Hate crime law remedy or posturing?


The defacement of Jewish temple property in Carmel with Nazi symbols seems to have created a tipping point in favor of finally enacting a hate crimes law in Indiana. Business leaders, editorial pages and politicians up to and including the governor are urging swift action in the next session of the General Assembly.

So I’m not going to call for defeat of the legislation, as I did several months ago. It would be a futile gesture at this stage.

But I do think it’s worth throwing out a cautionary note about a negative effect of such a law.

I notice that in the extensive coverage of the issue, scant attention is given to precisely how serious a problem hate crimes might be — how many there are, if they are increasing or diminishing, whether laws against them do or do not act as a deterrent.

Since such laws have been around since the 1980s and there are now versions from the federal government and in 45 states, there should be an extensive record to examine, so this is not an insignificant omission.

Part of the reason for the scant statistical evidence, I’m sure, is the nature of such crimes — how challenging it is to identify and keep track of them, for one thing, and how difficult it is to make the case in court, for another.

But I suspect a deeper cause might be the fact that even the strongest supporters of such legislation realize that the fundamental arguments in favor of it are political, not legal.

Just consider the language of proponents. They do not say, “We need to ratchet up the punishment for bigoted slimeballs so our communities are safer” or “We must deter hate” or “We should teach the intolerant the error of their ways.” Any of those would be jurisprudentially sound.

Instead, we hear, “We must send the message that Indiana is a tolerant state that values diversity and inclusion.”

That is making a statement, affirming a principal, staking out the moral high ground, and those are political objectives.

I don’t mean to make light of the importance of politics. Our political sensibilities enable us to avoid the extremes and find the common ground. It is the essence of group dynamics, aligning ourselves with like-minded people and negotiating with other like-minded groups without descending into tribal gridlock.

How much of that baggage can we demand the law carry?

The law is, or at least is supposed to be, about the individual. This nation was founded on the proposition that each one of us has exactly the same rights, not just as citizens of the United States but as human beings alive on the planet. A violation of any individual’s rights is a threat to everybody’s rights.

Equality under the law. Each law is a bright line dividing what we may and may not do. Every violation of the law requires the same punishment of the transgressors. All victims deserve the same respect and concern for their well-being.

What might we lose if we keep allowing the mission of the law to be co-opted by our group identities and loyalties? How much more of our worth will we define by the groups we belong to? How weak will we allow our foundation of individual rights to become?

The fracturing of America, its descent into warring tribes, has been extensively described and lamented, so perhaps it will be said that we have gone so far in that direction that punishing sins against the group is a logical and necessary remedy.

And I suppose that is a valid argument. But it’s not one I can make myself feel happy about.

Leo Morris is a columnist for The Indiana Policy Review. Contact him at [email protected]. Send comments to [email protected].

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