Thoughts Cannot Be a Crime

In the wake of Donald Trump’s election as 45th president of the United States, there has been a spike in the number of reported incidents of harassment and abuse of Muslims, Jews, African-Americans, and members of the LGBTQ community across the country. Some of these incidents have later turned out to be fabricated. Even so, the number of actual incidents of racial, religious, or gender-based crimes has spiked in the past month. This is no surprise if you heard the words and tone of Candidate Trump at his rallies. Of course not all Trump supporters are racist, homophobic, or biased against non-Christians. That would be a ridiculous claim and it is patently false.

Donald Trump received a LOT of votes—in fact, he got just 3 million fewer votes than Barack Obama in 2012 or Hillary Clinton in 2016. It would be ridiculous to believe that all 63,000,000 Trump voters are racist, sexist, homophobic, religious bigots. But of that 63,000,000 people, some miniscule percentage are. And those who are now feel vindicated. They voted for Donald Trump because they believe that the only true Americans are straight, white, and Christian. And because Donald Trump won, they may now feel free to act on some of their baser instincts. Their actions have included breaking windows, spray-painting swastikas, screaming abuse at people wearing head scarves and turbans, and physically assaulting people. These actions are certainly driven by hate.

BUT, the fact that a person’s actions are driven by hate does not make them guilty of an additional crime. 

I believe that hate crime legislation, as well-meaning as it is, is unconstitutional.

It is already illegal to paint on someone else’s property, to threaten people with violence, to push or shove someone who has done nothing to you, or to run them off the road. These are all crimes if you do them on purpose. If a person arrested for any of these actions is charged with an additional crime because the assailant hates the victim due to the victim’s race, religion, or gender identity then the government has just outlawed a thought or a feeling. Maybe this is on my mind these days because I am reading George Orwells’ classic novel 1984 for the first time. Hate crime legislation creates a category of ThoughtCrime that I do not believe consistent with the Constitution.

To see how indefensible hate crime legislation is, let’s turn things around. Suppose a law was passed that said the following: “Stealing the property of another person is illegal. If, however, your motive for stealing their property is love, then you have committed a lesser crime.” It is easy enough to imagine a single parent with a sick child. They have no insurance coverage. The child needs a prescription, but the parent cannot afford it. The parent grabs $50.00 from the cash register of the store where they work and uses it to pay for medicine for the sick child. The motive for the theft was love, so in keeping with “love crime” legislation the thief is not charged with robbery but is instead charged with some lesser crime.

It becomes clear that making the motive, as well as the act, subject to separate charges is not in keeping with American principles of justice. If you want to let people know that their motives are as reprehensible as their actions, leave judges and juries room in sentencing guidelines. This is already the case in most places for most crimes. Judges and juries are allowed to consider mitigating circumstances when they consider punishment—and this is as it should be. Hate crimes legislation is unconstitutional and unnecessary.

To any right-wingers reading this who are agreeing with me, follow along to the next example and see if you still agree.

This is a line from the Flag Code of the United States of America:  

“When a flag is so tattered that it no longer fits to serve as a symbol of the United States, it should be destroyed in a dignified manner, preferably by burning. The Veterans of Foreign Wars, American Legion, Boy Scouts of America, Girl Scouts of America, the military and other organizations regularly conduct dignified flag-burning ceremonies.”

The code calls for the burning of the United States flag.

Recently President-elect Trump tweeted “Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!” Was Donald Trump REALLY calling for the jailing of Veterans of Foreign Wars, American Legion members, Boy Scouts, Girls Scouts, and others who regularly burn the flag?

Of course he wasn’t. He was calling for the jailing of people who burn the flag in protest. In other words, he was calling for people to be punished for their thoughts—which is exactly what the US flag does NOT stand for.

We live in a sprawling country with people from everywhere. It is our greatest strength. And, it is our greatest challenge. How can we live together and still leave room for such strong feelings and beliefs? Certainly not by making feelings and beliefs crimes. And not by hunkering down on our side of the battle lines we seem to etch more deeply every day with every issue. I am going to work hard in 2017 to step out from behind my bunker and see where there is common ground. Maybe all that will mean is getting everyone mad, but it’s a worth a shot. I can’t live four more years feeling like I am always at the ready to engage and attack and defend.