bill. Indeed, no anti-lynching bill of the 257 proposed between 1882 and 1951 ever reached a Senate vote.

A federal hate crimes bill raises questions about the relationship between federal and state governments and the constitutionality of federal laws covering activities that have traditionally been thought of as falling within state jurisdiction. During the 1922 anti-lynching debates, some senators opposed the Dyer bill because they felt it was an infringement on states' rights and, therefore, in the words of Republican Senator William Borah of Idaho, "wholly unconstitutional." At the time there were few pieces of legislation that limited states' rights: the 1910 White Slave Traffic Act (the Mann Act), the 1912 act prohibiting interstate shipment of prize-fighting films, and the 1914 Harrison Narcotics Act.

On the whole, the argument about constitutionality is considerably muted today because we have a longer history of successful legislation that enhances and broadens federal jurisdiction in the protection of certain civil rights. Even so, it is hard for pundits not to fall into the worn grooves of old patterns of thought. We find, sadly, that today's debate over federal hate crimes legislation has assumed exactly the same positions on the same old terrain.

The editors of the Houston Chronicle staged a media debate in 1998 on the Hate Crimes Act that sounded like it came directly from the congressional debate over the 1922 Dyer bill. The Texas newspaper published two articles: the first, authored by Democratic Representative Sheila Jackson-Lee of Texas, was headlined "Increase in hate crime calls for federal involvement"; the second, by James Jacobs, a New York University law school professor specializing in hate crimes, responded, "These acts are amply covered by state and local laws."

Echoing Senator Borah, even Jacobs--a person supposedly knowledgeable about the subject--argues that a federal hate crimes bill would only put federal agencies like the FBI in a "very difficult situation" and "put another nail in the coffin of our constitutional protection against double jeopardy."

More popular today than the constitutionality argument is the one that claims hate crimes legislation would be ineffective because it wouldn't deter or prevent crimes. Consider a representative editorial in the wake of the Jasper lynching which stated that "tougher statutes will not deter people driven by hate" because "laws are meaningful only to people who consider consequences." If one grants this, it becomes hard to imagine what role any legislation is supposed to play in society--since the same could be said of almost all laws.

Although many laws may not deter criminals, such arguments are sadly misguided about one of the primary functions of legislation. Criminal laws aren't simply about prevention and deterrence; they are, in fact, mainly about imposing a penalty--making the stakes higher for those who do consider consequences and ensuring that those who don't are removed from society so they can do no further harm.

Consider the perversely silly comments of Republican Representative Wayne Christian of Texas. Christian said he wasn't supporting the Texas hate crimes bill because he believed it not "within the power of us in Legislature to stop hate.... Only God can change the heart of man--not legislation." Why, one wonders is Christian drawing a salary for representing Jasper County when he seems to have ceded his authority to a higher power?

Again, legislation to be useful need not stop or curb the emotion of hatred. It is enough if legislation imposes a penalty on those who act on that hatred. It doesn't have to change the hearts of women and men; it only has to ensure that those people victimized by criminals with hate in their hearts have means of redress and can see to it that such criminals are placed where they can't repeat the offense.

A related and equally flimsy argument against hate crimes legislation is that it will infringe on free speech. Crimes, as one representative advocate argues, "are about what people do, not what they think." Criminals should be punished for "what they did" and not for "what may be in their sick, pathetic minds." According to this misguided argument, then, it doesn't matter that the men who killed Byrd were racist.

King, Brewer, and Berry were not tried for what they thought or the attitudes they held about Byrd; they were not brought before the court to limit their freedom of thought or speech. They were tried and found guilty of the kidnapping and murder they committed, and I believe a solid argument can be made for prosecuting criminals who commit acts of violence because of their anomalous beliefs.

A nation's law is not simply a code for defining illegalities and measuring appropriate penalties; it is also a transcript--perhaps the most significant transcript--of a society's values, a country's statement about what it holds dear and how it understands its historical evolution. In the United States where racism has played a significant role, a legal code that invokes more severe penalties for racist crimes is a resonant and worthwhile statement about the nation's growing intolerance for such beliefs.

Another argument against hate crimes crimes legislation was heard from Texas Republican Party spokesperson Robert Black during the state's debates on the unsuccessful James Byrd Jr. Hate Crimes Act. Black argued that, by creating a law that punishes those who attack others because of their race; color, disability, religion, national origin, ancestry, or sexual orientation, the state would "create a justice system where one life is more important than another." Of course, anyone familiar with U.S. history, judicial bias, and the Texas penal code would, be able to inform Black that such a system already is in place.

Texas--as well as other states--already has laws that punish crimes against certain groups more rigorously than the same crimes against others. As Senator Ellis announced in his speech to the senate, Texas has more "enhanced penalties" in its penal code than any other state. A judge or jury can increase a penalty on the basis of a victim's age, profession, physical ability, and kinship relationship to the offender.

Those who murder public officials, law-enforcement personnel, or school teachers in Texas receive stiffer sentences than those who murder farmers, carpenters, or storekeepers. Does that mean that the life of a public official is more important than the life of a farmer? More reasonably, it means that the state recognizes that certain kinds of crimes against certain groups of individuals are indicative of a deeper level of depravity and a greater risk to society and, hence, constitute a potentially greater level of crime.

One editorial that glibly assumes a historical moral values asks: "Does our society really believe that a cold-blooded murder done for one reason is worse than a cold-blooded murder done for another reason?" This needs the response of a historically informed answer: no, our society doesn't believe that. "Can anyone explain to me why the life of, say, a lesbian from Shanghai is worth three times the life of this straight white male?" asks one letter to the editor. Answer: the law, as an expression of the society's evolving values, metes out more forceful and severe penalties for criminal acts motivated by racism and other forms of hatred against specified groups as a way of addressing and renouncing a white supremacist history inscribed in previous legal codes.

Hate crimes legislation doesn't mean that white men "are denied equal protection of the law," as former New Republic editor Andrew Sullivan claims in the September 26, 1999, New York Times Magazine; it doesn't simply create "a two-tiered system of justice in which racial profiling is reversed." Rather, such legislation recognizes that, at this stage in U.S. history, the nation needs to recuperate the values of those lives historically undervalued.

After controlling for all explanatory variables other than race, the 1990 Equal Justice and the Death Penalty: An Empirical Study by David Baldus, George Woodworth, and Charles Pulaski concludes that the chances of being sentenced to death are 4.3 times greater for killing a white person than for killing a black person. In Texas, recall that there are fifty-nine blacks and two whites on death row for interracial murders. Statistical studies, simple facts, and a historically aware understanding of the law better expose what the nation values and whose lives are in fact protected.

Thus revealed is the need for a set of laws that address this imbalance and work toward the establishment of a legal system in which all lives are equally valued and protected. More constructive than the current public debate on hate crimes legislation, then, is a debate that asks new questions, larger questions, about the law and its function. Instead of pondering whether such bills are significant legislative events that might actually prevent crimes or are primarily symbolic acts unable to withstand much public scrutiny or judicial review, we would be better off asking what such laws signify, even if they appear to be unenforceable.

It is, of course, true that laws have to be enforced, that provisions have to be in place to make enforcement possible and effective, and that we should be wary of all acts of legislation that merely constitute futile and deceptive gestures instead of meaningful action. Nonetheless, we also have to consider laws in less pragmatic terms and discover in what ways they can, do, and should operate to articulate the morally acceptable qualities we expect and strive for in our society.

The United States was founded on principles that were clearly at odds with the practices then permitted and protected by law. (The concept that "all men are created equal," for example, contradicted the legally recognized institution of slavery.) That contradiction didn't invalidate those principles but instead made them an inducement for future reformers to create a polity less at odds with its best ideals. It is that symbolic role that our laws continue to play today.

In light of U.S. history, our discussion of hate crimes legislation should be a robust give-and-take about the kinds of civility, the level of tolerance, and the quality of life we expect and would protect in our relations between people. The most obvious benefit to raising the level of such discourse is that we create an informed citizenry that greatly enhances the health and assures the future of a democratic republic. In addition, such dialogues become forces for progressive change--both in the straightforward sense that they promote a wider appreciation of the issues at stake in the legislation, and in the rather ironic sense that they can even become deterrents to the kinds of crime under public scrutiny.

For example, a Mississippi jury in 1934 deliberated for six minutes and returned a guilty verdict in the trial of three black men charged with raping a white woman. The judge condemned the men to death by hanging and immediately urged the victim's relatives and the other white people gathering around the courthouse to refrain from lynching the three men. Why? Because, the judge said, that would given Northern representatives the kind of evidence of vigilante justice they needed in order to pass an anti-lynching bill then pending in Congress--and an anti-lynching bill, he concluded, would "destroy one of the South's cherished possessions: the supremacy of the white race."

Here, the agents of the law, represented by the Mississippi judge, prevented a lynching in order to prevent Congress from passing a law that would prevent lynchings. A nation, however, needs a more fool-proof method of decreasing the number of hate crimes--not to mention making them a thing of the past--than relying on wily bigots inspired by vigorous public debate.

What caused lynchings to decline in the United States was a set of historical factors, including changing regional social conditions, a shifting and broadening of international economic horizons, and a growing national intolerance. What will have a prohibitive effect on modern hate crimes is likely to be another, and probably similar, set of historical factors. What legislators and their constituencies ought to do, therefore, is promote measures that will foster these kinds of developments.

Following the Hate Crimes Statistics Act of 1990, the FBI collected and compiled data that shows a troubling increase in hate crimes--what the congressional bills now pending don't exaggerate when they call it a "serious national problem." The FBI reported 4,558 hate crimes in 1991; 7,587 in 1993; and 8,049 in 1997. These numbers are deeply disturbing by themselves but even more worrisome when we consider that they represent the regular reporting of only between half and three-quarters of the nation's law-enforcement agencies (51 percent in 1991, 84 percent in 1997) and that only a meager percentage of hate crimes are ever reported to the police. This is also true of Texas, where the Department of Public Safety reported 331 hate crimes in 1997 and around 2,300 for the five years since it started collecting data.

While it is clear that this rising tide of violent crime calls for an immediate strategy to stem its force, it is also crucial that a serious legislative agenda include not only the criminal bills now pending but--even more important--a set of bills to address the root causes of hate crimes.

At a conference on hate crimes in August 1998, Acting Assistant U.S. Attorney for Civil Rights Bill Lann Lee pointed out that the majority of hate crimes are committed by people raised in noxious conditions of poverty, thereby suffering the attendant features of broken families and incomplete educations. What is needed, in other words, is legislation that addresses and ameliorates the economic and social conditions that lead to increased criminality.

The brilliant NAACP lawyer Charles Houston once commented that to agitate for anti-lynching legislation alone without demanding other congressional action on economic development would be "to fight the manifestation of the evil and ignore its cause." Precisely the same can be said today about hate crimes legislation.

In its findings, the Hate Crimes Act currently under consideration in Congress points out, "Violence motivated by bias that is a relic of slavery can constitute badges and incidents of slavery." For some, I'm sure, such language and the very reference to slavery in this modern age, decades after the civil rights movement, will seem overblown, excessive, and emotionally overdramatic. For others, however, such historical consciousness in our public officials can never be sufficiently applauded. The United States should aspire to establish a set of laws wholly aware of the ways previous institutions continue to insidiously affect our present social order.

For that reason, a federal hate crimes bill is essential. But it must also be supplemented by another set of measures that address and make efforts to alter the causes and the conditions that breed hate crimes.

There may always be racists in our society whose beliefs motivate them to commit violence. But laws are not implemented solely to contain the worst in our communities; they are also there to prevent the worst from showing itself. Perhaps the murder of James Byrd Jr. could not have been prevented but, collectively, perhaps we can prevent another John William King, Lawrence Russell Brewer, and Shawn Allen Berry from murdering.

Ashraf H. A. Rushdy is an associate professor of African American studies at Wesleyan University in Middletown, Connecticut. He is currently writing a study on violence and race relations in contemporary United States. His, e-mail address is [e-mail].