Shephard case illustrates dangers of hate crimes legislation

By C. Dodd Harris IV
web posted November 22, 1999

Proponents of so-called "hate crimes" legislation believe that extra penalties are needed for certain crimes based on the motivations of the perpetrators. Acts of violence against racial and ethnic minorities, or against homosexuals, they say, are not sufficiently deterred by the usual criminal penalties. What is needed, then are extra, often Federal, penalties targeted at crimes motivated solely by "hate."

Federal law already expands Federal jurisdiction to State crimes based on "race, color, religion or national origin" [18 USC 245(2)]. In the wake of the brutal beating death in October, 1998 of Matthew Shephard, gay activists and others renewed their calls to extend title 18 to include sex and sexual orientation.

The pressure to expand the "hate crimes" definition was particularly effective given the gruesome nature of the attack. Shephard was pistol-whipped with a .357 Magnum and left, barely alive, tied to a fence. The idea that anyone would do such things to another human being for no more reason than that he was homosexual shocks the conscience of reasonable men.

Salon magazine reports this week that, with the release of the statements of Matthew Shephard's killers, it now appears very unlikely that the murder was motivated by "gay panic". In other words, Henderson and McKinney were not reacting to an unwelcome sexual advance when they beat and killed Shephard. Sgt. Rob DeBree, the chief investigator in the case, stated that "It started out as a robbery and burglary, and I sincerely believe the other activity was because he was gay." But the new evidence, obtained from Henderson's confession, raises doubts.

Opponents of "hate crimes" legislation have long argued that these laws are severely flawed. First, they have an eerie resemblance to thought crimes. By adding extra penalties for motivation, we move very close to criminalizing the content of a person's head.

Second, by adding penalties for a violent crime that applies only when the victim is a member of a specified minority, we create an impression that some people's lives are more valuable than others'. A black man murdered by another black man is a victim of murder and his killer subject to the ordinary array of criminal sanctions. But the white killer of a black woman may be at risk of additional prosecution based on her race. If the advocates have her way, her sex or even her sexual orientation would also open up additional criminal penalties. The Federal government will not step in and assert jurisdiction in the first case but in the second they can.

Third, prosecutions for "hate crimes" are inherently arbitrary. The choice of which cases to prosecute, and how vigorously to pursue them, is already a somewhat arbitrary process. Adding the wholly political "hate crimes" decision to an already unbalanced process is hardly likely to increase the fairness of the criminal justice system.

Lastly, the Federalization of crimes is at odds with the principles of federalism and Constitutional government. Prosecution of crimes within its territory is the prerogative of the State and Federal criminal jurisdiction is supposed to be sharply circumscribed. Giving extra Federal jurisdiction to crimes traditionally left to the States undercuts the foundation of our federal system. Further, a defendant's right not to be subjected to 'double jeopardy' is endangered, as it was in the Rodney King case, by a possibility of a second - Federal - trial even if acquitted at the state level.

The defence in Henderson's trial laid out a "gay panic" defence: They tried to convince the jury that Shephard's murder was the result of Henderson over-reacting to a sexual advance by Shephard. Now that McKinney's trial has ended, it appears that there is no evidence that this was the case. If Shephard grabbed Henderson's privates, as Henderson's lawyer contended (albeit somewhat more graphically), McKinney didn't see it. Since the three men were all in the front seat of a pick-up together, it seems unlikely that McKinney would have failed to see any such advance - especially if it so incensed Henderson as to lead him to beat and kill Shephard.

So, it was a simple robbery that may or may not have escalated into murder because Shephard was gay. But, we now have only Sgt. DeBree's belief that it was motivated by anti-homosexuality to support this contention. Imagine if we had instituted a Federal prosecution of these two for committing a "hate crime." As a practical matter, proving motivation is a very difficult thing to do in criminal court. A conviction for first-degree murder requires proof that the killer not only acted intentionally but with "premeditation and deliberation." Second-degree murder requires only intent. As such, prosecutors often indict only defendants for second-degree murder because they lack the requisite proof. Premeditation and deliberation are mental processes and, as such, rarely leave physical evidence.

So too motivation: Unless the killer explicitly states at some point what his motivation is, there's very unlikely to be enough proof to convict "beyond a reasonable doubt." Some might say this is an argument in favour of "hate crimes" legislation; after all, only the truly guilty will be convicted. Fair enough, but our already overloaded court system will nonetheless be bogged down by a great many cases which will fail for lack of proof.

A year ago, there was a widespread belief that Matthew Shephard was the victim of a purely hate-motivated attack. Now we are given to wonder if that was true. Sgt. DeBree thinks so, but we'd be hard-pressed to prove it on his belief alone. It is possible that Shephard might just have been a victim of an ordinary crime of violence but that his death was used by opportunistic advocates to advance their own cause.

If we had prosecuted Henderson and McKinney for committing a "hate crime", we might now be looking back and wondering if that just. We might have just wasted some of the government's money on an unsuccessful prosecution. But what if they'd been convicted? The newly revealed facts should give us pause and force us to reconsider adding more to the list of "hate crimes." Given the difficulty in proving the contents of another person's thoughts, perhaps the better idea is to make the list shorter.

C. Dodd Harris IV is a second-year student at Pepperdine University School of Law. This is his first piece for Enter Stage Right.




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