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The Debate Over Hate

are bias-crime laws the answer?

Hate crimes have long been a fact of life in America, but public awareness of such crimes and the legal debate over what to do about them has escalated in recent years. A panel discussion held at BC Law in October brought together three experts whose differing opinions highlighted the moral and legal complexities of selecting certain classes of people for special legal treatment.

The "Hate Crimes and Punishment" panel, sponsored by the Lambda Law Students Association in honor of National Coming Out Day, examined whether legislation should recognize bias-based crimes committed against members of a class of people-say gays or African Americans-by codifying certain classes as "protected" and enhancing penalties for perpetrators.

Boston University Professor Frederick M. Lawrence, author of Punishing Hate: Bias Crimes Under American Law and a member of the Massachusetts Hate Crimes Task Force, defended bias-crime statutes. "Bias crimes tend to fracture us in a serious, dangerous way," he said. Citing studies detailing the aftereffects of bias crimes, Lawrence said that the impact on victims is often deeper and more stigmatizing than on victims of parallel non-bias crimes. Moreover, he argued, unlike parallel non-bias crimes, bias crimes seriously affect other members of the targeted class, augmenting their feelings of vulnerability and insecurity. By writing laws that protect frequently targeted groups, legislatures validate not only the existence of the group, but their particular vulnerability, and in so doing, directly combat the hateful and divisive purpose of the bias crime.

Laws that Balkanize
"Laws that create double standards are immoral and unacceptable," countered Boston attorney and National Law Journal columnist Harvey Silverglate. "We will never eliminate bias and prejudice. We can only hope to maintain a system in which people are treated equally under the law."

Drawing on the history of common law and the modern civil rights movement, Silverglate, who is co-director of the Foundation for Individual Rights in Education, argued against bias-crime legislation, saying Martin Luther King Jr.'s civil rights movement was based upon equality under the law; nothing more, nothing less. "What we need in this country is a little more frankness and honesty, and a little less sensitivity and pandering," Silverglate said. "Hate crimes legislation increases the balkanization and decreases the message that we are all in this togetherÂ…. The trend toward special treatment on hate crimes is counterproductive to this [message]."

Ellen J. Zucker '94, a criminal defense attorney at Boston's Dwyer and Collora and a member of the Massachusetts Chapter of the American Civil Liberties Union, took issue with Silverglate's "balkanization" contention. "I don't think that [those who favor bias-crime legislation] are the ones who are behind this balkanization," she said. "We are not the ones who balkanized in the first place." Looking for Alternatives Zucker was less convinced than Lawrence, however, that bias-crime laws are the most appropriate response to hate crimes, and she warned about the difficulties inherent in legislating for the few. Which groups, she asked, should be protected by bias laws? Are not women, the handicapped, and the elderly also deserving of special status under the law, and if not, where and how should society draw the legal line?

Zucker offered alternatives to legislation, among them better training for police officers, social workers, and prosecutors who deal with the perpetrators and victims of hate-based violence.

She also tackled the subject of punishment, arguing that stiffer penalties for hate crimes do not address the deeper social issues of prejudice and violence. "It's dangerous for us to fool ourselves into thinking that by increasing penalties, we've done something," Zucker said. "Because we haven't."

-Matt Frankel '05

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