THIS BOOK OFFERS an extended argument against the formulation and enforcement of hate crime laws. These well-intentioned laws represent the, importation of identity politics into criminal law by seeking to give special recognition to the victimization of members of historically discriminated against groups. But the fit is, at best, uneasy.
First, when it comes to hate crime we are not dealing with otherwise legal behavior (like hiring decisions) that ought to be illegal when carried out in a discriminatory manner; without laws like Title VII and others, discrimination would go unredressed. The underlying conduct covered by hate crime laws is already prohibited by criminal statutes; the state has an interest in punishing such conduct regardless of motivation. Second, the civil rights laws attempt to rectify gross power imbalances in the society by providing remedies against illegal discriminatory action by the government and by powerful private sector institutions. By contrast, it is almost bizarre to talk about encouraging criminals to choose their victims on a nondiscriminatory basis. Moreover, in comparison with the individuals who engage in employment, housing, and election discrimination, a significant percentage of prejudiced offenders are themselves members of minority groups. Third, enhancing the punishment of prejudiced criminals does not provide victims a "remedy" against criminals' discriminatory conduct. The enforcement of generic criminal law is adequate to vindicate the interests of "hate crime" victims as it is of other crime victims. Most important, hate crime laws may not promote social harmony but, to the contrary, may reinforce social divisions and exacerbate social conflict. Thus, our primary recommendation is clear: repeal the new wave of hate crime laws and enforce the generic criminal laws evenhandedly and without prejudice.