Ryan Haynie | August 20, 2020
Hate crimes create ‘thought police’
On August 10, The Oklahoman highlighted that LGBT persons are not protected by Oklahoma’s hate crime statute. The story reported an attack by two men against Christian Council, a gay man. According to Council, a simple car honk caused two men to become upset with him. The confrontation became violent when the two men attacked Council. As a result of the attack, the two men were arrested.
That’s the end of the story in Oklahoma, but in most states the prosecutor could seek enhanced penalties depending on what the attackers were thinking at the time. In Council’s case, several anti-gay slurs were uttered against him prior to the attack. The Oklahoman reported that, despite evidence that the attack was motivated by anti-gay animus, the police report did not reflect that a hate crime occured.
The distinction between run-of-the-mill assault and battery and a hate crime can be substantial. According to The Oklahoman, the maximum jail time faced by Council’s alleged attackers is 90 days. If they could be charged under Oklahoma’s hate crime statute, the first offense is a misdemeanor that carries up to a year imprisonment, and becomes a felony on the second offense. The second offense carries a term of imprisonment up to 10 years.
Oklahoma’s hate crime law is not limited to assault, but covers damage to property, threats, and incitement against protected classes as well. Despite the breadth of the conduct covered, the protections of the statute have not been extended to the LGBT community. The statute, as written, protects race, color, religion, ancestry, national origin, and disability as its only protected classes.
Instead of adding more protected classes, I propose we eliminate hate crimes altogether. Hate crimes punish already-illegal conduct (like assault, battery, and destruction of property). But hate crimes punish conduct more severely because of what the defendant was thinking or saying at the time. In other words, by engaging in otherwise legal conduct while committing certain crimes, the defendant faces enhanced penalties. They enhance punishments for thoughts, words, and feelings. George Orwell had a term for this: thoughtcrime. Laws that punish thoughtcrime ask law enforcement to become the Thought Police.
“Thoughtcrime was not a thing that could be concealed forever. You might dodge successfully for a while, even for years, but sooner or later they were bound to get you.” —George Orwell, 1984
Defenders of hate crime statutes argue enhanced punishments are justified because a crime motivated by bias is more serious than the same crime standing alone. Many of these defenders are organizations otherwise dedicated to advancing criminal-justice reform—including the ACLU, Anti-Defamation League, NAACP, and Southern Poverty Law Center. But the common arguments and themes of criminal-justice reformers may cut against their justification for hate crime laws.
A common refrain in the criminal-justice reform movement is we should imprison those people we’re afraid of—not people we’re mad at. There is good reason to incarcerate someone who commits an aggravated assault. We have reason to be afraid of that person. But it doesn’t follow that our anger against the same person because their crime was the result of internal bias should result in a harsher sentence.
Another catchphrase offered by criminal-justice reformers is “victimless crimes.” When it comes to some crimes, the victim is obvious. In other circumstances, no victim exists, so law enforcement will often refer to society as the victim. This is often the case in drug crimes, a fact bemoaned by the criminal-justice-reform crowd. But when it comes to hate crimes, left-wing organizations are eager to argue that society and the protected class are additional victims. Different standards for different crimes because of political ideology isn’t criminal justice; it’s vengeance.
Finally, left-wing civil rights organizations rightly cry foul when they feel citizens are being prosecuted for exercising their First Amendment rights to speech and assembly. But they take a U-turn when it comes to hate crimes. In the landmark Supreme Court case dealing with hate crimes, Wisconsin v. Mitchell, all four “civil rights” organizations mentioned above filed amicus briefs in favor of the Wisconsin hate crime law. In that case, the Supreme Court held the Wisconsin law did not violate the First Amendment because Mitchell’s case involved conduct (aggravated battery) that was not protected by the First Amendment.
The Supremes weighed in and found there was no First Amendment violation under the federal constitution. That doesn’t mean Oklahoma must continue with this law on the books. Nor would it prevent an Oklahoma state court from ruling the state constitution protects individuals to a greater extent than the federal constitution. No matter how it chooses to do so, Oklahoma should consider repealing or striking down its hate crime statute. We shouldn’t ask law enforcement to be the Thought Police.
Criminal Justice Reform Fellow
Ryan Haynie serves as the Criminal Justice Reform Fellow for the Oklahoma Council of Public Affairs. Prior to joining OCPA, he practiced law in Oklahoma City. His work included representing the criminally accused in state and federal courts. Ryan is active in the Federalist Society, serving as the Programming Director for the Oklahoma City Lawyer’s Chapter. He holds a B.B.A. from the University of Oklahoma and a J.D. from the University of Oklahoma College of Law. He and his wife, Jaclyn, live in Oklahoma City with their three children.