In the wake of the grotesquely brutal murder of James Byrd Jr. last spring in East Texas, there is renewed support for some kind of legislative action against “hate crimes”: offenses motivated by the “race, color, disability, religion, national origin, or ancestry, or sexual orientation” of the victim. That is the language of S.B. 275, introduced by State Senator Rodney Ellis, and now memorially titled the “James Byrd, Jr. Act.” Ellis is attempting to improve his seldom-used 1993 statute; the new bill includes revised language that tracks a U.S. Supreme Court decision upholding such laws.
The bill has gathered support from a group of generally progressive legislators, and the strong endorsement of the Texas Civil Rights Project. “The time is long past for Texas to undertake dramatic and decisive efforts to reduce and lessen hate crimes in Texas,” said Project Director James Harrington. “They occur with too much frequency and regularity [and] inflict untold physical and lasting psychological damage on their victims.” According to the unevenly collected figures provided by the Department of Public Safety (some communities pay more attention than others), between 1992 and 1997, nearly 2,300 incidents of such crimes — from vandalism to murder — have been reported in Texas.
It is difficult to deny that some sort of action against crimes of bias and hatred is needed. To consider only the example of race, the Byrd murder highlighted what has become apparent in the culture at large for the last few years: from the U.S. Congress to the university campus, casually racist discourse — often in the guise of noisily opposing “political correctness” — has become increasingly acceptable, resulting not only in retrograde social policy like the re-segregation of public education, but in the popular delusion that racism is no longer a serious problem. The horrific death of James Byrd, if it does nothing else, should put an end to that wilful mass hallucination.
But emotional legislation too often makes bad law. Senator Royce West, for example, has also introduced a bill in response to the Byrd murder. His S.B. 49 would add, to the state’s already capacious list of capital crimes, murders of “an individual selected because of the person’s bias or prejudice against a group.” That vague language is not likely to stand constitutional scrutiny, but it would not be improved by borrowing from the Ellis bill. We already have far too many reasons for state murder in Texas, and the Jasper prosecutors obviously didn’t need additional legislative sanction to seek the death penalty. But piling death upon death will not end the toll.
Supporters of the hate crimes law insist their intentions are less punitive than preventative, and specifically aimed at keeping relatively minor hate crimes — racist vandalism, homophobic assaults — from escalating into murderous outrages. “Acts of such brutality do not just happen,” said Ellis. “They are the product of years of subtler acts of hatred that are often ignored until they explode.” The Byrd Act would allow increasing the penalty for specific crimes a court determines were specifically motivated by bias. “As it is now,” said a spokesman for Senator Ellis, “the law does not distinguish between someone knocking over a person’s mailbox, and someone burning a cross on his lawn. This law would allow a prosecutor to make that distinction.” It would also designate a hate-crimes prosecutor in the attorney general’s office, and allow state support for expensive prosecutions in smaller counties.
But allowing prosecutors even more discretionary power, especially in Texas, is not necessarily a comforting proposition. In murder cases, for example, prosecutors are notorious for deeming white victims more deserving of capital prosecutions than black ones. What’s to prevent them from deciding that certain forms of hatred are more worthy than others?
Harrington admitted that capricious prosecution can be a problem, and that hate crime laws inevitably run the risk of outlawing “thoughts” or speech, instead of actions. But he says the educational aspects of the Byrd Act override these considerations, and should create mechanisms to allow victims to come forward, to prepare police to deal with hate crimes, and to change public attitudes. “The law isn’t as important as the message that it’s sending,” Harrington told the Observer, “that this is a problem the police and society have to deal with.”
But the law is a woefully blunt instrument for “sending a message.” The sections of the Byrd Act dealing specifically with “content of speech” are very troubling, making illegal not just explicit calls to specific violence, but a victim’s supposed “reasonable fear” of violence in response to the undefined “content” of speech. This provision is an open invitation to selective prosecution of political free speech, and should be eliminated.
Harrington admits that Texas has a sorry history of dealing with social problems through the criminal justice system, but he believes that hate crime laws, properly administered, can be part of a “multi-faceted approach” that includes training of police and innovative penalties of perpetrators. “When we look at hate crimes, we’re looking at it from the top down — from the perspective of horrendous crimes, like the James Byrd murder,” he said. “But that’s not what’s happening. Most of these are lower-order crimes, and the law has to go hand in hand with other things, like creative diversionary punishment…. That makes sense to me.”
Relying on the creativity of the Texas criminal justice system is not generally a happy prospect. We join the sponsors in hoping the James Byrd, Jr. Act may be a rare exception. — M.K.