According to the most recent public reports, hate crimes increased in California in 2015 by more than 10%, faster than the national average. Hate crimes involving religious bias increased by almost 50%. As America's racial, religious and other fault lines deepen, we should remain vigilant about hate crimes. But our approach to prosecuting them is neither effective nor fair.
All violent crimes are bad. Violence and vandalism aimed at strangers for their race, religion or other characteristics, however, don't just harm the individual victims, they also spread fear to anyone who can see themselves in the shoes of the target.
Most hate crime laws are written to define the crime by whether the perpetrator intentionally selected the victim because of some named characteristic. California's law, for example, lists race or ethnicity, nationality, gender, religion, sexual orientation or disability as prohibited motivations that trigger enhanced penalties. Some have called for expanding that list to include crimes targeting police.
Laws that attack the perpetrator's motives are why hate crime prosecutions carry an air of "thought crime," as the jury hears evidence of what books the defendant reads, what emails he writes and what groups he belongs to, in search of evidence of racial or other hatred. Defense lawyers, for their part, sometimes end up trying to convince the jury that their client had some other violent motive not disfavored by the law.
But the perpetrator's innermost thoughts shouldn't really matter.
Hate crimes are damaging because they look like hate crimes — that's how the crime sends the message of fear. A better-designed law would simply ask the jury to consider the objective facts — such as how the defendant encountered the victim or the use of racial epithets — and determine whether a reasonable observer would consider it a hate crime. If people witnessing an incident wouldn't recognize it as a hate crime, scouring the defendant's browsing history adds nothing to public safety.
An objective observer test would also eliminate the need to list particular forbidden motivations, a sticking point in parts of the country where legislatures resist providing explicit protection for sexual orientation. If it looks like a hate crime, it is, even if the hate in question is a controversial or unusual one.
Focusing on the social nature of the harm addresses another common conservative objection: that hate crimes statutes provide unequal protection of law by treating similar acts of violence differently based on who the victims are. By limiting prosecution to those acts that are publicly visible as hate crimes when they are committed, heightened penalties apply only to truly different acts.
Removing motivation from the picture would also prevent defendants from claiming that their acts were a hoax or a joke. Hoaxes are something of a trend — in two sensational cases this year, an Israeli teenager and a left-wing journalist were each arrested for making multiple bomb threats to Jewish community centers. Hoaxes are just as harmful as the real thing, and they should be subjected to the same punishment.
A second reform would protect defendants from politically motivated overreach by prosecutors: eliminate retrying failed state hate crimes prosecutions in federal court (or vice versa). The Constitution's ban on "double jeopardy" technically doesn't prevent this — you can be tried twice for the same crime, so long as it's by different governments. But it still offends the spirit of the double jeopardy clause, and Congress can provide protections that the Constitution does not.
If federal prosecutors believe that a legitimate hate crime prosecution won't be taken seriously by local authorities, they can jump to the head of the line. But allowing them to take a second bite at the same apple simply because the first jury didn't get the result they wanted invites abuse and encourages the public to view these prosecutions as political.
These nuts-and-bolts improvements to the criminal process offer a more practical way to identify and punish hate crimes than a recent proposal in the California Legislature to create a "hate crime registry" of offenders modeled on those currently used for sex offenses, which would encourage an ever-expanding use of "scarlet letter" punishments.
With these two reforms — refocusing hate crimes laws on crimes that have the public characteristics of a hate crime and preventing hate crime prosecutions from being routinely tried twice — prosecutors can focus on effective and uniform punishment instead of political grandstanding. That's a win for everyone who wants to draw a clear line between a broad free-speech society and one where violence and intimidation can terrorize innocent people.
Dan McLaughlin is a lawyer in New York and a contributing columnist to National Review Online.