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15 October 1998

Our current howler: Draggin’ out the ol' straw man again

Synopsis: This week, Michael Kelly was at it again, this time venting on hate-crime legislation.

Punishing ‘Hate Crimes’
Michael Kelly, The Washington Post, 10/14/98

New Laws Won’t Stop Hate
James B. Jacobs, The New York Times, 10/14/98

Commentary by Laurence Tribe
Larry King Live, CNN, 10/14/98

We know you hate it when we seem to pile on, and we’ve already discussed Michael Kelly this week, but Irate Mike was playing old tricks in this column on hate-crime legislation. We’re not that high, at THE HOWLER, on hate-crime laws--we share the Irate One’s concerns on this matter--but that’s not the point of the objection we’re forced to raise about Kelly’s most recent column.

The hate-crime issue had come up this week in response to the killing of Matthew Shepard; because of the disgraceful Wyoming murder, hate-crime law received a public airing it had never really gotten before. In theory, this provided a chance to clarify thinking about the whole matter of hate-crime legislation. It was a chance for sweet reason to work its way as people considered the whole hate-crime issue.

But, when people write columns like Kelly does here, sweet reason goes right out the window. The chance to clarify a new public issue is swept away by the impulse to vent. Kelly here does what he did last week in the column on impeachment we complained about yesterday--he refuses to state what his opponents really think, and he insists on putting silly views in their mouth. Yep--it’s that silly old “straw man” they told you to avoid in ninth grade. Why does the Post just keep dragging him out?

Here’s what Kelly tells his readers about the thinking behind hate-crime legislation:

KELLY: Hate-crime laws require the state to treat one physical assault differently from the way it would treat another--solely because the state has decided that one motive for assaulting a person is more heinous than another.

But that of course is not the “sole” reason proponents cite for enacting hate-crime laws. Proponents routinely say that the laws are needed because of the effect that “hate crimes” have within the community. They say “hate crimes” create fear on the part of potential victims who fear they may be the next target of such acts. When the Klan burns a cross on a black person’s law, they say, it has a wide effect within the community. The damages far exceed those that result from minor arson that is done for random motives.

You may think that’s a good reason for these laws, or you may think it’s not--but it’s quite different from Kelly’s description. Once again, his account of the thinking of those he opposes is factually wide of the mark. And, as he did last week with the Democrats in Congress, he’s not content until he makes his opponents sound as silly as possible. How silly are the proponents of hate-crime laws? Pretty silly, if you trust Irate Mike:

KELLY: What [accused assailants] Henderson and McKinney allegedly did [to Shepard] was a terrible, evil thing. But would it have been less terrible if Shepard had not been gay? If Henderson and McKinney beat Shepard to death because they hated him personally, not as a member of a group, should the law treat them more lightly? Yes, say hate-crime laws.

But of course, “hate-crime laws” say no such thing; Kelly’s statement is a foolish canard. There is no hate-crime law anywhere that says that only hate crimes can be charged as capital murders. Kelly here does what he did last week, when he said Democrats thought lying under oath “was OK.” To Kelly, it never seems to be enough, just to state why others are wrong on balance; irately, Kelly sets out to distort simple fact, to make other folks’ views just sound dumb.

Luckily, it wasn’t that hard to find other writers this week who were free of the addiction to straw men. In the Times, James B. Jacobs opposed hate-crime laws, but was willing to be honest with readers:

JACOBS: In many states, including New York, hate-crime laws cover only lower-level offenses like harassment and assault. Other states, like Wisconsin, double or triple the maximum terms if a defendant was motivated by prejudices including racism, anti-Semitism, and sometimes homophobia and misogyny. But there is no hate-crime statute that would have any effect on the Wyoming case, since the defendants already face robbery, kidnapping and murder charges.

Though Jacobs argues against hate-crime legislation, he argues by honest methods. He doesn’t pretend that hate-crime laws ratchet down the punishment other murderers face. He states openly the point that Kelly masks--the fact that hate-crime laws generally affect lower-level crimes. He doesn’t feel the need to attribute inane views to proponents of hate-crime legislation.

And it isn’t as if it was all that hard to find sensible proponents of hate-crime laws. For example, here’s what Laurence Tribe said on Larry King Live, expressing support for state-level legislation:

TRIBE: ...That doesn’t mean that federal legislation, much as people want to do something symbolic about this, would make much difference. There are limits constitutionally to what the federal government can do and anyway, when savages like these are already eligible for the death penalty in Wyoming, it’s not very likely that you can enhance it. But for less serious crimes, I think there is something that the states can do. Many of them have not yet recognized that it is worse to pick on someone and beat him up because of who he is than because of what he’s done. [Tribe’s emphasis]

Does this in any way sound like the proponent of hate-crime legislation we read about in Kelly’s piece? The person who wants to have sentences rolled back, unless a murder was part of a hate crime? (Again, Tribe emphasizes that these laws are aimed at lower-level crime--not at the murder case Kelly burlesques.) You may or may not agree with Tribe’s views--here at THE HOWLER, we’re not yet convinced--but clearly, the silly proponent whom Kelly assails fades away in the light of sweet reason.

At THE HOWLER, we’d like to know more about this issue, but it’s hard to do when papers waste space with presentations like Kelly’s. The Washington Post can do so much to give us the fruits of an informed public discourse. Why in the world do they waste their space on arrant nonsense by Irate Michael Kelly?

Postscript: Post writers were passing the straw man around. Here’s George Will, in the 10/15 paper (first paragraph):

WILL: ...[Shepard’s] assailants should die: Wyoming has capital punishment for first-degree murder. Now, imagine the trouble they would be in if Wyoming were one of the 21 states with laws against “hate crimes” based on sexual orientation.

Like Kelly, Will chuckles darkly at the utter absurdity of applying these laws to capital cases. Luckily, Jacobs was there, the day before in the Times, to give us the occasional bit of information--to inform us these laws are generally aimed at lower-level assaults. The bad news--Post readers have yet to be told.