The criminalization of hatred.

Is hatred a moral crime against humanity? Of course it is. Is there any doubt that bigotry and hatred are at the root of incalculable human suffering, death, and injustice, and always have been? Of course not. Can we reduce this dreadful scourge by legally defining hatred itself as a crime and proscribing additional penalties for crimes committed because of it?

Many well-intentioned people think we can. To this end, various state and federal measures, commonly known as anti-hate-crime or felony malicious-harassment laws, are being adopted.

Washington state adopted such a measure last year. Due to the intervention of the Washington chapter of the American Civil Liberties Union, the state's malicious-harassment law is far less restrictive than most. That not-withstanding, in King County Superior Court this past March, the jury trial of two persons charged with felony malicious harassment resulted in a hung jury.

And no wonder. Twelve good and true citizens were asked to determine whether or not two young men who, with about eight other teenagers, placed an eight-foot cross in the yard of an African-American family and set it on fire were "substantially motivated by, and intending to convey, hatred of black people."

At best, determining the motivation of a crime is a dubious undertaking. The defendants' attorney stated that he is convinced that his clients knew they were engaging in an insensitive prank but were not aware of its implications and did not intend to intimidate the family. It was confirmed that one of the defendants was a close friend of the family's son.

The defense attorney told the press: "We do such a poor job of teaching history - especially black history - in this country that it isn't that surprising that some white suburban kids wouldn't realize the significance of what happened here." To thoughtful people, this statement is the most significant and tragic implication of this incident. It reminds us once again that the only way we can bring about a genuine reduction of hatred and bigotry is through education. Unfortunately, this long and arduous process has little appeal to those looking for quick-fix solutions to profoundly complicated social problems.

Even if it were possible to determine the mindset in which a crime is committed, is it appropriate in a free society for the government to punish people for their inner motivations, feelings, and and feelings may be? Feelings and motivations, whether considered good or bad, are private and mercurial; laws are not. It doesn't take much imagination to foresee an manner of abuses of this approach. George Orwell's 1984 springs unbidden to mind.

Most state "hate-crime" laws contain at least three of the following four components (originally written and promoted by the Anti-Defamation League of B'nai B'rith):

Institutional Vandalism: This is a totally new crime, which increases the criminal penalties for vandalism if it is aimed at houses of worship, cemeteries, schools, and community centers. Some states have deleted entirely the existing crime of desecration and replaced it with the crime of institutional vandalism. The statute requires knowledge of the character of the property but does not require proof of motive for vandalism. Supporters readily admit that the law should not require proof of motivation "in order to make convictions easier to obtain."

Intimidation/Malicious Harrassment: This charge provides for stepped-up criminal penalties for acts of intimidation, harassment, and vandalism (crimes already part of the criminal code) where persons or groups are victimized by a perpetrator who is substantially motivated by hatred of the victim's actual or perceived (any or all of the following): race; color; sex; religion; age; ancestry; political affiliation; national origin; service in the armed forces; physical, sensory, or mental disability or handicap; HIV infection; or sexual orientation.

Miscellaneous Specific Prohibitions: Among these are specific prohibitions against cross-burning at any time or place, including on one's own property. Some states have expanded these specific prohibitions to include "other religious symbols, on public or private property, with or without authorization." Some include added punishments for "disturbing any religious assembly" and for theft of "any object used in connection with religious worship" Some prohibit the wearing of masks or hoods or other devices that conceal a person's identity. Although there are exemptions for holiday and theatrical productions, the overbreadth of this prohibition is still cause for concern. Obviously, several of these statutes punish symbolic speech, as did the prohibition on flag-burning struck down by the Supreme Court.

Civil Action: These provisions provide for recovery from the perpetrator of punitive damages and attorneys' fees by the victim or any member of the victim's immediate family. They also mandate parental liability for minor children's actions - a type of recovery specifically prohibited under most states' common-law tort actions. (A criminal conviction of the perpetrator is not a precedent condition for bringing this type of suit.)

Supporters of these measures believe that increased penalties will "make it more worthwhile for prosecutors to pursue convictions." The ADL advises legislative bodies that the enhanced penalties must be "sufficiently severe to have their desired deterrent impact" and that "state legislatures should increase the penalties for the broadest possible range of criminal conduct." The ADL further states that these statutes "do not suppress free expression, since they & not affect the right of anyone to hold or express any viewpoint, publicly or privately, unless that person also engages in criminal activity motivated by his or her viewpoint" (emphasis added).

A brief look at existing legislation in various states reveals a hodgepodge of new legal terms and a host of inconsistent definitions.

Under New Hampshire law, simple assault and harassment are now fourth, degree crimes if they are "bias-motivated." A person convicted of a first-, second-, or third-degree crime may receive an extended prison term if the crime is "bias-motivated."

The Ohio statute heightens the offenses of menacing, aggravated menacing, criminal damaging or endangering, and telephone harassment if these crimes are committed "by reason of race, color, religion, or national origin of a person or group of persons."

Under Delaware law, the definition of the new hate offense is broadened even further, requiring only that the crime be committed "at least partially with ill will, hatred, or bias."

The U.S. House Judiciary Committee has approved legislation increasing by one-third the sentences of those convicted of federal crimes motivated by prejudice.

The many difficulties of applying these laws are already becoming evident. For example, in Florida, a white police officer was called to a domestic disturbance at the home of a black couple. The officer alleges that the male resident became "verbally aggressive" and said, "I'll shoot you, white cracker." In addition to charges of threatening assault, the man has been charged with violation of Florida's Hate Crimes Act and could face a prison sentence three times that for threatening assault. A debate has developed as to whether the term cracker is a pejorative label and a synonym for redneck or poor white trash or a label of pride for some natives of the southeastern United States. And on the outcome of such esoteric debate hangs years of prison confinement for the accused. Is this really the kind of America we want?

A number of other state statutes are in the process of being challenged by defendants convicted under them on various grounds: that they are vague, overbroad, or discriminatory or impermissibly infringe upon the First Amendment right of free expression.

In June of last year, the U.S. Supreme Court ruled that St. Paul's hate-crimes crimes law prohibiting cross-burning was unconstitutional government regulation of free speech. The Court commented that the law singles out only certain kinds of hatred. As such, it also violated Fourteenth Amendment guarantees of due process and equal protection of the laws for all citizens. Thus, the subsequent proposals outlined above have been widened to include many additional types of hatred. But is this enough? What if a crime is found to have been motivated by hatred of the victim's material success or superior physical or mental abilities? What about the vast number of crimes undeniably motivated by vindictiveness and hatred inspired in the perpetrator due to a virtually limitless list of personal wounds and offenses inflicted by the victim?

There are sufficient legal grounds for prosecuting acts that are criminal in and of themselves: assault, arson, property damage, threatening assault, stalking, criminal menacing, and many more. A government given the power to out-law certain expressions of hatred can also punish and control certain expressions of other human emotions.

As a humanist, a liberal, and a die-hard idealist, nothing would gratify me more than the eradication of hatred from the face of the earth. But in a free society, the cure for hatred cannot be found through the police powers of the state to restrict its awful expressions. The cure lies in the minds of a free people who possess, without aid from government, the liberty to reject it.

Barbara Dority is the president of Humanists of Washington, the executive director of the Washington Coalition Against Censorship, and cochair of the Northwest Feminist Anti-Censorship Taskforce.