Early in our Republic, James Madison declared that no American would be punished for his "thoughts." Madison never anticipated Democrat John Conyers, the Michigan congressman who, on a vote of 237 to 180 in the House, has successfully passed his Local Law Enforcement Hate Crimes Prevention Act. If approved by the Senate, which is likely, the current federal law providing longer sentences for perpetrators of violence on the basis of race, religion, color or national origin will be expanded to include sexual orientation, gender, gender identity or disability.
There are already 45 state "hate crimes" laws — differing in language and especially in clarity — but now it will be even easier for the federal government to also get involved in state "hate crimes" prosecutions when a state prosecutor is unwilling or unable to act on these charges.
This greater power of the federal government to define which free expression of our "biased" thoughts will lead to heavier criminal sentences may provide more work for the FBI.
I have been writing about — and researching — state "hate crimes" laws for more than a decade and have found proof of what NYU law professor James Jacobs writes in his definitive book, "Hate Crimes: Criminal Law & Identity Politics" (Oxford University Press):
When a prosecutor needs to build a stronger case, "witnesses may be called to testify about how the defendant told or laughed at racist or homophobic jokes, or whether he used racial slurs. In Grimm v. Churchill (1991), the arresting officer was permitted to testify that the defendant in a "bias" assault had a history of making racist remarks. Similarly, in People v. Lampkin (1983), the prosecutor presented as evidence racist statements that the defendant had uttered six years before the crime for which he was on trial. In effect, a hate-crime trial may become a wide-ranging inquiry into the defendant's character, values and beliefs."
Watch what you say, and try to remember what you have said in the past. Other prosecutorial questions also may include magazines or other publications you read, or even which recordings you listen to.
As Sen. Ted Kennedy, D-Mass., a relentless spear header of hate-crimes legislation, persuades his colleagues to enact a statute with the same goal as John Conyers' in the House, I offer to those senators a report by a former Brooklyn assistant district attorney, Migdalia Maldonado, with experience on these cases:
"Given the heightened social awareness of bias crimes and the concomitant special attention that allegations of this sort receive from the enforcement officials and the media, the complainant is keenly aware that if the crime perpetrated against him or her is deemed a bias crime … the perpetrator will be dealt with more harshly by the courts.
"A complainant, therefore, has an incentive to tailor his or her presentation of facts so as to obtain a bias-crime designation. … This motive … leads to a relatively high incidence of false reports."
Enthusiastically supporting the hate-crimes bill that passed the House, The Washington Post, in a careless, "politically correct" editorial, "Protection from Hate," ended its encouragement of the Senate — to follow the House's lead — by using the ever-present mantra of supporters of super punishing odious speech that prosecutors can connect to a crime against certain classes of victims:
"Crimes that target someone because of his or her race or sexual orientation are more than an offense against that individual. They are crimes that terrorize whole communities."
But what of the millions of the rest of us who are not members of communities given special guarantees of harsher penalties against their attackers?
Some years ago, a young white woman, I heard during my research, was sexually assaulted and terrorized by a white predator. A friend of hers, another white woman, was also the victim of similar brutality by a black man. The white attacker of the first white woman received a significantly shorter prison sentence than the black attacker of the second woman — his act having been prosecuted and judged a "hate crime."
The first white woman was greatly puzzled. Angrily, she said, "Was what happened to me of less importance to the law then what happened to my friend?"
So much for "equal protection of the laws." If the president signs this addition to federal and state "hate crimes" into law, there will be ever expanding demands by other communities that they too must be included. Would it eventually be a "hate crime," with extra penalties, to assault someone for the category of only being a member of Congress?
Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of many books, including "The War on the Bill of Rights and the Gathering Resistance" (Seven Stories Press, 2004).