Political entrepreneurship involves devising benefits to excite or mollify niche constituencies. Hence H.R. 1592, the Local Law Enforcement Hate Crimes Prevention Act of 2007, which has passed the House, trailing clouds of sanctimony -- lots of members announced their hatred of hate.
Hate crime laws -- 45 states already have them; Congress does not mind being duplicative -- mandate enhanced punishments for crimes committed because of thoughts that government especially disapproves. That is, crimes committed because of, not merely accompanied by, those thoughts. Mind-reading juries are required to distinguish causation from correlation.
The federal hate crime law enacted in 1968 enhanced punishments only for crimes against persons engaged in a federally protected activity, such as voting. H.R. 1592 would extend special federal protections to persons who are crime victims because of their race, color, religion, national origin, sexual orientation, gender, gender identity or disability. But there are many other groups, so there will be other hate crime bills.
Hate crimes are seven one-hundredths of 1 percent of all crimes, and 60.5 percent of them consist of vandalism (e.g., graffiti) or intimidation (e.g., verbal abuse). Local law enforcement organizations favor H.R. 1592, which promises money. Among the more than 200 organizations supposedly ardent for the bill are the American Music Therapy Association, Aplastic Anemia Foundation of America, Catholics for Free Choice, Easter Seals, Goodwill Industries, International Dyslexia Association, Rock the Vote, Women's Alliance for Theology, Ethics & Ritual. Who knew?
Hate crime laws are indignation gestures. Legislators federalize the criminal law in order to use it as a moral pork barrel to express theatrical empathy. They score points in the sentiment competition by conferring special government concern for more and more particular groups.
Laws hold us responsible for controlling our minds, which should control our conduct. But government increasingly wants to inventory and furnish our minds, removing socially undesirable desires. Law has always had the expressive function of stigmatizing particular kinds of conduct, but hate crime laws treat certain actions as especially wicked because the actors had odious (although not illegal) frames of mind.