DURING THE SECOND DEBATE between Al Gore and George W. Bush, Gore criticized Bush for failing to support a bill that would have toughened the Texas hate-crime law. That measure — named after James Byrd Jr., a black man dragged to his death in Jasper, Texas — failed to pass. Bush defended the way Texas had handled the Byrd case.
The three men who murdered James Byrd. Guess what’s going to happen to them? They’re going to be put to death. A jury found them guilty, and it’s going to be hard to punish them any worse after they get put to death.
True, a toughened hate-crime law could not have added anything to the penalty in this case. But there are lesser crimes like assault or vandalism where hate-crime statutes can indeed add to the penalty. Moreover, additional categories of people can be protected. For example, the Byrd bill, which died last year in the Texas Senate, defined a hate crime as one motivated by the victim’s race, ethnicity, sex, disability, religion, or sexual orientation. And the Hate Crimes Prevention Act co-sponsored by Democratic Senator Edward Kennedy of Massachusetts and Republican Senator Gordon H. Smith of Oregon, which the U.S. Senate passed in July, would extend the scope of federal hate-crime protection beyond race, religion, and national origin to gender, sexual orientation, and disability.
Democrats are more enthusiastic than Republicans about expanding the scope of hate-crime laws. President Clinton urged the House to follow the lead of the Senate. He said that making attacks on gays a federal hate crime was one of his legislative priorities. Hillary Rodham Clinton, in her race for a Senate seat in New York, told civil rights advocates on the New York City Hall steps on August 23 that the House of Representatives ought to pass legislation strengthening current laws against hate crimes. She accused her opponent, Rep. Rick Lazio, of not supporting the enhanced federal bill forcefully enough, which his campaign headquarters denied that same day.
Few politicians of either party are willing to declare that hate-crime statues are simply bad policy. To say that sounds prejudiced. So 42 states and the federal government have now enacted hate-crime laws. Nevada, for example, adds 25 percent to a prison sentence for felonies judged to be hate crimes.
Toughening the penalty when anti-Semitism or hatred of blacks motivates an assault or a murder makes legislators feel virtuous. But such laws do not make sense as public policy for two reasons.
To begin with, they are unnecessary. As Bush pointed out in the debate, in the cases that arouse the most public indignation, conviction already results in very severe penalties: death or life imprisonment. But even with less serious felonies, like armed robbery, existing sentencing procedures already allow room for tougher sentences for more heinous crimes. Second, hate-crime add-ons increase the inefficiency of the criminal justice system by wasting scarce custodial space.
Why the laws are unnecessary is fairly obvious. Criminal statutes are written with ranges of penalties, not ordinarily requiring a fixed term of imprisonment. The purpose of doing this is to give judges the opportunity to individualize punishments to fit both the crime and the criminal. Thus judges use their discretion to punish a professional armed robber more severely than the little old lady who gets the dumb idea of supplementing her pension by holding up a neighborhood bank. The judge does not discharge this difficult responsibility alone. He has a probation staff that investigates the offender’s background and submits a pre-sentence report on the results of the investigation. When a legislature enacts a hatecrime punishment, on the other hand, it creates a one-size-fits-all penalty that ties the judge’s hands once the jury comes in with a guilty verdict.
The second reason hate-crime laws are bad public policy is less obvious. A mandatory sentence for hate-crime offenders forces judges to incarcerate a particular category of criminal for a set period, which may well be longer than he thinks the offender deserves; this is inflexible and possibly unfair. Hate-crime laws leave less room in jails and prisons for others guilty of equally serious or worse misbehavior. A judge who has presided over hundreds of criminal trials for a variety of crimes is in the best position to decide how long an offender should be incarcerated in limited prison space. In many states, overcrowding has forced prison systems to release prisoners whom most citizens consider a public menace.
Two New Jersey cases that applied that state’s Ethnic Intimidation Act illustrate both of these failings of hate-crime laws.
Case 1. Thirty-five-year-old Michael Melchione was sentenced on July 14, 2000, in Elizabeth to four years in prison, with no chance of parole until he serves two years, for throwing large rocks at several businesses in Elizabeth owned by Jews or having a Jewish clientele; he had also assaulted a Jewish woman. The Ethnic Intimidation Act overrode the discretion of the judge to take into account, in deciding on the appropriate punishment for Melchione’s offense, the degree of viciousness he evinced, his previous criminal record, his employment and family history, and his illness (he is schizophrenic). Owing to his schizophrenia, Melchione may have been guilty of equal-opportunity misbehavior rather than targeting Jews in particular. Alan Silver, an assistant Union County prosecutor, said that without the element of religious bias, Melchione would have faced 180 days in a county jail or possibly probation.
Case 2. On June 26 of this year the U.S. Supreme Court, concerned about fairness, struck down part of New Jersey’s hate-crime law in another case. Charles C. Apprendi Jr., a former pharmacist in Vineland, had gotten drunk and shot at the home of a black family in 1994. The Harrell family had just moved into a previously all-white neighborhood. No one was injured, but Apprendi received a 12-year prison term for his crime; the maximum possible sentence would have been 10 years had the judge not considered it a hate crime.
Apprendi had served five and a half years of his sentence when the Supreme Court decided that the Ethnic Intimidation Act should have allowed a jury to decide whether Apprendi had indeed committed a hate crime. Note that even after the Supreme Court decision, Judge Rushton H. Ridgway of State Superior Court could have imposed a 10-year sentence, the top of the range of penalties for possessing a weapon for an unlawful purpose. Yet Ridgway apparently had second thoughts about the severity of the penalty he had imposed in 1995. Instead of resentencing Apprendi to ten years, which would have been legal, he resentenced Apprendi, now 45, to seven years and urged the state parole board to take up Apprendi’s case as soon as possible. The Cumberland County prosecutor is also supporting a request by Apprendi’s lawyer that the board reduce Apprendi’s sentence to time served.
Judge Ridgway did not explain why he was more punitive in 1995 than he was this year. The likelihood is, however, that he was responding to public and media indignation and to the pain of the victimized family. Crime victims are encouraged to express to the court their views on the appropriate sentence. The black family whose house was fired on understandably favored the severest sentence possible. Six years later the Harrell family still feels that a lesser sentence for Apprendi now would be “a slap on the wrist” given the pain he caused.
In the Melchione case, too, victims and victim-defense organizations pressured the court for harsh sentence. Charles Goldstein, regional director of the Anti-Defamation League of B’nai B’rith, was pleased by the four-year sentence given to Melchoine. “This decision demonstrates unequivocally that those who commit bias crimes will go to jail,” he commented outside the courtroom.
In short, even without special hate-crime legislation judges are unlikely to give lenient sentences within the range provided for the offense for any crime that upsets the public, as hate crimes do. When Victor Hugo said that an army could be resisted but not an idea whose time has come, he was thinking of a good idea. But the time can come for a bad idea too. Politically correct hate-crime add-ons are just such a bad idea. They are unnecessary and have served mainly to make the criminal justice system more unwieldy and less fair.
Jackson Toby is professor of sociology at Rutgers University and was director of the Institute for Criminological Research at Rutgers from 1969 to 1994.
