Christian Watson – July 29, 2020
There’s an unavoidable truth that drives all political calculations: When a politically expeditious moment presents itself, politicians will seize upon it even at the risk of their convictions and credibility.
Georgia Gov. Brian Kemp is the latest practitioner of such political opportunism.
On June 26, in response to the death of Ahmed Arbery, Kemp, a Republican, swiftly signed HB 426 into law which increased the statutory penalty for hate crimes. Kemp deemed the bill a “sign of progress” and a “milestone” after Arbery’s unjust, racially-murky death earlier this year.
For those unacquainted with the term, the FBI defines hate crimes as “traditional offenses like murder, arson, or vandalism with an added element of bias.” For instance, if a white man sets a home alight without any evident racist intent, he’s charged simply for arson. If he does so while donning a swastika and shouting racial slurs towards its resident, he’s charged with a hate crime.
But hate crime laws really don’t protect anyone and certainly wouldn’t have saved Arbery’s life.
On the morning of February 23, Arbery, a 25-year-old African-American man, headed out on a morning jog around his broader community, like many suburban Americans do every day. He was soon intercepted by two white men, who shot and killed him because they suspected him of perpetrating a string of recent burglaries in the surrounding area. A combination of local law enforcement’s refusal to arrest the duo and prosecutorial incompetence kept them off the hook for two whole months. How, then, could hate crime laws do much if law enforcement refused to do their job?
Indeed, as a black man myself, I’m perplexed that Governor Kemp thinks that I need the thought-police to shield me from racist violence, especially when hate crime laws only apply after an injustice has occurred. True justice is forever lost when executed through subjective means—which is precisely what the concept of “hate crimes” allows. Progress? I think not.
This legislative campaign didn’t just happen in a vacuum.
Last month, Georgia Speaker of the House David Ralston sanctimoniously urged the passage of the legislation because he ostensibly believed it was the right thing. Apparently, so was circumventing the legislative process. No amendments were allowed—effective dissent was smothered beneath a blanket yes or no vote.
The pretext of this legislative campaign is simple: Hate crime laws are vital to protecting minorities.
But the evidence for the idea that hate crimes “deter” would-be offenders is, at best, scarce and, at worst, dubious. The most comprehensive report concerning hate crimes is the FBI’s Uniform Crime Report, which documents reported hate crimes from across the nation. More specifically, on a national level there’s very little long-term research on the intricacies of hate crime legislation and deterrence. In fact, left-leaning publications like Vox have even admitted that there’s no “good research” to show that hate crimes are an effective deterrent to biased violence. Hate crime experts Vox interviewed also expressed doubts that hate crime laws deter crime.
When measured on a state level, the claim that hate crime laws “protect” people becomes even more doubtful. A 2017 Propublica report revealed a striking truth: Most bias-related cases in Texas are not prosecuted as hate crimes, despite the active presence of hate crimes legislation.
Why? One of the more telling reasons Propublica discovered is pretty intuitive: It’s hard for prosecutors to prove intent. In other instances, such as rape or murder, Propublica found that prosecutors simply didn’t use the hate crimes enhancement because it made little difference in sentencing. Thus, they opt to prosecute the action instead of the thoughts behind it. In Texas, prosecutors who did otherwise sometimes risked a hung jury or an overall frustrating conviction process.
Don’t get me wrong: This doesn’t mean laws aren’t useful or necessary because they don’t work sometimes. They are (I’m no anarchist). But it’s simply irrational to pretend that merely punishing “bias” protects anyone.
Even if the new Georgia law had been in full force during Arbery’s unfortunate death, little would be different. Oh, yes, the national press’s tired line about Georgia being “one of only four states” without hate crime laws—which are better understood as thought crime laws—would’ve been welcomingly absent from coverage of his death.
But as for Arbery? Well, the law is only as good as its enforcers.
In Arbery’s case, incompetent prosecutors delayed justice for two months in what appears to be an open-and-shut case. Indeed, Governor Kemp seems to have faith in a system that allowed Arbery’s murderers to nearly escape justice. If he doesn’t, then why give the same negligent prosecutors more power instead of reforming their roles? After all, prosecutors decide who is charged, how they’re charged, and the manner in which those charges are pursued.
Essentially, this new law means little if its custodians aren’t doing their jobs. I can only think of two possibilities: Either Kemp’s moral calculus is off, or he cares more about appeasing political interests than pursuing the truth. But I know one thing for certain—Kemp’s wishy-washy policymaking does not make me safer.
HB 426—and the concept of hate crimes generally—poses a danger beyond mere ineffectiveness. It pairs a subjective understanding of bias with justice, which is meant to be as objective and fair as possible. This fact, more than anything else, is why the concept of “hate crimes” should trouble you.
This is evident within the bill’s text. For example, it requires police officers to create “Bias Crime Reports” whenever an officer suspects someone was victimized due to their class status—race, sexuality, and so on. But that has absolutely nothing to do with real justice.
Think about it: At this point in the investigation, the victim is already victimized. There’s likely sufficient evidence to convict the assailant for their crimes. And yet, by injecting arbitrary characteristics into the mix, justice begins to prioritize the value of Americans on the basis of group identity, not individuality. But as economist Friedrich Hayek famously said: You cannot be just or unjust toward groups or characteristics, only toward individual people. In the event that I was brutalized for my race, I’d rather a police officer worry about what my assailant did—not what he thought.
Here’s the bottom line about hate crime laws: There’s no universal, objective standard for understanding bias. But officers are tasked to uphold rights and the Constitution—both of which are objective and clearly understood things. And in the process of protecting individual rights, which are an objective value, police shouldn’t be burdened with a subjective calculus about possible underlying biases.
True justice is built upon clear-cut, objective criteria—all the more reason why the subjectivism of hate crime laws won’t protect minorities.
So, I’m certain Governor Kemp had good intentions, but the details of his new hate crime law are far less compelling. Perhaps we should leave the struggle against hate to individual Americans, who have made great progress on that front over the years.