In the wake of recent deadly shootings, Texas Gov. Greg Abbott has asked his state legislature to consider making violence targeted at police a hate crime. While increasing penalties against those who kill or injure cops can help protect the men and women who protect us, new hate crime laws are a poor way to achieve that goal. Specifically targeting law enforcement is not a hate crime; it is an act of terrorism.
Conservatives might well enjoy the rhetorical irony of using a hate crime label to describe and punish actions against the police. After all, the legal notion of hate crimes, which became popular in the late twentieth century, has generally been a tool of the civil rights movement. Just as many opponents of Black Lives Matter have appropriated that term and turned it into Blue Lives Matter, Abbott’s legislation seems to put the hate crime shoe on the other foot.
This may be part of growing trend among conservatives to reject programs that carve out special benefits or protections for Americans based on perceived oppression of a race or group identity. But in this case, adopting the use of “hate crime” is misguided—not because attacks on police cannot be motivated by hatred—they certainly can be—but because the very idea of a hate crime is a dubious proposition to begin with.
Criminalizing Hate Criminalizes Thought
Hate crime legislation became popular in the late 1970s as a way to enhance punishment for violent crimes committed with bias against a protected group. Such laws effectively state that punching people because they are gay or black, for example, should be more greatly punished than punching someone because you don’t like them individually. In most cases the hate crime is added to the underlying crime in prosecution.
The problem with the concept of hate crimes is that it very specifically allows the state to criminalize thought. It is not illegal to harbor hatred or animosity towards groups of people. It is irrational and stupid, but not illegal. Nor should it be. Asking judges and juries to punish people on the basis of their bigotry quite literally turns the government into the thought police.
One could argue that intent, a valid consideration in prosecuting crimes, also equals thought policing. But the traditional use of intent differs from the use of hate crime statutes in significant ways. Typically, intent is used to determine the extent to which an individual knowingly committed a crime and understood the gravity of its consequences. This is an old idea in law. In 1789, in his “An Introduction to the Principles of Morals and Legislation,” Jeremy Bentham addressed the issue:
Let us observe the connexion there is between intentionality and consciousness. When the act itself is intentional, and with respect to the existence of all the circumstances advised, as also with respect to the materiality of those circumstances, in relation to a given consequence, and there is no mis-supposal with regard to any preventive circumstance, that consequence must also be intentional: in other words; advisedness, with respect to the circumstances, if clear from the mis-supposal of any preventive circumstance, extends the intentionality from the act to the consequences. Those consequences may be either directly intentional, or only obliquely so: but at any rate they cannot but be intentional.
Bentham argues intention must be split in two. First, was the act intentional? Second, was the consequence of the act intentional? Motive plays a role in determining whether a criminal act was intentional, but not regarding the intent itself. Whether a criminal act of violence is committed out of jealousy, anger, fear, or hatred, the bottom line is still the physical intent. The proper role of government in most cases is to punish the act, not the motivation.
Once we go down the path of punishing motivation itself, we invite a legislative parade of horribles. In New York City it is now illegal to maliciously refer to a transsexual individual by a pronoun he or she does not prefer. This speech is not criminal because of the act of itself, it is criminal because the speaker is denying the moral orthodoxy of transexuality.
We should naturally expect the concept of a hate crime will lead to establishing hate speech as a criminal act. In most cases, one’s speech is used to prove the group bias that constitutes a hate crime. Someone who harbors animosity towards blacks and punches a black person is less likely to be charged with a hate crime than someone who uses a slur before throwing the punch. It is even possible that a perpetrator who uses a slur may not harbor bias, but may simply be attempting to insult his victim.
For all of these reasons is it ill-advised for Abbott and the Texas legislature to make crimes against police hate crimes. As satisfying as it may be to use progressive dogma in the furtherance of protecting police, it reinforces limitations on thought and speech that are very un-conservative.
Instead, Label Anti-Police Violence Terrorism
If we want to increase penalties on those who specifically target police in acts of violence—and we should—there is a better way to do it. Instead of considering such acts hate crimes, we should consider them acts of terrorism. By doing so we can punish the act, not the motivation, and potentially give law enforcement enhanced methods of preventing such acts.
Setting out to kill random police officers, as we recently saw in Dallas, Baton Rouge, and New York City, is an act of political violence. It is an attack on the rule of law and the systems of government. It is an attempt to undermine public confidence in police and to promote general fear. Importantly, undermining state authority is not merely the killer’s motivation, but also inherent to his act.
Some criminal acts specifically targeted at groups based on race, religion, or sexual orientation may also contain terroristic elements that can be used to enhance penalties. It would be best for us to replace the idea of hatred or bigotry with that of terrorism in policing and prosecuting such actions.
But for now, Abbot and the Texas legislature should resist the urge to use liberal thought policing to protect our cops. Not only is unlikely to be effective, it also codifies a legal argument that conservatives should reject. Even in our very justified anger and horror at police killings, we must proceed in measured ways, just as police should and do proceed in measured ways when they protect us.