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.
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.”
The same idea underscored federal hate-crime measures, which grew steadily after the 1998 murders of James Byrd and Matthew Shepard. Byrd was an African-American dragged to his death by whites who had ties to the Ku Klux Klan; Shepard was gay, lured out of a bar and beaten to death.
“Hate crimes are a form of terrorism,” the late Sen. Edward Kennedy told Congress in 1998. “They have a psychological and emotional impact which extends far beyond the victim.”
He was right, of course. Consider the Wisconsin murders and the toll they have taken on America’s Sikh community, which was already reeling from a long series of racist episodes. Four days after the 9/11 World Trade Center attacks, a turban-wearing Sikh was killed at his gas station by an assailant who apparently mistook him for a Muslim. Since then, the Washington-based Sikh Coalition has documented more than 700 incidents of anti-Sikh violence and intimidation.
But do these kinds of acts 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.
Indeed, these shootings remind us that anybody in America can be a target. Regardless of race or ethnicity – or sexual orientation – any one of us can be shot to death by a Jared Loughner or a James Holmes. They do not discriminate. And that is every bit as destructive to “public safety and happiness” – to quote Blackstone – as any racist attack.
So it’s time to get rid of hate-crime laws, which assume that an attack motivated by bigotry is somehow worse than one impelled by anger, greed, or anything else. Tell that to the parents, spouses, and children of the people who died in Arizona and Colorado.
Ostensibly, hate-crime measures aim to safeguard minorities. But they thereby blind us to lone and anonymous shooters, who don’t advertise their anger or humiliations on racist websites or anywhere else. That’s the biggest danger right now, to all of us. Let’s stop pretending otherwise.
Jonathan Zimmerman is a professor of history and education at New York University. He is the author of “Small Wonder: The Little Red Schoolhouse in History and Memory” (Yale University Press).
Editor's note: An earlier version listed a state incorrectly in the headline.