Tyler and Trayvon

The tragic deaths of two teenagers raise questions about hate-crime laws and our urge to fix the human race.

Comments: 189

  1. I think part of what we may be trying to do with hate crime laws is to prevent ourselves and our country from lapsing into a state of mind in which bias and prejudice grow and inform the actions of the state. Maybe we don't trust ourselves that we won't be bullied by a biased majority into accepting treating some segments of the population as unworthy, and so we stake out our positions explicitly in laws to emphasize that bias is wrong, according to our collective beliefs. We've seen similar things happen in other countries within fairly recent history, and we have our own history of slavery. Maybe we have the humility to put measures in place to make it harder for us to allow such things to happen again.

  2. The moral guidance you seek should not be provided by the law, but by religion or better still the family.

    One man’s inference of another’s hate is no basis for legislation. The law is to punish actions in measure of their outcomes and to go no further. We can never be confident of another’s motivation, and neither can the perpetrator himself.

  3. "fashioning a narrative from the hate-crimes textbook — bellowing analogies to the racist nightmares of Birmingham and Selma, as the reliably rabble-rousing Reverend Sharpton has done — is just political opportunism. This is the kind of demagoguery that could prejudice a prosecution, or mobilize a mob."

    Aren't you a little late to the game? It took you an awful long time for you to notice that something terrible happened in Florida. You wouldn't know about it now, if it weren't for the Reverend Sharpton's of the world. Trayvon Martin's death would never have impinged on your comfortable world. Personally, I prefer "political opportunism" and "demagoguery" which are serving a purpose, to pious pontificating from people who have no skin in the game, literally, and whose only apparent purpose is make themselves appear erudite.

  4. I have thought there is some sort of balance going on between the energy needed to be expended to have access to a bully pulpit like a NYTImes column and the energy needed to be expended to understand through living it the life of the disenfranchised. I have thought the key to resolving this state of affairs is an openness to hearing what the disenfranchised have to say in their own voice.

  5. I think Mr Keller’s take is both cogent and measured, as well as erudite.

    We don’t know that something terrible happened, and wont until detailed inquiries have been completed. Most of us also don’t know when Mr Keller formed his opinion on the matter, nor can we be sure of his motives, but it’s a fair bet that the ignorance and arrogance you exhibit, if shared by many others, will lead to a further decline in the cohesion of the United States and the esteem in which it is still held by most outside.
    .
    One man’s inference of another’s hate is no basis for legislation. The law is to punish actions in measure of their outcomes and to go no further. We can never be confident of another’s motivation, and neither can the perpetrator himself.

  6. Ross Williams,

    Thank you for pointing out the "late-to-the-game" and "skin-in-the-game" factors.

    You spoke for me and so many anonymous others. Thank you.

    Martin Stein even got me to reconsider Sharpton.

  7. Christopher Hitchens related an experience when was walking alone at night in a white, affluent LA neighborhood and was followed by a police car which pulled up beside him, an officer saying "Who are you and where are you going". Hitchens never broke stride and responded "Who's asking?" and kept walking. The police drove away. He not thrown to the ground, handcuffed, searched and checked for outstanding warrants as African American male would be as part of official NYPD policy which has institutionalized racial profiling. In fact for the act of "sassing" an officer the person might be arrested or taken to the station

    Do you think the fact that Hitchens was white and spoke with a British accent had something to do with his suffering no consequences for totally ignoring the police and having an "attitude?"

    I worked with a black women whose brother was stabbed to death in a southern state in the 60's for dating a white women. This case was swept under the rug. How would you feel about hate crimes if that was your brother?

    Your comments about Al Sharpton are also in my view biased and rather passe.
    The Sanford police tried to sweep the Martin case under the rug. The family's attorney invited him to assist them. The guests on his MSNBC show included
    a white former Florida US Attorney, white Florida homicide prosecutor, white criminal law professor and former NYPD officer. Ed Shultz and Lawrence O'Donnell were equally outraged

    You sound smug, arrogant and elitist.

  8. It must really gall you Mr. Keller that Rev. Sharpton has the power to mobilize the entire nation against this outrage and have PEACEFUL protests take place across the country.

    Are you aware that Mr. Sharpton was stabbed in the chest literally an inch away from certain death leading a march through Bensonhurst Brooklyn protesting the murder of a black 16 year old who was beaten to death by baseball bats by a band of white males of Italian American origin for the "crime" of responding to an ad for a used car. The match that lit the flame was literally the spreading of the word that there were black people in the neighborhood.

    During the march in which Rev. Sharpton was stabbed, people held up and hurled watermelons at the marchers as well as screaming the usual N word and holding up pictures of monkeys and apes.

    In addition, Sharpton, in an act that I myself could not do, visited his attacker in prison and forgave him to his face. This man was so overwhelmed by this act that he became a Christian and has undergone a character transformation

    There are many for whom this topic does not summon discussions of John Locke or Stuart Mill, but are a matter of life and death and the mental well being of loved ones.

    Hate crime laws are necessary to inhibit the actions of individuals whose minds are polluted by racist, homophobic, religious bigotry etc.

    I wonder what the daughter of the Iraqi-American women murdered recently because of her origin would think of your column?

  9. Mr Sharpton also had on a white homicide detective with thirty years experience who point by point demonstrated the total incompetence of the Sanford police department's handling of this case where a mind bogglingly amount of basic police procedures were ignored. Another former white NYPD police officer now a professor at John Jay School Of Criminal Justice came to similar conclusions stating bluntly that the actual processing of the initial crime scene is a checklist that is done routinely, that obviously the Sanford police failed to perform out of negligence, incompetence or political motives, perhaps all three.

    Shame on you for trying to imply that Mr. Sharpton was promoting race division or race hustling. He was coming to the aid of a family whose son's death was being swept under the rug at their request.

    If you think that only black people are outraged by these events you are sadly mistaken.

    Maybe it's time for you to move over to the NY Post or FOX even though people over there might think that John Stuart Mill is the CEO of a cereal manufacturing company.

    By the way did the murders of Chaney, Schwerner and Goodman constitute a hate crime in your esteemed opinion?

  10. Thanks for pointing out the egregious dig at Al Sharpton, who whatever his faults has been consistent in his cause and -- due to age or experience -- is I think now more effective because he is mellower and more even-handed.

  11. In Germany and broader Europe under the Nazi's six million murdered Jews were victims of hate crimes. They were killed for the simple reason that they were Jewsand this hatred was the raw justification for their extermination.

    All of my parents relatives were killed by the Nazi's in Europe but for five people who survived the camps and emigrated to Israel.If you Mr. Keller have had in your personal life or family history the mass murder of loved ones simply because of their ethnic and religious origin, you might not hold such an intellectualized view when contemplating the concept of a hate crime.

    Ideas are like viruses and can infect individuals and nations to epidemic proportions has have been evidenced in Germany, Rwanda, the Sudan and right here in the American South for decades.

    I think hate crime legislation is necessary because of the special nature of such crimes, the origin of which resides in the mind of an individual and can spread insidiously and cause enormous damage below the surface to an individual or a community only to be acknowledged after a tragic event like a hate based murder or suicide.

    Hate crimes are like mental speed limits or speed bumps.. Many individuals would speed recklessly if not for laws against doing so. There are millions of citizens who for various reasons have minds filled with hate against one group or another and these laws are a deterrent.to and punishment for acting on these thoughts which pollute civil society.

    .

  12. In your otherwise clear argumentation, are you not possibly confusing individually motivated 'hate' and racist crime with genocide or crimes against humanity? The international court in Den Haague exists to deal exactly with such crimes, and although an almost always arduous and frustratingly lengthy procedure - just ask Carla Del Ponte -, it has proven 'successful' in many cases.

    To inhibit the perpetration of crimes of bias and/or hate, there are anti-racist laws in some countries, for example in Switzerland. Although hotly debated for the inherent difficulty in conviction as well as the possibly inherent contradiction with freedom of speech aspects of a democracy, it does serve (at least to some extent) as a deterrent and keeps the question of bias and racist-motivated activity alive.

    There is no way to prevent crimes of hate because we cannot prevent individuals from hating due to their ignorance, fears and psychological weaknesses or illnesses. The best we can do is persist in trying to identify such crime motivations and to punish the crime to the full extent in the already existing legal system.

    I might add that the 'Stand Your Ground' laws have no place in our legal system.

  13. Hate crime legislation is necessary but legislation has to be passed in a form that not only enables control and prosecution but also does not open the door to extremes that end up causing that same legislation to be unenforceable or that produce opportunity for abuse or harm to the people in the society that seeks to have such legislation.

    Throughout the legislative history of the US, and especially in this current generation, reactive legislation leading to laws have produced the types of dilemnas we see in the examples the author used in his article.

    I do not think it is a correct comparison of the hate that produced the types of genecide you site in Nazi Germany, or in the Balkan War or in Rwanda or in the Southern States of the US.Certainly hate crime laws in those instances would be clear and their violations would have been easily established.

    In both the cases sited in this article what we see is the application of a hate crime law in what in the first case is truly questionable (albeit that the release of the video was an incredible act of irresponsibility) and in the second instance, the facts have not been fully determined and no case or charges have been issued yet, other than in the court of public opinion and the media frenzy. Neither of these instances reflect what hate crime laws were designed to deal with or punish.

  14. Martin Stein, I read all your comments, please put these together and write a column for NYTimes. Bill Keller can have his view, but this time he is hard to agree with. You have it right. Thank you for for the information about Rev. Sharpton, I didn't know.

    There is so much wrong in this society, no reason to become so philosophical that you look like you are out of touch, Mr. Keller.You are not a professor who is taking the opposite view just to be the devil's advocate.

  15. Hate crimes legislation exists for one reason, and one only: to demonstrate to people that hate is not tolerated in America.

    It's unfortunate that we had to pass a law, but it was needed... apparently a sufficient number of parents neglected to teach their children the simple truth that all people are created equal.

    I share your indignation with the "politicization" of the deaths of Trayvon Martin and Tyler Clementi -- but for the opposite reason you do; the polemics of the (R) inflame their supporters to reject the underlying "wrongness" of these actions -- or, what's worse, to embrace the hatred as acceptable or admirable behavior.

    Mr. Keller, I certainly did not expect this kind of simplistic analysis from you.

  16. I, too, was taken aback, and my mind wanted to rescue the essay here by thinking perhaps it could be a clever manipulation for us to think otherwise. But even if that were so, I don't think manipulating people towards a position ultimately gets us where we need to go, because at some point people notice they've been manipulated and then mistrust negatively impacts the relationship.

  17. You assert that hate laws are needed because some parents "neglected to teach their children the simple truth that all people are created equal". So, by your reasoning, horrific crimes (or, in some cases, horrific outcomes) of a specific nature that target a specific group of victims should quality as hate crimes?
    Most of these laws were triggered by acts of brutal violence against homosexuals and people of color in order to bring harsher penalties to bear on the motivations, as well as the actions, of those convicted. But don't serial rapists and pedophiles hate and debase women and children with equal fervor and fierceness?
    I think classifying crimes of a homophobic and racist nature as more despicable than crimes against women (and children) is iself a pretty despicable and sexist action. Perhaps there should be a special category for the crime of misogyny. (Of course, then we'd have to build a lot more prisons.)

  18. Nicely written.

  19. Sanctimony and hypocrisy are intrinsic elements of a ruling class that paid Indians less than a penny on the dollar for their property held in trust. Those who refuse to pass the Equal Rights Amendment guaranteeing equality in law to women extend and elaborate the sanctimonious principles which confer inequality and exploitation. In short, the establishment which evolved out of Western culture is rife with unethicality. In officially proscribing violence predicated on hate, we as a nation reject such behavior even as some politicians strive to maintain the gulf between minorities. These laws aren't indicting identity, but behavior. Identity is nevertheless subject to discriminatory practice in law and social expedients. Today one risks incarceration and deportation by merely failing to carry identification. If money is speech, certainly identity is speech and should be protected. But Americans clearly exercise the right to bigotry and hate. Any society will reject those who do not conform to purely superficial and temporary standards of dress, ideology, majority cultural values and even financial affluence. But a country based on the pursuit of enduring through justice cannot abide violence derived from exclusive intent. Although the American ruling class is still more of a country club than a country, the sanctimony endemic to such hierarchies of class and ethnic division is in denial about its bigotry.

  20. One man’s inference of another’s hate is no basis for legislation. The law is to punish actions in measure of their outcomes and to go no further. We can never be confident of another’s motivation, and neither can the perpetrator himself.

  21. Martin,

    Murder is an activity that is illegal. Hate is not an activity, and as such cannot be made illegal unless one is willing to give the government the power of controlling and restricting our thoughts. The power to control and restrict implies the power to search. Let that sink in.

    Mr. Keller is not advocating for racism, bigotry, murder, or anything else people here seem to think he is. He is merely asserting that there is something fundamentally different and wrong about criminalizing a state of being, a thought process.

    Hate based on bigotry is an aggravating element, perhaps, but it ought not to be criminal. When we give the government power over our thoughts in this way it is easy to see the perversion that can result, either in the hands of legislators or juries.

    It should be enough that murder is a crime. It should be enough that a factor that aggravates murder should increase the penalty. But it should be far too much to presume a state of mind is against the law. If it is, then we are not too far from imprisoning people for merely having certain thoughts.

  22. Why should we be hesitant about criminalizing a defect of character? Some defects of character are criminal. An inability to conceive that one has made a mistake is a defect of character,and if the mistake was a criminal mistake then the defect of character that makes it impossible to conceive that one has made a criminal mistake, is itself criminal. Otherwise the ability to practice self-delusion excuses everything.

  23. Dave, I'm sorry, but your logic fails when considering a person with the character defect who *does not* commit a crime. If the character defect itself were illegal then people could be prosecuted merely for having it. But that is not the case.

    This assumes that the character defect existed prior to the act of committing a crime, which I think one could presume is a prerequisite for committing it, otherwise it is not a defect in character.

    We also have the "criminally insane"; those people who are unable to understand the meaning of their crime. They exhibit this character defect and it actually serves to mitigate their crime and prevent punishment within the prison system.

  24. There is no such thing as a character defect. Everything that you have in you was given to you against your will by Nature itself. You had no choice in being born. But you're alive. You had no choice in where, and yet you find yourself where you are. You have no choice in any of your physical/mental/emotional limitations. All of your limitations are a consequence of your design. And each is unique.

    The problem is not that we have the impulses and tendencies that we do. The problem is that we don't know how to correctly use them so that what comes out of us is good/beneficial as opposed to destructive and corrupted.

    In order to work correctly with what is in you, you have to understand your nature. You have to know what you are, where you come from, and why everything happens. This isn't some simple 101 course. But without the kind of understanding needed by a Human being, a person is at the mercy of the forces that rise in him. If he cannot control his animal, then his animal will control him. This applies to women as well of course.

    Criminalizing ignorance will only strengthen and hasten our descent into suffering and baseness. We must learn to be Human. But will we? http://www.perceivingreality.com

    Peace to you and yours.

  25. Without hate crimes legislation, Mr. Zimmerman would have no chance of being arrested. He still hasn't been arrested, mainly because of the way the Sanford police acted after the killing. We should never stop people from expressing their views, no matter how repugnant; however, when those views turn to violence against specific racial or ethnic groups, the person perpetrating such acts violates the basic tenets of our nation, namely, the right to life, liberty, and the pursuit of happiness. Hate crime laws are far from perfect, however, if we are looking for perfection, the criminal justice system is the last place to look.

  26. The Trayvon case is really much more about a horrid gun law in Florida, i.e. stand your ground. But it also demonstrates how profiling, racial and/or other, can go horribly awry under this sort of law. It is far more likely that the law will be abused and lead to senseless killing when coupled to racial profiling. Whether profiling is a hate crime per-se is not clear to me, but it does illustrate the toxic mix between such an awful gun law and racism.

  27. In my opinion it's a mistake to lump Tyler's and Trayvon's deaths together. Ravi didn't kill Tyler Clementi although his mean and childish prank may have contributed to his suicide. Zimmerman initiated contact with Trayvon and shot him dead. However, the real culprits are the NRA, ALEC, and the Koch brothers and others who fund their mischief and the gutless legislators and governors in the 25 states which have passed "stand your ground laws," along with members of Congress who have failed to pass and see to the enforcement of effective laws regulating the manufacture, sale, ownership and use of handguns. The notion that arming the public is the best way to assure public safety is ridiculous on its face.

  28. I suspect, although I cannot prove it, because I have no evidence whatsoever, that Bill Keller has not experienced psychological or physical torture (sometimes weakly called "bullying," other times murder). He is white, I think, probably Christian, American, handsome, educated, and at least middle-class. ...While we cannot stop prejudice, abuse, hypocrisy, or fatal violence by legislation, we can through laws proclaim the minimum official standards of a democratic civilized society. Hate crimes are essentially different and worse than non-hate crimes, even if both lead to the same results: death. Hate crimes destroy a nation from within, like plague. Hate crimes mutate the human spirit of both perpetrators and victims...Hate crime laws do not stop hate crimes, or the psychological reasons for hate crimes, but they do serve as a serious warning that hate crimes are absolutely not condoned or tolerated by a society.

  29. It's awful to be hated because you're black or gay. It's also awful to be hated because you're fat or ugly. It's awful to be hated, period. Hate crime legislation ranks some kinds of hate worse than others. It invites contests among groups for the status of being specially protected by the law and inevitably leaves some groups out.

    Hateful motives should matter in sentencing. I don't buy Bill Keller's argument that taking them into account punishes people for their thoughts alone or for things they can't help. But evil motives are innumerable, and they come in different forms and degrees. They should be judged one case at a time.

  30. What you are asking, Mr. Keller, is whether hate against a group seen as "the other" is more heinous a motivation for committing a criminal act than is greed or revenge. Sorry to burst your supposedly objective analytical bubble, but it certainly IS. We do not punish, nor have we ever punished, criminal acts solely on the physical actions themselves--intent is always a determinant of the extent of punishment. It is dispassionate, cold and remote to pretend that all criminal intent is created equal and that the only difference is in the intensity of one particular perp's mens rea versus another's, rather than in the nature of various types of intents. In other words, malice is always more vicious and deserving of punishment than is mere cupidity. I use "malice" here not in its legal role as a term of art, but in its general definition of extreme, targeted ill will. You also err in your assertion that bigotry and hatred are involuntary mental conditions rather than conscious thought processes. Do we (and have we always) considered conduct motivated by bigotry and unjustified animosity against an entire group of people based solely on who they are to be more reprehensible than the same conduct motivated by greed or revenge? You bet. If you refuse to admit that, or worse, to accept that, perhaps you should confine yourself to your dry hypothetical how-many-angels-can-dance-on-the-head-of-a-pin bubble rather than joining those of us in the real world.

  31. Keller: yes, of course. Feeling alarmed, indignant, and morally right is one of the most natural groupthink traps. To your example, add affirmative action, with the same inherent contradictions. Trying to undo an obvious wrong we inadvertently walk over principles. But be optimistic, at least democracy can be self-correcting.

  32. If the theory behind hate crime law is wrong, then the theory behind Stand Your Ground law must be wrong as well. If hatred in the mind of a perpetrator is irrelevant, then fear should be too. (Particularly, of course, if that fear is caused by bigotry in the first place.)

  33. Wow, excellent point.

  34. Mr. Keller is one of the few who makes the fundamental point that it is what you do, not what you think, which is the business of the criminal law. No matter what the hate is, the fundamental issue is proving a crime took place,e.g., George Zimmerman. Hate issues simply confound the entire process.

    The Zimmerman case brings up the issue of distributive justice. Whether rightly or wrongly he was not charged, but he clearly shot a man. Ravi did not shoot a man, but his disgusting conduct coupled with the bias filler will likely ruin his life. Clearly Zimmerman's act is more serious than Ravi's, but the consequences are severely divergent.

    The American criminal law system is rampant withsuch distributive injustice,and the hate kicker simply provides an exponential opportunity for two persons guilty of the same crime to receive incredibly divergent sentences. And as in Mr. Keller's example, the more severe act is likely to walk, an invasion of privacy may receive over a decade in an American prison.


  35. The saddest thing is children are not born to hate.

    Hate requires the tutelage of a reprehensible adult.

  36. It requires an adult to identify a target and channel the animosity, but it is ingrained in human nature to seek group identity, and if everyone is 'in' then nobody's 'in.' If you're going to be best, there has to be someone you're better than. Like it or not, it is automatic to identify 'self' and 'other,' and to create hierarchies with oneself at the top. That instinct, in its positive form, is patriotism and loyalty. It was vital to create cohesiveness in competing hunter-gatherer groups.

    Contra Rodgers and Hammerstein, you don't have to be taught to hate and fear. You just have to be taught specifically whom.

  37. Third try to get this through ... there is a well founded school of psychological theory that posits we are pre-wired to divide into 'us' and 'them' and to valorise our own tribe by demonising 'them.' This was an advantage to early humans who needed to cooperate to hunt but also to compete with other groups. Rodgers and Hammerstein said you have to be taught to hate and fear; not so. You're born knowing how. It's just a matter of being taught whom. I'm sorry if this comment is not PC enough, but it's true.

  38. Not sure why this didn't make it, but I'll try again. There is a very well established school of thought in psychology that indicates humans are indeed born with a predisposition to divide into 'us' and 'them' and to devalue 'them' as a way of forming group cohesiveness with 'us.' Such a predisposition promoting such cohesiveness would be vital for cooperation within a tribe of hunter-gatherers - homo sap alone in primitive times was homo sap dead - and also for competition among groups of hunter-gatherers.

    Rodgers and Hammerstein notwithstanding, children don't have to be taught to hate and fear. They just need to be taught whom

  39. I must say Mr. Keller, that as far as I know, you are white, male, Christian, heterosexual. You are in a position of great prestige, influence and financial security, to put it mildly. Therefore you may not know what you are talking about.

    You are at the top of the hierarchy. You belong to the group that never gets profiled, lynched, raped or massacred. I can’t even think of any nasty insulting slang words commonly used for people in your group.

    Whether the sentences are fair is a separate question, but
    hate crimes must be explicitly identified and disapproved of by laws. That sends a message necessary to a civilized country. Hatred of groups is easily rationalized by susceptible people, manipulated by media and politicians. Remember that one reason so many racial murders took place in the South, unpunished, even in our lifetimes, was that the officers of the law, including judges, and governors, sent the message that you could rationalize murder if it kept the white supremacists version of law and order.

    So these hate crime laws may seem unfair or going too far. But if we didn’t have them, it would be much, much worse—as our history shows.

    Hate spreads viruses that pollute society. Hate on the basis of groups motivates people to commit crimes they otherwise wouldn’t commit, except that the victim is identified with a hated group.

  40. "You are at the top of the hierarchy. You belong to the group that never gets profiled, lynched, raped or massacred. I can't even think of any nasty, insulting slang words commonly used for people in your group."

    How about "Romneyesque?"

  41. No one who has accomplished anything in life has accomplished it other than through privilege, is that your thinking?

  42. While much of wbat I've seen and heard of Zimmerman's actions turns my stomach, Mr. Keller's point is that our law demands we punish a guilty mind. Once he's charged and brought to trial, hopefully we will have an unbiased judge give a jury instructions that will guide them in making that determination. I can understand Mr. Stein's anguish, but I ask him to recall the movie "12 Angry Men".

  43. I recall listening to Sarah Palin's speech at the Republican convention -- appalled at the innuendo and ugliness. The symbol of gun sights and "take back the country" veiled language and outright hate speech has only escalated on talk radio (Rush Limbaugh), Fox News, and other outlets -- even at presidential candidates events. Enough. For the sake of America, for the sake of decency. Enough.

  44. Thank John McCain for the hate that has transpired from this wicked woman. Romney will be looking for his hate-driven running mate soon--let's stop calling these people "ultra-right" conservatives. There is nothing conservative about hate and intolerance. Call it what it is.

  45. No one is charged with the crime of being a racist. Penalties are increased for those whose acts are based on racism, not the racism itself. This is a fundamental distinction in the law, as intent is an element of most felonies.

  46. I want to second this one. Keller wrote: "And yet the government is authorized to punish you for thinking those vile things, if you think them in the course of committing a crime. "

    This seems to me to be backwards. The hate is an aggravating factor in the crime. Ask yourselves this: is a person who hates and fears black skin more or less likely to act against that skin color?

    To answer that question, you may need to have actually met a truly rabid racist at some point in your life. Their racism/hatred seethes within them and they work themselves, quite literally, into a lather over it at times. Does this elevated state of animus towards a particular person drive a subsequent act of destruction against that person?

    I think yes. I think history is replete with evidence that supports this.

    We don't punish hate. We punish crimes committed in the act of validating hate more harshly than a crime committed in pursuit of more personal motivations. The reason is purportedly because that act of hate has historically motivated others to act in kind.

    It seems to me a crime of passion or greed is personal. A crime of hate is social. Therefore, deserving of special attention.

  47. I think the thought crime label is a little bit disingenuous as no one is punished for the thinking without the doing. On the other hand, the thinking gets you extra years in prison. I don't know how the various statutes are set up, but my preference would be for the proscribed hated to be an aggravating factor, not a crime in itself.
    If such evidence has to be established beyond reasonable doubt and if there were strong limits on prosecutorial discretion to stop prosecutors using the law opportunistically, then I wouldn't have a problem with it.
    But such laws do raise hard questions and it seems unthinking of many of the comments to assume racism or elitism on the part of Keller.

  48. And yet the government is authorized to punish you for thinking those vile things, if you think them in the course of committing a crime.

    No, the government punishes you for /acting/ on those thoughts. It is a fact that minorities are often treated differently just because of who or what they are, that is a real problem. And the government has every authority and moral obligation to correct that very disturbing trend (well, continuation). So as for Hurd, the intent here is to follow up on these despicable urges (and often even being proud of it.) That's a choice, you could have gone and looked for help with your troubled mindset. Perhaps the government should also mandate a harsh course for such people, similar to what drunk drivers get.

  49. We have to see how fast the T.M. case leaves the front pages. I suspect when it does, this isssue will give way to another common sense occurance that will get the national attention. In other words something that we at home would handle differently and certainly more expediently. We have a history of draggin out such thing in the public forum.
    For instance, possibly in the area of hate crimes, how about Rushie L. and his rant against one woman, when I suspect he was talking about all women. They can't be high on his list having tried marriage, what 4 times, and yet he continues to punish women by staying around and somehow getting women to overlook his obvious hatred toward them. I guess the victims need to learn to stay out of his "gated community", you know, the one right behind his forehead.

  50. Mr. Keller - no one can legislate your conscience or belief system. What the hate crime law does is in effect prevents you from acting out your belief system.

    I am really disappointed at your superficial analysis which ignores years of history and blithely skips over a basic tenet of the Constitution - that one has the right to pursue life, liberty and happiness.

    Someone deciding that I should not co-exist with him/her because my skin color is different or my faith is different is taking away my right to life.

  51. Life, Liberty and Pursuit of Happiness are stated in The Declaration of Independence and are therefore not guaranteed by law.

    But I do like your point. It's just that my soap box is reminding people that the Declaration is nothing but a well written Dear John letter to George III.

  52. There is nothing superficial in the analysis, it is spot on. And another thing, special victim categories should be seen as a violation of equal protection, or don’t you like that part of the constitution?

  53. A little accuracy would help here. 1. That's not in the Constitution. It's in the Declaration of Independence, which has a very different legal status. 2. The Constitution prevents *the government* from taking away one's right to life, liberty, and the pursuit of happiness. (Crime statutes prevent someone else from taking your life, and that's what's in question here.)

  54. If bias laws are a bad thing -- and they are for the reasons Keller dispassionately lays out -- why should we accept that "they are probably here to stay" as he states in his concluding sentence? Aren't those of us who are responsible and moral citizens obliged to overturn bad laws?

  55. Professor Hurd's questions go to the heart of the matter. “Why don’t we use the power of the state to make people less evil? . . . The law now regulates not only what we do, but who we are.”

    Keller is right to feel queasy about legal overreaching. No laws, not even our celebrated Constitution, have ever been enacted to make us perfect. Our founding fathers (who legalized slavery) were only trying to keep us from becoming worse than we are.

  56. A society comprising mostly rational people may not punish individuals for ill-conceived thoughts, or biases for other members in the group. But when they put their thoughts into action the society is well justified for slipping the cuffs on the miscreants. Otherwise, it would be impossible to form and maintain a diverse society.

  57. The Trayvon situation is straight forward. Conservatives have been legalizing murder by encouraging their faction to carry guns everywhere. To make any violent act for their faction be called self-defense. And to see most ethnic groups, particularly Aftrican Americans out at night as criminals.
    If the two people in this case were reversed, Trayvon would be in jail under arrest. The fact that Zimmerman is Hispanic confuses the objectives of conservatives. But does change their objectives to convert our communities into wild west law and order where the biggest gun rules.

  58. Agreed. They legalized guns, now they're legalizing murder.

  59. May we hear Mr. Keller's response to the well reasoned comments above that point out that hate-crime laws have an essential role in disrupting the link between hate and crime? One flaw in his reasoning is the assumption that anti-social biases are ingrained and immutable. They're not. Laws should be evaluated by their positive or negative value in the real world, and hate crime laws compel bigots to face the harm their bigotry may do to both themselves and their potential victims.

  60. This column is neither well-reasoned nor sensible. The fact that you can cite a professor, Heidi Hurd, who wrote something quite silly is of little help. It may well be the case that people do not easily stop hating, but the point of hate-crime laws is to help prevent them from taking their hatreds to be justifications for horrendous actions that without the hate they wouldn't even contemplate.

    Hate crimes by their nature victimize whole categories of people, placing them in constant danger and force all but the most courageous of them to live in a fear you do not seem even to know, Mr. Keller, and apparently lack the imagination to empathize with. This kind of crime stunts and narrows the lives of all who by membership in any other-defined group suffer from prejudice though no fault of their own.

    Laws against hate crimes amy well be only mildly effective, but surely they are better than having the body politic do nothing in the face of them. These laws eat the very least signify to the potential victims the so I hope you rethink your trivializing and self-satisfied attitude.

  61. I have heard hate crimes described as a form of terrorism. Their effect is to make the targeted group feel less safe, less able to participate fully in life in America, less comfortable expressing their First Amendment protected speech - young black men walking freely on the street of a mostly-white neighborhood, women walking freely at night in a place most men wouldn't think twice about, homosexual men and women walking into a public bar. Mr Keller has likely not ever experienced this fear.

  62. I cannot comprehend the failure, so far, to give the available videos an intensive examination -- to test the assertion by Zimmerman that he was assaulted. Embargoing a Zapruder-like study allows confusion to be manufactured by Zimmerman's defenders and those wishing to exonerate police behavior in the matter.
    "Let's go to the video tape! should be the cry from every side. Where is it?

  63. A grand jury has been convened--surely the video will be examined to ascertain whether an indictment is warranted.

  64. As Grand Jury matters are sealed I am not comforted by its proceedings to date. Why has the police's own surveillance tape not been given the kind of scrutiny in public that other films are accorded in the ordinary course? The Kennedy assassination film examination should be the standard applied here: had Zimmerman already been wounded --broken nose and cuts to the back of his head -- when led from the squad car? Or did he arrange such appearance later when concocting a defense?
    There is no logical reason to delay a CIA-type study of the videotape.

  65. It is interesting that within the mindset that spawned the extra category of "hate crimes" that it never extends to crimes committed by the protected groups. No matter how vicious or egregious the crime against, say white heterosexual males, it never rises to being part of the new class of crimes.

    As this author implies, "hate crimes" as a special category of favoritism and mind control is certainly unconstitutional and wrong. People should be punished as people for crimes - not through some new class system that creates new biases to fight the old ones.

  66. Hate crimes are the right solution employed for the wrong reason. Motive is an important tool for solving crimes and most serious crimes like murder have an easily traceable motive. "Hate crimes" on the other hand are harder to trace back to the offender because often victims are chosen without any per-existing relationship. Therefore if a hate type crime is harder to solve the punishment must be greater to achieve the same level of deterrence. It's the same rational basis behind anti terrorism laws.

  67. Why print this brand of nonsense?

  68. I guess centuries of history detailng unlimited instances of blacks being unfairly punished for such heinous crimes as "looking at a white person in the wrong way" aren't good enough for you? Yes, black people have had it so easy & those poor white heterosexuals males who've been so unfairly singled out... sheesh, were you born yesterday?

  69. Hate crime stands somewhere between genocide and premeditated murder,with the hate murderer approximating to a serial killer. The intent to continue killing remains in his mind after the first deed. this is why, in line with your own philosophy, it must carry a heavier penalty.

  70. Hatred of particular groups or ethnicities is a learned behavior, not a "character defect" as Bill Keller so ignorantly proclaims. So, if our theory of criminal justice has any validity at all, increasing the penalties for this type of behavior is a valid deterrent - people who would otherwise act on their hatred will think twice about it, given the harsher penalties. And people who teach this behavior will be further marginalized by a society that singles them out as particularly noxious.

    I agree with Ross Williams on this one. Keller is engaged in nothing more than 'pious pontificating whose only apparent purpose is to make him appear erudite."

    Sorry, Bill, you're not smarter than the rest of us. You just think you are.

  71. Sorry Matthew....Bill is smarter than you because he recognizes that people at their core are tribal. The instinct to live among one's own kind and socialize with familiar ethnic groups, eat traditional food, dance to "our own" music, etc., etc., is deeply ingrained in all of us. I would call this "preference" rather than prejudice and it certainly is not a "flaw" but a human trait. When these "preferences" turn to cruelty or criminality then you can avail yourselves of the law. Until then, it is everyone's right to "prefer" anything they want. The State has no right, under the law, to dictate your preferences.

  72. The horrendous issue here is not what happened to Trevon which we have heard little but the total exoneration of Zimmerman until a huge protest occurred. Its one thing for an allegedly bigoted Southerner to perhaps stretch the law and commit a heinous crime. Its another thing for the Police Department to summarily dismiss the case without a cogent reason why. If say Mayor Bloomberg was assassinated by an anti-Semite and the police decided that the admitted assassin was say a police supported and stated he acted in self-defense without presenting evidence one would wonder about replacing the entire police force. While people would be unhappy if their was an immediate arrest of Zimmerman perhaps followed by a release the sense of outrage simply would not be there. The issue serious issue is the scandalous state of the Florida Government and anything that causes change is positive.

  73. I think Mr Keller’s take is both cogent and measured, as well as erudite.
    @Ross Williams
    We don’t know that something terrible happened, and wont until detailed inquiries have been completed. Most of us also don’t know when Mr Keller formed his opinion on the matter, nor can we be sure of his motives, but it’s a fair bet that the ignorance and arrogance you exhibit, if shared by many others, will lead to a further decline in the cohesion of the United States and the esteem in which it is still held by most outside.
    @Diana Moses
    The moral guidance you seek should not be provided by the law, but by religion or better still the family.

  74. My goodness, Bill Keller, aren't we a little sanctimonious ourselves?

    As you yourself point out, there are degrees of maliciousness in the commission of crimes . Negligence is considered less evil that fury which is itself less evil than calculation . The law has always taken motivation into account . And if that motivation is uncontrolled hatred, I cannot understand why it should be ignored .

    As to Ms. Hurd's comment that "you can't choose not to be prejudiced or biased", it almost sounds as if she in fact would consider prejudice or hate as a mitigating circumstance in criminal acts, as in "Gee, I could not help myself, I just abhor ...(fill in the blanks) .

    Hate crime legislation was passed and, as you point out, even endorsed in the end by the ACLU, because these crimes are different from crimes of passion or greed . They are inspired by a specific state of mind, an element which has always been constituent in the determination of guilt in criminal proceedings .

  75. When Omar Thornton murdered eight white men at a beer distributorship in Connecticut in August 2010 on the grounds, according to his 911 call, that they were white racists, did the press investigate whether this was an anti-white racial hate crime? Did there begin a "national conversation on race?" Did the press pen a thousand op-eds over whether the hysteria over white racism had finally jumped the shark and now is encouraging more violence than it discourages?

    Of course not. Instead, much of the coverage was devoted to whether or not Omar's victims had it coming.

    As Lenin said, the crucial question is always "Who? Whom?"

  76. Several weeks ago I was walking home in downtown Chicago, a white flight attendant was calling out for help. She claimed a black man had accosted and robbed her. She had already called the police. I noticed her jewelry/watch/cell were still on her person. I asked if he took her money, credit cards, etc. The answer "no."

    Three squad cars pulled up and began to "casually" inquire as to her allegations. Two cars took off looking for the perpetrator.

    A young well groomed black man also was walking home. Another squad car coming from the opposite direction, immediately stopped, doors flung open and the fellow was thrown into a brick wall, his laptop fell to the sidewalk, and he was wrestled down by three policeman, with a knee in his back. His work ID still attached to his coat.

    I proceeded to ask why the brutality and was told to get moving or I would be arrested. I did not and lit a cigarette about 15 away. I felt someone needed to witness this.

    Within 10 minutes, thankfully a supervising officer with sense, told the other officers to back off.

    I told him about my discussions with the woman (I had more information than the initial officers responding to the scene.) I also told him I had passed a homeless black man who looked terrified and murmured "I only asked for a dollar."

    I told the supervising officer perhaps he was "too aggressive" in HER eyes. I told him I think there is more to this story and "you" owe that young man an apology.

  77. Margaret Mead pointed out that we preserve and pass our values into the future by institutionalizing them - by making a visible part of our various institutions.

    We have virtually unfettered hate speech in radio and print media under the guise of being free speech. There is no consequence for inflammatory remarks liable to cause harm to others. It's on TV although more subtle. Likewise, it's in politics. Look at Joe Wilson and his, "You lie," showing that as a white man he could debase a President. Wilson's re-election campaign ads endlessly referred to Wilson as, "Our hero conservative." We also have Gingrich and his racist remarks.

    By substantially raising the penalties, the law is institutionalizing that each individual is expected to use the restraint necessary to keep from engaging in acts of harm even when emotionally inflamed by those irresponsibly encouraging it.

    Ravi was convicted based on substantial circumstantial evidence, not some vague, emotional grasping. Substantial circumstantial evidence is the basis for most convictions. The law worked as it was supposed to work.

    As for Treyvon, the Grio, on MSNBC, pointed out substantial discrepancies in Zimmerman's story. The audio analysis of the calls for help add to the weight of the Grio report. It's regrettable massive public pressure must be used to force the legal system to do its job and determine the facts. If this is what it takes, then fine. Maybe they'll do a better job in the future

  78. During a hearing about vet medical coverage, Rep, Joe Wilson said that he had served in the armed forces for over 30 years. So he was not simply overcome by emotion when he insulted President Obama during his speech before congress, he was disrespecting his Commander-in-Chief. This is how I concluded that he was a racist, not really knowing much about him up here in New York.

  79. Even though I'm a member of two long-persecuted minorities (Jewish and gay), and even though I'm generally rather liberal, I have always been somewhat uncomfortable with the underlying notions of hate crimes laws. Mr. Keller's article echoed many of my personal discomforts.

    However, after reading through many of the thoughtful comments posted below, I've concluded that the positive intention and the long-term societal benefits of the laws outweigh the conundrums and problematic aspects that they present.

    Historically ingrained bias and hatred is intractable. Simply believing that mere mortal human beings are able to overcome societally-ingrained bias and apply existing laws objectively and equitably is naive.

    The purpose of some laws is to prevent behaviors, not just punish them once they occur. That provides an important rationale for why it is justifiable to penalize certain crimes more than other similar crimes; in order to begin to untie the intractable knot of historically-ingrained bias that underlie certain crimes, and to counterbalance the possible misexecution of justice based on these biases, extra penalties are needed.

    In an ideal future world, we will no longer need hate-crime bias laws, no longer need affirmative action, etc. But we are not there yet. Until we are there, we need these deck-tilting laws (in spite of the conundrums that they pose).

  80. These laws are offensive. We should punish bad conduct not bad thoughts. We are turning prosecutors into the "thought police". Sentence enhancements give prosecutors too much power to coerce guilty pleas in plea negotiations. As the Ravi verdict illustrates, the risk of going to trial has become so onerous that we are, in effect, depriving people of their constitutional right to a trial by coercive charging decisions made by overzealous prosecutors. And woe betide any foolish defendant who seeks his or her day in court, as juries are not to be relied upon to see through this, and trial judges have no power over charging decisions . Legislators continue to pander to constituencies by passing more and more of these laws creating “special victims”. It is a disgrace.

  81. Why are you not outraged by the pandering to citizens related to the War on Drugs? Or that the private prison complex with its strong lobby on one hand supports the NRA and lax gun legislation and the other hard sentences for the adolescent with a bag of weed.?

    Why are you not outraged that the over policed urban minority neighborhoods perpetuate the very problem they are trying to rid? If police wanted to "clean up" gang violence they would sweep the known members on a massive coordinated effort.

    But rather they only slowly make quota based arrests so that the still intact gang can recruit new members. Police force existence depends on continued violence.

    Why are you not outraged that suburban white schools are not policed with the same diligence as black schools though study after study shows no greater drug abuse amongst races?

    How do you feel about the "banksters" plea negotiations, admission of no guilt, no one criminally prosecuted though the entire system is rife with fraud?

    What we have is truly victims whether special or otherwise and truly "special" classes that have blanket immunity.

  82. Minimum sentencing requirements are a separate matter from hate crime laws. The law has no business regulating thought. Premeditation of a retaliation for a specific offense is punishable at one level. Hate crimes are premeditated for an even longer time before commission and in a more diffuse thought pattern that is looking to justify a criminal action. Hate crime laws do not create "special victims", but are an attempt to protect large groups of Citizens.

  83. Bill missed one major point: a lot of these hate crime laws that accrued over the last 40 years came into existence to fight "To-kill-a-mocking-bird" cases, where local racial prejudices might allow someone to get away with a minimum sentence for a particularly grevious violation of the law. For example, spraypainting racial epitaphs is considerably more heinous than spraypainting your own name; but a locally elected judge in a racist county of a Southern state would still give minimum sentences because he or she would be a racist to.

    So there might be a case to be made about hate crime legislation being to severe in its penalties, but the essential purpose of preventing racially-motivated sentencing is definitely a good reason for them to still exist. I will be willing to entertain the argument that we should have more faith in our judges when they don't use their work computers to send racist jokes about the President's mother; but until then, I find this to be an agreeable counter-measure.

    Also, I disagree with the analysis of the Rutger's case. Ravi's mentality may not have been homophobic, but what obviously drove the reaction and circulation of the video link was the homosexual element. Just like if a person who is not particularly racist against black people tells a joke about black people swimming; it doesn't mean they have become racist, but they have openly perpetuated racial stereotyping. That nuance shouldn't be forgotten in examining hate crimes.

  84. We have just witnessed a hate crime (or series of them) in France.

    In my opinion (I have seen no polls on the topic, though I have exchanged with friends who feel the same), the crimes committed had two classes of victim: the dead and their loved ones; and the collective, the nation and its ideals, defined by our constitution, our laws, and our aspirational (not always lived up to) moral values and traditions. As a nation, we will grieve for a long time for the victims of M. Merah. We feel responsible for them in a way that we do not feel responsible for people killed in, say, domestic violence incidents, or bank robberies.

    Our legal system contains the notion of "public order." This designates the collection of rules and obligations which permit us to tolerate life in a crowded society. Simplified in the extreme, these rules seek to define the point where the exercise of my liberty starts to infringe on yours. So, where my apartment becomes so filthy that you get roaches and mice. Or where my hate speech puts you in danger.

    It is often used to harden sentences of public officials, especially judges, who are holders of the public trust, and violate that trust.

    It seems that hate crime legislation is similar. It is society's way of saying, "this act hurt its direct victim(s), but it also hurt us as a collective. Unsanctioned, it will leave us wondering who we are." A double recognition and punishment is appropriate.

  85. Bill,

    As noted, the law takes into account the degree of "mens rea" in an individual who commits a crime, weighing premeditation far more heavily than mere negligence. Are there problems discerning a "hate crime," from others motivated by a lesser degree of malice, such as greed? There are, in that a crime which is accompanied by a bigoted comment or slur, is more clearly a "hate crime," while the same offense, when motivated by the same, but unexpressed bigotry, is not as obviously one. "Hate crime" laws increase punishment for the expression of bigotry, not merely for "thought," which may be the motivation for the crime, but is not openly expressed! The problem lies, not in what motivates the crime, but in the burden of proof.

    Under the First Amendment, one is free to express his bigotry in speech, print, or online. One may not use that bigotry to intimidate others in the commission of a crime! We have all laughed at a homophobic joke, or used the "N-word" in casual conversation, but such expression, in and of itself, is not criminally culpable. Other than in the dystopian novels of Orwell, or in totalitarian North Korea, where insufficiently expression of love for "Big Brother," or the "Dear Leader," is criminally culpable, is "thought crime" a real offense. In most totalitarian regimes, it is the expression of disaffection from the regime, or insulting the reputation of the leader, as during the "Alien and Sedition Act," which is culpable.

  86. I think the problem is that the term hate crime is a misnomer. No we can't and should not legislate what people feel. What is meant by hate crime is a crime motivated by the perpetrator's perception of the victim as a member of a category. This becomes a crime not only against the victim as an individual but also against the victim as a member and symbol of a group that the perpetrator has prejudged. In other words, the victim is harmed as a symbolic as well as a personal act. It's the difference between murder and assassination. This is an important distinction, larger and worse than a personal act, and I am in favor of making the penalty larger. But we need to replace the word hate, which is hystrionic and inaccurate, and perhaps call these categorical crimes -- find a term that makes it clear that to whatever degree the crime is motivated by more than animus against the victim, that the victim is a scapegoat. The word hate describes an intensity of feeling, but we need a term that identifies the inappropriateness of the feeling itself. We are not allowed to judge each other as individuals.. and much less so are we allowed to decide that any individual is no more or less than a member of a group or category. Our laws must protect us from each other's stupidity as well as animus.

  87. So we should be able to charge people whith "crimes against a group"? I know some stupid people who believe things that a reprehensible to me and all right-thinking people. Should we scoop them up and put them in a camp?

  88. James Madison, in Federalist 10, warned us about human nature. He said that it was inevitable that certain men would organize themselves into groups that favored policies that would be adversed to the permanent and aggregate interests of the community. These men are naturally opposed to the common good. Madison said that the natural tendencies of these men could not be prevented. The only alternative left to him and the other Framers was to try to devise functions in the new constitution that would minimize the harm that these men could do should they gain power.

    Such men will do other things beyond government and politics. They will prey on innocents in other situations, and nothing can be done to change their natural tendencies. The best we can do is try to minimize the harm they do. We can't change human nature.

  89. Hate crime laws are idiotic. Why is it more evil to kill someone because of race or homophobia than for greed or pride? The same is true for lesser crimes than murder.

    What really peeves me is that not all persons are treated equally under the law. Somehow, the killing of a policeman requires more investigation than the killing of a civilian. In my view, all homicide deaths deserve equal treatment, including homeless people, movie stars, and all "races". A black killed by a black should be investigated the same as a black killed by a white.

    Why is it that the media often makes a celebrity out of suspected murderers who lead organized crime families? Why do known drug kingpins get away with murder?

    Humans are very flawed animals. We should locate all the murderers and lock them up for life. If that takes more resources, so be it. If there is no money for it, then stop spending money on insane wars. (Don't get me started.)

  90. We often ask juries to do the impossible, and consider intention. The law is a messy, subjective thing in application, and anti-bias laws illustrate some of its least rational tendencies.

    On the other hand, most people (myself included) would see a pure outcome-based legal system as a complete deviation from common sense and basic morality. If we ignore intent, do we then treat the drunk driver who kills a pedestrian the same as a driver who's simply lost control of his vehicle? For that matter, we'd have to collapse manslaughter and murder down to a single crime.

    Labeling a crime as a hate-crime is no different than trying to separate premeditated murder from acts of passion, and acts of passion from accidents. It's not easy to do, and may make us uncomfortable in practice, but just because it's not intellectually "neat" doesn't mean it's bad law or policy.

  91. I have a feeling most of the commenters will criticize Mr. Keller, but I agree with him. The case against Ravi made me very uncomfortable; the charges may have been about invasion of privacy, but he was clearly tried for "causing" Clementi's suicide -- a ridiculous notion that undermines the agency of those who choose to take their own lives. Motivation seems to me to be irrelevant in most crimes; murder is no more or less hideous whether the killer is a racist jerk or a boy-next-door type who everyone says was "just so ordinary." Bias laws are indeed "probably here to stay," but I disagree that they are "widely accepted." I am as liberal as they come, but I certainly don't accept the idea that they belong in American jurisprudence, nor American society as a whole.

  92. The point of defining crimes motivated by a group identification of the victim is twofold. One, it says that we as a society assert the right of persons to go about their lives safely regardless of their race, ethnicity, gender, sexual preference, religion, whatever. Two, it asserts that we as a society so value our diversity, that crimes motivated by aversion to diversity in any of these axes threaten who we are as a nation. We're the "Melting Pot". Or were. Hate crimes are crimes against our national identity, besides being crimes against the innocent victims themselves. Got that, Bill?

  93. I disagree with you, Mr. Keller. I don't see hate crime legislation seeking to punish the thought, but rather the act motivated by that thought. If someone likes to think in ways that are racist, sexist, homophobic, etc, I find that deplorable, but they're legally free to think that way. But if they then act on that bigoted, unjust thinking, in ways that are not only criminal but are exacerbated or instigated by their bigoted thinking - well, that is a hate crime.

    I see this in miniature in my college classroom. We cover thorny and contentious issues, and every now and then, in the course of trying to explain things, someone will say or write something truly biased and wrong that unfairly characterizes some particular group of people. I call this out doubly: first, because it's poorly reasoned and wrong, but secondly, because the effect of the prejudiced and poor reasoning is to stigmatize and derogate.

    When I mark down a student's work for being (a) wrong, and (b) prejudiced to boot, I point out to them that the two things are linked. I'm not telling them they can't think prejudiced thoughts, but that when they let prejudices and negative stereotyping lead them into faulty and illogical arguments, the result is worse than simple sloppy thinking. Like a hate crime, it's more despicable, because knowing that such bigoted attitudes are socially deplored, the person still chose to act on them. It's not the thought that's condemned, but the action.

  94. The act is already illegal; it constitutes the crime. Punishing a mindset lurking behind the crime is certainly tempting, but unless you are the kind of god who can read what people are thinking, you're just making a guess, with no real evidence.

  95. I have to agree with Mr. Keller: governmental authorities should not be in the business of convicting people because of their beliefs, no matter how noxious. We're not a thought-police state. The only exception to the state inquiring into the mind of an accused person, should be to find out if a murder is committed in a fit of passion or pre-meditated.

    Is it not sufficient that people who commit murder for any reason in our country are usually condemned to life imprisonment or death? Is a pre-meditated killing for money worthy of less punishment than a killing based on someone's race or gender orientation? While it's true that African Americans may not receive equal justice within our criminal system, the answer is not to pass hate crime laws, but to seek to make existing laws more just.

    In Tyler Clementi's case, the solution is not to try to convict Dharun Ravi for the "hate crime" of posting a video of Clementi kissing a man on the web, but to pass legislation that seriously penalizes infringement of privacy, especially in settings where the expectation of privacy is strong (bedrooms, dormrooms, gym locker rooms, doctor's offices, etc.). .

  96. When I consider the issue of hate crimes legislation, and I consider the world we live in -- where, for example, innocent people were slaughtered in anger after some completely different and exceptionally clueless people burned copies of the Koran -- I think it is hard to over-estimate the destructive power of hate based on prejudice, on religiosity gone toxic, on the seductive idea that the group someone belongs to is morally superior and more deserving of life and happiness than some other group. Hate-crimes laws may be a blunt instrument, but I think they save lives and so far, I do not see that they have exacted an unreasonable cost.

  97. Of the three men who killed James Byrd, Jr., two were sentenced to death and one has already been executed, one remains on death row, and the one deemed least culpable was sentenced to life without the possibility of parole.

    Clearly, the law which only prescribed the death penalty provided inadequate deterrence to stop this crime, so we MUST enact a Hate Crimes Law that will increase the penalties for such crimes to something much, much worse than execution, something which will provide the deterrent that the death penalty did not provide.

    Now will the supporters of Hate Crimes Laws please tell me what that penalty will be?

  98. I suggest that, particularly in Texas, if the crime were not elevated to a hate crime and consequently received the notoriety it got, the white men who killed this black man in such a manner would have received lesser sentences.

  99. Life in a cell with nothing but a bed and a toilet should do the trick, some time outside, alone, once a week!

  100. Racism is not a genetic defect say like behaviors of a sociopath or schizophrenic. In Keller's world there would be no difference between the individual who acted with intent and pre meditation and a passion crime that escalated into murder or a vehicular manslaughter.

    Beside "hate" crime cases, our justice system always weighs "thought" or intention by someone's actions. Actions are in many cases an adequate proxy for what lies in someone's heart or head.

    Our culture is extremely sick. The real tragedy in the Trayvon Martin case, the young man shot on a porch in Wisconsin and now a 68 year old ill black man in White Plains NY is that proper police protocols were not followed: arrest, collect forensic evidence, GSR, etc or lack of arrest conduct a thorough investigation.

    The equal tragedy is that there appears to be an epidemic of these types of not only unjustified shootings but our complacency in applying equal standards of investigation.

    Obscuring the matter with articles such as these (ie hate crime legislation) or undue focus on the individual whether, Trayvon or Zimmerman, avoids addressing the structural/legal issues, such as the Stand your ground legislation (a template by ALEC, outside groups writing legislation). As well as the more pressing cultural issues that all of these above cases manifest.

    In Keller's world we should make no attempts at healing our culture or progressing forward in our development.

    I do not want to live in that world.

  101. Hate crimes legislation doesn't criminalize thoughts. Most of our criminal statutes require a showing of intent as a factor to be proven before one can be found guilty of the offense. The bias component is simply an additional aggravating factor.

    What is ironic about our hate crimes laws is that they proclaim that bias in the commission of a crime is a damage to society beyond what the victim has suffered, but we do little or nothing to combat that bias. Anti-racist work is mischaracterized as meddling with ones right to think, feel and speak as they choose.

    But society also has its values that can and should be promoted and unfortunately when it come to race our expression of those values is muddled and weak. We talk about "obeying the law" or believing in equality while the vast reaches of our media world send countless messages in opposite. More importantly, the institutions most responsible for shaping social morals are strangely silent on issues like racial profiling or the characterization of gays as abnormal and in need of being corrected. Until that changes hate crimes laws are a poor but necessary alternative.

  102. The difference, victor, is that one is intent, the other motivation. Criminalizing motivation seems absurd on its face, as it does nothing to change the nature of the crime. Intent goes to the actual crime being committed; motivation does not.

  103. Bill Keller' seems to be making three points:

    1. We already have "mens rea," which effectively adds extra time at sentencing to a conviction involving bias or hatred. Consequently, we just need to enforce the laws we have.

    2. The hysteria resulting from Trayvon Martin's senseless murder has been taken advantage of by political opportunists, such as Reverend Sharpton (and Jesse Jackson, who called Martin a "martyr").

    3. We all have latent prejudices, and we can't help what we think, and so the response to Martin's murder and the call for a new Hate law is hypocritical and sanctimonious.

    As for the first point, I agree that we should be careful about creating new laws, because each law is a link in the chain that will eventually enslave us. I'm concerned that the term "Hate" will be defined by the same powers who gave us the equally controversial term "Terrorist." Indeed, 10 years of terror-fighting has made hatred the common currency.

    As for the second point, Keller is full of twizz. The neighborhood profiling that almost made it inevitable that such a tragedy would occur is an outrage in itself. Poor police response and criminal police investigating make it clear that racial injustice is alive and well.

    As for the third point, we are all prejudiced, but we live in a multicultural, pluralistic society where tolerance is not just a nicety but a necessity. Hypocrisy and sanctimony regarding hateful thoughts are almost comical at times, but when did that ever stop us?

  104. Unless I misread the article, I don't think Keller is arguing, as you say in point 2, against "the call for a new Hate law" in repsonse to Martin's killing. I think he is arguing that the existing "Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act" goes too far. (I strongly disagree that it does.)

  105. This thesis would be a great deal more convincing if it came from someone who isn't white, straight, and male. And if the one source consulted weren't a white, straight woman.

    There is more than one theory of punishment in the law. One not cited here is that we, as a society, punish individuals (take away their liberties) in order to discourage others from the same or similar behavior. While it may be true that a racist or homophobe is unlikely to drop his or her biases "willy-nilly, on the spot," prosecuting an offender who is motivated by such biases could very well lead others to think twice before acting on what are, after all, learned (not innate) beliefs.

    It's my belief that arguing otherwise points to discomfort with the fact that such prejudices exist and an unrealistic, unproductive desire to sweep the problem under the rug. I also believe attempts to eliminate affirmative action fall into this category.

    Until communities whose members have been victims of hate crimes resoundingly say sentencing enhancements are unnecessary and unhelpful, I'll continue to believe they are needed. Thanks, anyway, Mr. Keller, for your "concern."

  106. really, it would be more convincing if the author wasn't a white, straight male? I'm not a white straight male, but the argument seemed pretty cogent to me, regardless of the author's gender, race or sexual preference.

  107. I think, with all due respect, that both Bill Keller and the learned professor got it backwards. Our liberties do protect thoughts, to a great extent, as long as they are not acted upon. The racists, fascists, homophobes, and others may say whatever they want - hey, some of them have their own successful talk-radio shows -- as long as they remain within those limits. It is at the moment when they cross that sacred boundary between words and actions that the law intervenes. We don't regulate thought; we regulate actions based on thoughts that are otherwise well protected. In that respect, the hate-crime legislation is a true golden-middle, sending a message to would-be-actors: We would protect your dispicable opinions, as long as they remain just that - but no more.

  108. I'm a little hazy on the rules here - are victim cards trumps in this game?

    Also, how do you know they're straight?

  109. The point is the crime itself has to be punished...not the reasons for committing the crime.

    If someone thinks vile thoughts their whole lives but is blameless in their conduct...their is no justification for depriving them of their liberty as much as you might disagree with their world view.

    Conversely, one should not be forgiven for a crime simply because you are sympathetic with their political or philosophical worldview. Otherwise religious leaders would have carte blance (at least within their communities) to do whatever they please.

    Two important considerations:
    1) Hate crime legislation in effect 'cheapens' crimes against non-peferred constituencies. Why should the life of a straight man be worth less than that of a gay man? Hate crime legislation in effect creates separate legal castes and violates the notion of equal protection.
    2) Creeping orthodoxy. Attempting to punish various types of thinking is loaded with the potential for disastrous unintended consequences. Think 'thought police'. Enforcement of 'correct thinking' can be easily abused by unscrupulous persons pursuing a personal agenda or vendetta. Conduct, on the other hand, is objective and doesn't require interpretation.

  110. Some of what you wrote is incorrect.

    "If someone thinks vile thoughts their whole lives but is blameless in their conduct...their is no justification for depriving them of their liberty as much as you might disagree with their world view. "

    No one is being punished for their world view. People are punished for crimes. Racism and bigotry are virulent motivators for destroying the person(s) at the focus focus of said racism and bigotry. This should, rightly, be an aggravating factor in that person's punishment if they commit a crime against someone using these motivations.

    You should think of crimes of passion and greed, for example, as more personal, and crimes motivated by racism, sexism, homophobia as more social. Hate crimes require special attention because they can quickly spread to others and cause mass violence against particular groups. History is replete with examples of this..

    Your first point is wrong on this count.

    Your second point is wrong because, again, thoughts are not being punished. They are being used as aggravating factors in judging the severity of a punishment for someone who committed a crime. This is a highly significant distinction. One that must protected.

  111. I disagree. Having a thought and acting on it are very different, and a crime committed for bias purposes is dangerous to society in a way other crimes - all else being equal - are not. That is because they represent part of a larger phenomenon of violent bias connected by ideology, and if not confronted in their nascent state can grow into dangerous political movements.

    Hate crime are special, but taking motivation into account, as you point out, is not. The idea that prejudice is inherently more difficult to choose to forgoe than, say, greed, sexual compulsion, or any other criminal motivation is not self-evident and, I think, is spurious. We police thought when it is connected to a crime; this is nothing new.

  112. Yes, but where do you draw the line when policing thought when it is connected to a crime? Mr. Keller forgot to name another group frequently subjected to gross abuse, the disabled (The Times has been covering this story). Unfortunately, there is no way to know which angry teen will turn into a skinhead. There is so much thought that probably leads to crimes - pedophia, for instance - that by demonizing the thought, characterizing these people automatically as monsters, seems too simplistic. We need to look deeper.

  113. I am not educated enough to understand the complicated philosophical issues of how to think about so-called hate crimes.

    I only understand how hard it is to get people to change their minds about race, religion, sexual preference when those minds are so closed and filled with anger and hate. I know people who simply cannot/will not accept that their way of thinking isn't good for them or for others.

    However, when those people choose to violently act on that hatred and anger against those they despise, I cannot accept that they should not be judged more harshly for their actions. I have found that people who commit these type of crimes generally act out in their normal everyday actions what they think of those they despise and their hate is obvious long before it might become lethal.

  114. I was surprised to see this article from Mr. Keller. I'm very, very liberal (but not a member of the ACLU) so I just want to go on record that there are others of us who very much are against hate crime legislation. Deeds should be punished, not thoughts. I do agree with the distinction between premeditated, heat of the moment, and negligence crimes, because the punishment should be proportional to the level of deterrence needed to prevent future crimes. Obviously, someone who consciously plans a murder requires more deterrence from future acts than someone who accidentally kills someone. But other than that, if someone commits a crime, they should be punished for what they did, not for their motivation or what they thought. As Mr. Keller points out, its a slippery slope trying to analyze the nuances of an individual's motivations, and you want to prevent crimes regardless of the motivation anyway.

  115. The concept of hate crime is not the only one where intent is relevant of a crime. Intent is the difference between an act of terror like the recent shooting at the Jewish school in Toulouse and a random school shooting like Columbine.
    Following the logic of this article one could argue that the law should not recognize and punish the intent to induce fear in the population (terrorism) but just the criminal act.
    That being said, I agree that in court hate crimes are tricky and the Clementi case is good proof of the need of explicit legal language in writing these laws.
    It also worth noting the overzealous prosecution in Tyler's case and the stupefying apathy of the DA in Trayvon's case.
    In the end is less about what is written in the law and more about what we do with it.

  116. I think you raise a question worth considering. Living in Central Europe I'm aware of the dangers here especially of hate speech. And I'm also aware of the dangers of the laws against hate speech. Those laws will be interpreted by governments and judges into an unknown future where the term hate speech may come define opinions opposed to the government, for example.

    But I think hate crimes are a different catagory. Defining crimes that are committed against a person because of his/her race, religion, nationality, sexual preference, etc -- and those crimes seem to be especially cruel -- makes the case that while one may think and say anything, one is condemned for acting on those opinions.

    With a history of lynching in the South, for example, where society and law assigned no blame or guilt, people could feel free to commit heinous acts with impunity. Hate crime laws make it clear that society NO LONGER accepts such acts.


  117. Great article. Thought provoking. But...what is the solution? Is there one?

    Law isn't such a great vehicle for changing "hearts and minds". As a lawyer, I know.

    Spike Lee, with his cinematic skill, could probably do more than any law or statute to change the perceptions and thoughts of ordinary human beings....for the "better".

    Let's hope he uses his great talents for that purpose in light of recent events.

    Bigger question. Who is benefiting from keeping the nation racially polarized? Yes, as a country, we were probably born in polarization. From the Mayflower escaping persecution, to characterizing Native Americans as "savages", to African slavery, Jim Crow segregation and the like.

    But why keep this up?

    I think professor Derrick Bell once theorized that promoting racial divisions prevents "poor" whites from realizing that they are just as oppressed (if not more so) by the "powers that be" as are blacks. Fomenting racial divisions prevents people from seeing the real sources of their oppression and directs that anger towards convenient, but inappropriate, racial scapegoats be they black scapegoats or white scapegoats.

    I think he was on to something.

  118. Mr. Keller is totally right about abusive immplementation of the bias laws. We are becoming a country of intolerence. It is coming from liberals and conservatives both. Unfortunately people like Al Sharpton and Rush Limbaugh help harden the attitudes of even moderate and sensible people.

    Increasing polarization in America is accelerating because extremists find many opportunities to fan the flame of hatred. The devide is preventing us from solving much bigger problems facing us.

  119. Your bias against bias laws assumes that we have a judicial system that finds the truth at all times, without bias. We all know that is far from the truth. It is not only my state that has a long record of false convictions for black men at a much greater rate than for white men. I have always been under the impression that the designation of hate crime served as a balance of sorts, an assurance that crimes against minorities would be punished equally harshly as crimes against majorities in all states. Ultimately, the punishment is decided on a case to case basis.

    This is also what you are missing as to the anger generated by the killing of Trayvon: a teenager has been killed, the killer's story doesn't hold water and the killer has not been arrested. How is this NOT supposed to smell like racial prejudice to people who have experienced it their entire lives?

  120. However, a problem with hate crime laws is that the slippery slope does take you down a path that could bring heightened scrutiny and penalty for crimes against a number of groups, as the author stated, from children, to the elderly, to women... The only group I can see that wouldn't be included is white guys (I am one) leaving us prey to burglars and robbers who may not want any incidents muddied by mis-applied bias laws. It will be open season on guys like me.

  121. Thank you for this sound argument. I need to rethink my support of hate crime legislation because you have given a very good reason not to support it. Why should a person receive a stiffer punishment because his victim was gay or black and the crime was committed because of hatred of a class of people.

    My original support for hate crime legislation was because I believed that crimes against certain groups were going unreported, unprosecuted, or criminals were given more lenient sentences. If this is not the case, there is no need for such legislation.

  122. Dear Janet

    As worthy as Mr. Keller argument may be, I am afraid many crimes against certain groups are still unreported and, even more often, unpersecuted. This was an even harsher reality before hate crime laws, and their existance has made the reporting and specially the prosecution more likely and more effective. Not to mention the much larger and even more worthy effect of preventing those crimes from happening by making their punishment more precise and more public to potential criminals.

    Eliminating or watering down these laws will only revert us to the old position, severely compromising the effort and achievements that have been done in these last few years.

    I am afraid this legislation is very much still necessary.

  123. Good points Janet and to my mind valid. I read this an oblique condemnation of Keller's typical glib rich white guys shabby job of parsing a subject that he is unprepared to deal with.

    Possibly all the years as editor left Keller yearning for the freedom of the readers comments where we are free to be glib, attitudinal, inaccurate, off target, and to release our inner Emily Letella*.

    *Emily Litella was a fictional character played by comedian Gilda Radner in a series of appearances on Saturday Night Live

  124. Hate crime legislation is unnecessary. America tolerates hate and Americans have every right to hate whatever or whomever they want. Hate speech is a protected right. Hate crime legislation will not reduce the level of hate. It is at best a waste of time and at worst a cause for abuse. Existing legislation is more than adequate to address crimes such as assault or murder. If someone commits murder with racial animus then it is first degree murder, punishable by death or life imprisonment.

  125. A thoughtful, 'take a step back and think' view. Thank you.

  126. Yikes!! Mr. Keller you have chosen to ignore 400 years of American history. I suggest reading "The Warmth of Other Suns" by Isabel Wilkerson.

  127. Liberals champion "hate-crime" laws because they believe in a narrative of victimhood that they never tire of repeating to themselves. It seems that they believe that we are on the verge of another Kristalnacht or that Bull Connor is about to spring back to life and let loose the dogs on us. These are not rational beliefs, but more like to the shared beliefs of cult members.

    The name "hate crime" is a term inspired by Orwell's "Newspeak", as well as being a cheap trick to defend the very concept. Who could be for "hate"?

    Equal treatment under that law should be the goal of the criminal justice system. These laws deny this. Deciding that some crimes are worse because the victims are special or that the perpetrators had especially wicked thoughts beyond the actual murder, arson, assault et al is not even a noble goal. The fact that there is no reasonable way to apply these standards evenly or to know if they are being applied evenly makes these laws no only easy to abuse, but it is almost as if they were crafted to allow their abuse.

    And these laws will not stop all "hate" any more than laws against murder prevent all murder. One hopes that everyone knows that if we encourage the state to actually prosecute "hate" that that would be a disaster, don't they? The only people who believe otherwise must be very sure that they will always be in control of the definition of just what "hate" is.

  128. These laws are necessary because people took murderous actions, and the authorities would not take any action. It was socially OK to lynch some people. Thoughts are not being regulated, but the actions that are being rationalized by the thoughts are being regulated and punished.

  129. Of course laws against murder and hate crimes do prevent many crimes. They can't prevent all crime. Imagine the crime rate if we had no laws against murder and hate crimes. Just look at the many unpunished murders by white southerners decades ago. No one went to jail because the police, judges and lawmakers made sure of that. Therefore lawlessness was normalized and accepted. White southerners were given freedom act out their hateful feelings, causing an atmosphere of terror for blacks, all encouraged by the very officials of the state who were supposed to keep law and order. Hate crime flourished in that atmosphere.

  130. Oh, how you misrepresent Orwell. It was hate _ encouraged_ by the state, for the purpose of maintaining popular support for continuous war, that Orwell depicted. Pretty much the _opposite_ of the reason we have actual hate crime laws today.

    Are you also one of those who takes the movie Wall Street as a training film for traders?

  131. It's not evil thoughts that hate crimes legislation punishes it's letting the evil thought in one individual's head take harmful action against another individual, when absent the thought(s) the action would not have been taken. As Mr. Keller concedes, such calculus has often been an aggravating factor for prosecutors even when not formally made the subject of the charge or objective proof, now by statute, such formal charges and proofs can add years to a sentence. It may be a distinction without a substantive difference, but procedure is often just as important to the determination of justice as substance, and given how those on the far left and far right believe that opinions justify more than persuasion the law doesn't seem inappropriate to me.

  132. It is not as simple as hate. It is fear: fear of the different. It has many manifestations; fear of sexual orientation, fear of racial type, fear of gender, religious affiliation and so on. It is abhorrent but not in itself lethal until it is coupled with a ready availability of deadly weapons, and the lack of effective enforced legislation regarding those weapons.

    Couple available, uncontrolled, deadly weapons with paranoid fear as manifested in the concept of a divisive gated community and you have created a disaster waiting to happen.

  133. It is clear that a person's motive is relevant in a crime and its punishment. Motivations of hatred of a particular group are more offensive an dangerous to society than greed or anger directed at an individual, and certainly more serious than unpremeditated crimes. Group hatred, like avarice and anger, is intrinsic to human nature, but the former is more serious because it is diffusely directed, it threatens an entire group, from which one victim may be picked out at random, to generate fear in the others.
    Also, we do have the ability to learn that "others" are not to be hated and targeted for violence. We do have more control over our opinions and thoughts than over impulses. We must be careful what we think because thoughts become words and words become actions.
    Andover Bob

  134. Mr. Keller is surprised that America provides broad protections for its citizens to be able to say the most vile and odious things, but also punishes offenders for thinking those things during the commission of a crime.

    It is precisely because the U.S. protects free speech so widely, that stiff penalties need to be in place when citizens act on prejudiced beliefs in committing a crime. That's the central point of the libertarian ethos, you can do and say as you please, as long as it does not harm other members of society.

    Odious speech can push certain groups over the line into committing violent offences, and so if there are broad protections for that speech, citizens need to also be protected from the potential criminal consequences of that speech.

  135. We are too quick to legislate anything that needs much more care and investigation. Like doctors who treat the symptoms, laws are enacted to cover up the true problem.

    Our country is not as advanced as we think. We are still fighting intolerance and ignorance; and it is not just the White's with the problem. Other communities are as bad or worse.

    We are champions at the blame game; it's always some body else at fault for our problems. It is NEVER me - always someone else. Well, it's gone too far. We no longer take personal responsibility for our actions, we shift the blame. We ignore our children and blame the schools for poor education. We ignore our government then lament these insipid laws to make hate illegal.

    We need to look internally first to examine the root of this anger, then look to the outside and the effect it has on those around us. We need to stop defining ourselves racially and begin seeing our selves as part of a collective... Americans. We need to look for the personal answers to these problems, not to our legislators who are so far removed from our reality that they really don't understand.

    It's not just hatred that's the problem is our loss of control over our own lives. Our economy is out of control, our government is out of control, our lives are out of control. The first step is to start taking personal responsibility and stop blaming everyone else for your problems. It is your fault, no one else.

  136. Underlying almost all crime are: (1) fear, either of not having "enough" (so you steal) and/or of the "threat" the other poses to you or your status (so you assault or murder) and (2) a lack of empathy for your victim. Both fear and empathy are powerful baked-in-the-bones survival instincts (unfortunately, fear's a bit more powerful). They vary slightly in each individual as does that other determinant of human behavior, one's environment.

    Whether "choice" (i.e., free will) actually enters the picture is in doubt by a large number of scientists who have studied the human brain and how it works.

    Until we begin to focus the discussion on 'what makes ALL of us tick,' we can pass law after law after law identifying this or that victim as particularly worthy of our empathy and this or that victimizer as particularly worthy of our fear/hate. But not only will that fail to remedy the problem, it will prove just how pathetically we fail to even understand the problem. For we will be responding to an individual's fear and lack of empathy with society's own fear and lack of empathy feeding the very disease we want to remedy.

  137. A thoughtful piece I'm not accustomed to finding in the press. First, my hat is off to Mr. Keller because, whether he realizes it or not, he is flying in the face of political correctness That said, let me offer a slightly different take. Assuming one can define more clearly the criteria for hate crimes, and further, assess the factor of motivation in the commission of a crime (hate or otherwise), then the next step for me would be to determine--not as a jurist or member of the police, but as an ordinary citizen--whether in society at large the case has been used for ulterior purposes.

    Trayvon Martin is a cause celebre, and on that I take issue, particularly since racism has been invoked and the facts remain in dispute. This case reveals a signal blindspot in American political culture. Grandstanding figures weeping copious tears, yes, but far more important is that no one protests, for example, the bludgeoning to death at about the same time, of Shaima Alawadi, an Iraqi mother of two, in California, because she wore a head scarf--or for that matter, the brutal massacre of 17 in Afghanistan, details of which are too ghastly to recount.

    I believe hate crimes do merit an additional component of punishment, but what one also finds in the Martin case is a selective judgment: feel-good demonstrations among those blind to heinous crimes perpetrated against those outside the charmed circle. Where the outrage over Alawadi or murdered small children, their bodies then burned?

  138. Should a hate crime be treated any differently from the same crime that stems from another motivation? Yes. Punishment for all crimes take many factors into account, including motivation, prior offenses, etc. The hate crime law acknowledges the fact that some people have hatred for other groups of people. The purpose of the law is to discourage people from taking action. I would look at the data before writing for or against hate crime laws. If the data show that hate crimes have fallen after the implementation of the law, there is no way I would argue the law is bad (except for the people who committed the crimes).

    You can say that the law punishes a very specific form of thought, but the question is, is the specific thought that it punishes worthy of being specifically targeted? What is the history of the US? What are the possible ramifications for the future of the US (with its changing demographic) if this specific thought is not targeted? I'm not saying anything about these, but I wish the article did. Invoking 1984 and the thought police is cute, but what are the real questions that need answering in order to say for sure whether hate crime laws are a good/bad idea for our society?

  139. Hate crimes legislation provides a deterrent, based on intent, targeting crimes that society finds particularly abhorrent and worthy of extra punishment because they target particular groups that historically have been victimized. Sure, intent is difficult to gauge but it's already an important part of the law, and can drastically affect one's sentence in wide range of crimes, as Keller acknowledges. Is hate crime legislation being misused? I don't see a case for that, certainly not based on this column. I'm glad that society has said NO! to certain classes of crimes - it's a good message and not one I would consider as a prime source of injustice in the law.

  140. The hatred in this country has been deliberately ratcheted up for decades by the Republican Party and their proxies. That fact, and I realize they have nothing but contempt for 'facts', is irrefutable. Hate in one form or another for 'others' consumes close to half of Americans. Drastic problems sometimes warrant drastic measures. Hate crime statutes are a David against a Goliath of news organizations and Republicans that daily incite the already wicked amongst us.

  141. You're decrying hatred of others by accusing and attributing evil intent to an entire group of others? Irony must be dead.

    There are racist, misogynistic, homophobic, biased and hateful Democrats too, you know. Some of them are biased against Republicans.

  142. Punishment for thoughts is a dangerous place. It's already being used in workplaces--there are stories all over of employees being forced to take some kind of a class because they had a disapproved of thought--or represented a threat.

  143. Taking a class seems preferable to inflicting emotional pain on others as a result of ones biases.

  144. This would be a thoughtful article except for the fact that the perpetrator is as free as a bird. Before opining about disparate penalties for hate crimes, let's allow that there should be equality in being arrested and charged.

  145. Mr. Keller is making a point about accuracy of language in our laws. And he's brave to do it, even if it flies in the face of our efforts to prevent deplorable behavior. When we start misusing language freely simply because we believe the ends justifies the means, we enter the territory most beloved of dictators, many of whom started off with intentions of perfecting humanity and righting age-old wrongs. It's dishonest to pretend you can't understand his arguments and take refuge in the comfortable assumption that he couldn't possibly understand. At least admit you're playing with fire, then tell us why you believe it's worth it.

  146. Keller making a point about accuracy of language? Really? He says,"The shooter in the Trayvon Martin case, George Zimmerman, has not been charged with anything, but politicians are already slinging the h-word." That Zimmerman hasn't been charged is precisely what is WRONG, not a reason to be aghast at how unfairly he is being treated.

    Re the ridiculous notion that bigots can't reasonably be asked to erase their hatreds instantaneously, nobody expects that - just that they not commit their crimes. Burglars face stiffer sentences for burgling in dwellings or if someone is inside, but although Mr. Burglar can't help that that's a house, not a henhouse, and that someone's home, he CAN skip the burglary.

    Keller's fatuous Friedman-like piece sounds like he just arrived from Mars. The vile history of US slavery, Civil War and the Jim Crow years that followed down through the monumental civil rights struggles to the present statutory mandate and necessity for the federal government to monitor the behavior of some state and local governments should make it obvious that hate-crime laws are attempts to cure a terrible problem, attempts to civilize us by emphasizing that hate crimes are especially destructive to the community.

    And he should keep his nasty opinions about Rev. Al Sharpton to himself: when Keller and the Times -- Bush's stooges -- were selling us an Iraq war, Al Sharpton was warning how immorally destructive it would be for us.

  147. Excuse me? State of mind should not be a factor considered when charging someone with a crime? The case here in New Jersey is classic. An arrogant over privileged kid decided it was okay to bring his roommate into public disrepute because he was gay, an act that led directly to his death. The crime would not have occurred had the victim not been gay. Motivation is a completely appropriate factor in considering the severity of a criminal act. If race played a role in the crime in Florida it is right to consider that an aggravating factor.

  148. Don't you see, though, that you're ready to indict in part because a kid is "arrogant and overpriveleged"? Those may be obnoxious, but they aren't crimes.

  149. Keller, as usual, misses the point in this bloated piece that conflates thought and action.

  150. By Keller's logic, we should not have any anti-discrimination laws. A landlord is free to refuse prospective tenants for any number of reasons, some rational, others very much less so. What the law prohibits the landlord from doing is to turn away people on account of their race, gender, religion, and so forth. Anti-discrimination laws do nothing but bar people from acting on their prejudices.

  151. I think it's a much more complicated question than this column acknowledges.

    Hate crimes laws don't criminalize thought--they criminalize a certain nexus of thought and action. Our laws do that all the time, any time that judges or juries weigh motive in deciding on a verdict. It's more heinous to kill somebody because you're curious to know what it feels like than because you're enraged, and the sociopath in the former case can expect a stiffer sentence.

    Hate crimes laws are historically specific--they implicitly acknowledge both America's history of slavery, Jim Crow, lynching, and other acts of racial terrorism and the twentieth century's experience with genocide. They (rightly, in my opinion) respond to the special dangers posed to a society by violence motivated by the view that one group of people doesn't deserve to live.

    The Ravi verdict is clearly a case of abuse of the law, and it is a terrible and troubling precedent if it stands up on appeal, but any law can be abused. It doesn't mean the law should be struck down.

  152. Agree, except that I'm not so sure about the Ravi verdict. That was an astoundingly malicious act. No one can tell me that he didn't intentionally set out to humiliate his gay roommate. To good effect, as it happens.

    Indeed, the fact that some people do not understand the power of such acts to scar seems to me an excellent argument for hate crimes legislation. The appalling figures -- 30-40% of gay and lesbian youth have attempted suicide -- speak for themselves. The main difference between this particular act of anti-gay bullying and the others is that the suicide was easily linked to a specific act, rather than to the homophobic taunts, threats, assaults, and rape to which gay children are subjected. This kind of bullying is not a prank, and if it takes a prison sentence for people to understand that, so be it.

  153. Hate crime legislation is rarely applied if when the hater is a minority and the hate is directed at the demographic majority. The law is unfair, polarizing, and serves only to breed more hate and distrust.

  154. The majority once again clings to their delusions of persecution and denial of advantage.

  155. Professor Hurd on hate crimes law: “The law now regulates not only what we do, but who we are.”

    Tell you what, Ms. Hurd, I'll let go of hate crimes law, when who I have been for 62 years is no longer a crime.

    Military service, employment, housing, marriage and family rights come my way, fully, equally, and I have no need to dissuade the bigots, from continuing to hate me, with more severe penalties.

    We've all "laughed at a homophobic slur." Yep. Someday, some of us will join in laughter at a heterosexual slur, in public!

    Some of us know precisely why Mr. Clementi killed himself, Mr. Keller: self-denial is as finely tuned a punishment as the damage any posse could inflict.

  156. Conservative apologist drivel. If one of Keller's children were tied to a fence, beaten to death and left naked to die on a Wyoming field his column would be quite different this morning.

  157. Hate crimes are eligible for reasonable sentencing enhancement to the extent that they are acts of terrorism. Matthew Shepard and James Byrd Jr. weren't killed just because they were, respectively, gay and black; they were killed as acts of intimidation aimed at gay and black people. They weren't just victims of murder, they were messages: if you aren't a straight white person, we might torture and murder you at any time. Live in fear.

    That's the difference between a "simple" murder and a hate crime. A hate crime is a murder, a rape, an assault, an act of torture which simultaneously serves as an act of intimidation against millions of others. Bill Keller and others seem intent on insisting that acts of terrorist intimidation against large groups of people only count when straight, white male Christians are part of the target group. Apparently, collective death threats against anyone else isn't worth legal notice.

  158. I'm very glad you're writing about this. I have been disturbed by the witch-hunt aspect the big cases that become media-driven. I feel the two recent cases you profile are very different. Mr. Zimmerman, it appears, should be arrested and charged. Mr. Ravi's case seems to fall in a gray area, hideous as his behavior was. To make the leap from his actions over a few days to Mr. Clemente's suicide - which is what the case was about - is a huge stretch. I'm pleased that this discussion is happening. Our culture does not like complexity anymore; every issue requires a simplistic yes or no solution or answer - which is frustrating for me. So, thanks for this piece.

  159. This is not what the case was about... no charges were brought against Mr. Ravi for the death of Clementi.

  160. By writing, almost at the end of the article,:
    "As if none of us, pure and righteous citizens, ever entertained a racist thought or laughed at a homophobic slur", the author himself unfortunately proves that he is the most sanctimonious of all.

  161. I hope that everyone who opposes hate crime legislation also opposes racial or group profiling in all its forms, as well as the disparity in punishment between users of crack and users of cocaine.

  162. The problem isn't the law. People do in fact act out of hate, but rather the application of the law. Hate is a specific action. James Byrd and Matthew Shepard are excellent examples, the crimes against them originated in hatred of the other. By throwing in hate crime status "willy-nilly", the intent of the law is diluted.

  163. In protecting "the right to speak or publish the most odious points of view," America protects hateful thought, not just speech. We might not be able to "choose not to be prejudiced or biased" but acting upon it is definitely a choice. It is not hatred that is criminalized but the actions stemming from it. What is given special consideration in hate crimes is the special malice and "aforethought" with which the crime is committed, the intent, the predominant motive, the "mens rea."

    Whether or not Ravi or Zimmerman 'acted' with homophobia or racism as primary intent is another matter altogether.

  164. A crime is a crime! why does it have to be tied into race or gender ID or sexual orientation? It's a freaking CRIME, period

  165. I'm very uncomfortable with the way you are trying to associate the Clementi case here. This is a case of race reaction, like Jena Six, trumpeted by activists on social media until the MSM bites and plays it up.

  166. According to Wikipedia, the Suicide Prevention Resource Center found that 30-40% of gay and lesbian teens have attempted suicide.

    Does that put your "harmless pranks" in better perspective?

    Bullying scars people for life. At 57 years of age, I still wrestle with the effects of the torment to which I was subjected as a child. And I will not see another child go through this becauseadults do not understand or care.

    And hate crimes? How many must die for no other reason than that their sexual orientation or skin color is different?

    Zimmerman's case should be thoroughly investigated, and, if evidence of malfeasance is found, prosecuted according to law.

    But that has no bearing on the validity of hate crimes laws.

    You compare hate crimes to mind control, but no one is saying that we can't hate. Rather, hate crimes are illegal acts: invasion of privacy and murder, in these cases. The hate crime statues distinguish motive, and motive has long been taken into account in the commission of a crime, e.g., self-defense vs. manslaughter vs. murder in the first or second degree. There is nothing wrong with considering motive and considering it is not mind control, or anything like. Rather, it's a fundamental part of human justice, since guilt depends not just on the act, but on the reason the act was committed. And society has decided, rightly I believe, that hate crimes are particularly senseless and horrific, and that it was necessary to do more to discourage them.

  167. Let's make a deal Bill. When there is no more institutional discrimination, racism, racial profiling, stereotyping or implicit racial bias committed by our fellow countrymen, particularly of the White hue, I will agree that hate crimes will no longer be a necessary legal tactic.

    I find it humorous that the most privileged person in the country (white, male, presumably straight, Christian and upper class) who has probably never experienced any type of discrimination has written this post. I also find it pathetic that Bill Keller is obviously divorced from the vast amounts of social science research conducted on discrimination, implicit bias, stereotyping, etc. If Bill Keller read some of this research, it would be hard to write an op-ed piece like this.

  168. I cannot recommend your post enough! Nicely done.

  169. Yes, Ravi and Zimmerman are jerks. But they also should go to jail because they were bullies. Hatred always starts with words and actions that show bias or hatred toward an "other" and the "other" must be taken care of because differences should not be tolerated. There are too many cases where people act like jerks to innocent people, or people who have a fragile personality, and set up the latter for a deadly fate. Sadly enough, that is exactly what has happened here. This is why we need hate crimes laws, and for these laws extended to people who are the victims of bullies. We cannot and should not have more teens dying because someone thought too much of themselves, that they are the absolute authority in what goes on in their interactions with people, and if these people do not measure up to their self imposed standards, they should be done away with. period.

  170. I find it utterly amazing that an unarmed teen who was not involved in criminality and was merely minding his business as he returned home with a bag of Skittles and ice tea, can be shot to death and the shooter not arrested or prosecuted. Hate crime or not, this represents injustice. Plain and simple.

  171. From my perspective and my inability to get into Zimmerman's head I am not at all convinced that this is a hate crime.
    On one hand there is a neighborhood watch civilian who violated the rules of his position. He left his vehicle. He followed a suspect. he carried a weapon. He ignored the dispatcher's direction to not follow.

    On the other hand is a teen who has done nothing wrong. He has gone to the store and his returning to the place where he is a guest. It is dark. He is followed by an unknown person who is not in a uniform - not even the uniform of a rent-a-cop. There is no badge visible.

    We do not know what is said by either person, but the kid is put in a position where he fears trouble. He comes from a home miles away where walking the streets at night may not be a good idea. What is his inclination? This is a fight or flight situation and the choice to fight is the one that wins.

    Now who precipitated this situation? Who broke the rules? Who tried to defend himself against an unknown threat? If you are threatened you can stand your ground. Does that apply to the perceived threat? What would you do?

    I do not think that racism was an overriding factor in this, but it sure smacks of vigilantism. That and the police failing to apply common sense

    I am a senior white male Floridian who does not own a gun. I have taken part in our neighborhood watch armed with a flashlight and a cellphone.

    Charlie

  172. In a slightly different light how should one handle the willful dissemination of misleading information to the boarder public that an action or policy scientifically known to be harmful to many thousands both at home and around the world is not harmful. i.e. move a barricade on a freeway construction site that caused hundreds of drivers to drive off an unfinished overpass? Telling folks that the chemicals running into a watershed are harmless, knowing full well they are not? Polluting the atmosphere with chemicals proven to disrupt living systems the world over because higher profits are assured? Are these "hate crimes"? If not what is it? Is it worse to dismember a black behind a car than to be responsible for the starvation deaths of thousands of poor scattered hither and yon?

  173. I have long had a nagging sense of doubt about the wisdom or fairness of hate crime legislation. Thanks for an excellent examination of the issue.

  174. The author misses the point: we're not punishing people for having biases or prejudice, only for committing violent crimes based upon those thoughts. I have no problem with this.

  175. Some crimes are more then the action itself such as in a conspiracy. State of mind is a usual determinate of the degree of a crime. This article makes no sense.

  176. Wow, Mr. Keller. Your privilege and lack of empathy shows. And it does NOT speak well of you. At ll!

  177. I think that a person's thoughts are his own business. However, should his words and/or deeds harm another, then his actions should be subject to the rule of law. But factoring intent into the punishment for a crime has always seemed subjective and arbitrary to me, so I would tend to agree with Bill Keller and Professor Hurd. And no matter how awful human behaviour can be, a nation state, as the agent of its citizens, should never stoop to telling them what they should think.

    As hope for the future, I would offer a phrase from a generation younger than that of Mr. Keller and myself:

    - From KnowYourMeme.com: "Haters Gonna Hate is a catchphrase used to indicate a disregard for hostile remarks addressed towards the speaker."

    - From UrbandDictionary.com: "Haters Gonna Hate - A phrase used to acknowledge individual superiority in the face of negative external accusations."

  178. Lord Halifax (1633-1695) famously remarked: "Men are not hanged for stealing horses, but that horses may not be stolen." But neither prevention nor deterrence is justice.

  179. This is nonsense. You can hate all you want, and nobody criminalizes you. It is only when you transfer this hate into action that there are consequences. Why is this so complicated? Penal law has always taken the motive of the perpetrator into account, and hate crime laws just formalize that approach for a particularly heinous type of crime. Being a "jerk" is not a crime. Not even being a hateful jerk. Acting on it can be, should be, and in fact is a punishable crime.

  180. We rightly and easily distinguish between first and third degree murder. Isn't that also "criminalizing intent"? Why should the concept of hate crime be any more problematic?

  181. I usually like your columns a lot. Not this one though. I seems quite clear that the shooter targeted this boy because he was black (and wearing a hoodie). What other possible reason could he have? The teen was walking home with candy and tea a 7 PM. How suspicious is that? Rev. Sharpton is doing a fine job, on his TV show and in calling attention to the continuing deadly racism in this country. Zimmerman needs to be tried in court as any other murderer would be.

  182. Mr. Keller:
    I agree with you that Hate Crime laws need to be reviewed. However, as a 78 year old white grandmother, I am much more concerned about the Stand Your Ground Laws of Florida and other states.

    I would like answers, an apology, and action. If I were Trayvon's parents I would be obsessed . I would want to know why Trayvon was treated as a John Doe and why the police failed to take Mr. Zimmerman's clothes and gun into their possession for examination; I would want to know why Mr. Zimmerman was not taken to the hospital and his injuries officially documented by medical personnel if his claim was self-defense.

    I would want an apology from Mr. Zimmerman. At the very least he was guilty of very poor judgment in exiting the protection of his castle and car after the 911 operator told him "We don't need you to do that." I would want an apology from the Standford police department for failing to try to notify me that night.

    And I would want action by the Florida legislature and other states with Stand Your Ground laws. The laws need to state in plain English that self defense does not apply when a private citizen leaves the protection of their home or vehicle.

    Let's not fool ourselves. This case would have died the same day that Trayvon died without answers, without an apology, and without action if Trayvon's lawyer and parents had not asked the "rabble rousers" for help..

    What is the New York Times doing to reduce the number of Trayvon's?

  183. In reading Mr. Keller’s article, Tyler and Trayon, and looking at his grotesque diagram, the implication is unavoidable that those who want to see Mr. Zimmerman undergo a trial which to punish him more severely than an “ordinary” murder. The laws of the United States were established to protect citizens from unprovoked violence and guaranteeing an accused from an undeserved punishment. Neither of these two purposes have been served by shielding Mr. Zimmerman from a trial. What is also offensive is the implication of Mr. Keller’s article that we intended to try Mr. Zimmerman only for his thoughts rather the actual act of shooting an unarmed boy dead. I am fully aware that virtually no one in the United States would be safe if the thoughts alone could be used as a motive for murder.

  184. This seems spoken/written from the point of view of someone who doesn't belong to any group that is usually targeted--i.e. It is the point of view of a rich white male protected in a rarefied environment. Nor is it appropriate to discuss these two cases in the same breath, since we just don't have enough facts in the Florida case. In Tyler's case he was targeted for being gay, which is bias intimidation. The actual time Ravi needs to spend in jail will be determined separately.

  185. The hate that motivates such crimes is felt not just by individuals, but by groups. Those groups encourage and motivate acts of violence against various minorities in our society. Hate crime laws act as counterweights against the encouragement offered by hateful groups to the perpetrators of these crimes. Like the lynch mobs of old, these perpetrators are egged on by haters without the courage to act themselves, and they need extra negative feedback to discourage them.

  186. This would have been a thoughtful article with a strong argument had the author not introduced the completely erroneous declaration that underlying the hate crime laws is the idea that the legal system is penalizing people for their thoughts, rather than their actions.

    What could be further from reality? Feel free to ruminate all you want on dragging a black man from the back of your truck. Write and publish a short story or turn your thoughts into a made-for-TV movie of the week. Do it with the law's blessing.

    The miscreants prosecuted for dragging a man to his death, at least partially because he was black, committed a flesh and blood crime. The hate crime statutes are not designed to punish a person for the thoughts in his/her head during the perpetration of crime but for the thoughts that motivated the crime.

    And the author scores no points with me for suggesting that it was impossible to determine, presumably since he was dead, what motivated the college student to commit suicide. No kidding? That's a situation that the legal system faces daily. The jury obviously believed that the young man's roommate's actions contributed to his death. That's good enough of a determination for me. And if the jury would have determined that the youth was troubled and was destined to harm himself regardless of his roommate's actions, I wouldn't have had a problem with that.

  187. Like so much of our "Christian Nation" with its revered Constitution and apple pie idealism...the disparity between the real and the imagined is enormous.

    Many bad actors, for example, on Wall Street have been exonerated, at the fringes of what is considered legal, because somehow we've allowed the unethical to proliferate, claiming that what is not moral does not necessarily warrant legislative action. While there may be no equivalency between the loss of one's home and the killing of a person, the golden rule is chimeric in this day and age. Unless we wield the stick as well as the carrot preemptively, it seems that community conscience will allow mean spirited maladroits to prevail and the rare leaders shaping the better angels among us, difficult to find.

    Justice is an ever rarer commodity...many of our institutions are quixotic, if not downright hypocritical. We who keep seeing abuses feel we're being duped by laws arranged for the few who can protect themselves at the expense of the many who cannot. For that reason...actions indeed speak louder than words ...or thought.

  188. While the author makes a good theoretical point in that we cannot criminalize thought-crime, these laws serve a purpose when they are utilized correctly, to combat a culture of silence which has its roots in the Jim Crow South. Yes, crimes carry the same penalty, and ought to be punish all offenders equally, but we do not live in a world where justice is truly blind. When crimes against a certain demographic are not punished equally, because those in authority are in agreement with the agressors, these sort of laws are necessary to right the scales. These laws do not punish the thought per se, but rather the resulting action. As the author notes, the people who commit crimes make a choice to do so- these laws punish that choice just like all of our other laws do.

  189. I'm gay, I'm liberal, I want aggressive prosecution of crimes against people, but I oppose hate crime legislation. Punishing someone for their thoughts becomes too subjective. Also, the resentment caused by hate crime legislation is probably counterproductive to the advancement of understanding between groups of people.