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Opinion

Shootings in Sikh temple and Arizona: Which crime is worse?

Which is worse? The Sikh temple shooting in Wisconsin by Wade Michael Page, or the shopping mall shooting in Arizona by Jared Lee Loughner? They both killed the same number of people. Yet one would be classified as a hate crime, with tougher penalties. Why distinguish?

By Jonathan Zimmerman / August 10, 2012

Sikh women pray in memory of the victims of the Sikh temple shooting in Wisconsin, outside the temple for prayer in Deptford, N.J., Aug. 8. Op-ed contributor Jonathan Zimmerman writes: Do hate crimes 'do greater harm to their targets than attacks that are not overtly motivated by prejudice? I doubt it. If anything, so-called random shootings terrorize a wider swath of people.'

Jose F. Moreno/Camden Courier-Post/AP

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Last Sunday, Wade Michael Page killed six people at a Sikh temple in Wisconsin before being wounded by a police officer and taking his own life. Two days later, Jared Lee Loughner pleaded guilty to killing exactly the same number of people at an Arizona shopping mall last year.

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Who committed a worse crime? At first glance, it seems like a ridiculous question: One murderer’s victims are as dead as the other’s. But under US state and federal “hate crime” laws, the answer is probably Page. And that might be the most ridiculous thing of all.

An avowed white supremacist, Page most likely targeted his victims because they were of a different color or perhaps mistook them as Muslims. All but three states now have laws providing for enhanced penalties when a crime is motivated by racial, ethnic, or religious prejudice. So does the federal government, which broadened its hate-crime law in 2009 to include attacks based on sexual orientation.

Page, then, would be judged more harshly than Mr. Loughner – whose goal was to murder former Congresswoman Gabrielle Giffords – and possibly than James Holmes, who allegedly killed 12 moviegoers at a Colorado theater last month.

We still don’t know what may have motivated Mr. Holmes, whose victims seem to have been chosen at random. And that’s the key distinction here. If you deliberately aim to kill or injure a certain kind of person, we will penalize you more than if your targets are haphazard and arbitrary.

Why? In America, after all, we’re free to say and think whatever we want; we criminalize behavior, not belief. So how can we interdict some behaviors more strongly because of the belief that seemingly lies behind them?

Here defenders of hate-crime statutes invoke the principle of harm, which is deeply inscribed in criminal law: The greater the injury resulting from a given act, the more we punish it. So extra penalties for hate crimes reflect not their perpetrators’ noxious opinions – which are constitutionally protected – but rather the far-reaching effects of their crimes.

Or so the Supreme Court said in a 1993 decision upholding Wisconsin’s hate-crime law, under which Wade Page would probably have been prosecuted. Citing briefs by the American Civil Liberties Union and the Anti-Defamation League, then-Chief Justice William Rehnquist noted that bias-motivated crimes “inflict distinct emotional harms on their victims” and “incite community unrest.”

Rehnquist went on to quote the English jurist William Blackstone, whose “Commentaries” had an enormous influence on American law: “It is but reasonable that, among crimes of different natures, those should be most severely punished which are the most destructive of the public safety and happiness.”

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