Over the past decade, nearly every state has passed a new kind of law, one that metes out special punishment for racists and bigots who commit crimes. Now many of these laws are being challenged.
Those doing the challenging - civil libertarians and defense lawyers - say the laws amount to thought control, well-intentioned but dangerously flawed efforts to punish people because they hold unpopular views.
"The basic argument . . . is that it creates a `thought crime,' " said Kevin O'Neill, Ohio legal director of the American Civil Liberties Union, which is challenging the law in that state.
THREE OHIO CASES TO BE REVIEWED
The Ohio Supreme Court is scheduled to review challenges of the law next month in three cases involving whites who allegedly taunted and threatened black people. In one case, a black man on a camping trip said he fled in terror after white campers on either side of him began making loud, racist threats.
The Wisconsin Supreme Court is considering a case in which a black man was convicted in the racially motivated beating of a white teenager. And a cross-burning case in St. Paul, Minn., is under review by the U.S. Supreme Court.
Those who support laws against hate crimes say they are not only constitutional but are vitally needed to control an upsurge of crimes motivated by prejudice against blacks, Jews, Asians, homosexuals and other minorities.
Just in recent weeks, there have been reports documenting a 31 percent increase in anti-homosexual incidents in five major cities, and a 22 percent increase in all "hate crimes" in Los Angeles. The laws that aim to punish such incidents are supported by a range of civil-rights groups. Over the past decade, in large measure through the efforts of the Anti-Defamation League of B'nai B'rith, they have been enacted in nearly every state.
According to the ADL, only Utah, Wyoming, Nebraska and Alaska lack some form of hate-crime law. The laws have been challenged in many states and in some cases have been overturned and rewritten.
But their supporters say they aren't worried about the latest attacks on the laws and remain convinced that they are constitutional.
"I don't view it as a backlash," said Ohio Attorney General Lee Fisher, who wrote his state's ethnic-intimidation law when he was a legislator and now is about to defend it in court.
"It is not unusual for laws like these to be tested in the courts," Fisher added.
Steven Freeman, legal director of the Anti-Defamation League, agreed. "If I was a defense lawyer, I'd be doing the same thing," he said.
Even within the ACLU, there is anything but unanimity about the laws. Many civil libertarians believe they are constitutional.
"You can't make racial insults alone a crime," said Stevie Remington, legal director of the Oregon ACLU. But if bigotry is the motivation behind a crime - gay-bashing, for instance - it deserves extra punishment, she said.
The Oregon ACLU is one of several state affiliates of the civil-liberties union that have taken positions in favor of hate-crime statutes. The ACLU's national board is due to consider a proposal to take a stand against the laws.
ACLU DRAFTS FREE-SPEECH PROPOSAL
The proposal was drafted by an ACLU free-speech committee that was itself split on the issue. The majority came out against hate-crime laws, saying they violate First Amendment rights to free speech. The group submitted a report that encapsulates the argument against the laws.
"Assume a beating that would ordinarily result in imprisonment for a year," the report said. "Now, on proof that the assailant was motivated by racial or other additional prejudice the punishment becomes imprisonment for two years.
"The deprivation of liberty for a second year is the direct consequence of beliefs and expression that, however deplorable, are protected by the First Amendment. The state is depriving a person of liberty not for what he or she did, but for what that person thinks."
Gara LaMarche, the chairman of the ACLU committee, wrote a dissenting report that supported carefully drafted hate-crime laws. In an interview, LaMarche compared them to laws that outlaw discrimination. "If it can be determined that the target of a violent act was chosen on the basis of their race or religion or sexual orientation, is that an enhanced crime?" he asked. "I would say it is."
Supporters of hate-crime laws say they are no different from, say, laws that make premeditated murder a more serious crime than murder committed in the heat of passion.
O'Neill, the Ohio ACLU lawyer, insisted there's a difference. Murder laws, he said, simply recognize that it's not as bad to explode in anger than to plan out a killing with cold calculation.
In the case of hate-crime laws, he said, "This is an effort by the government to punish someone for having the wrong views." O'Neill's fear is that the laws could someday be turned against people for whom they were not intended. For instance, he said, what if they're used against critics of the government?
The argument goes on and on.