Flowers: ‘Hate crime’ charges can be a slippery slope sometimes

Published 12:39 pm Friday, May 7, 2021

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I have renewed respect for Keith Ellison. The former congressman and current Attorney General of Minnesota appeared on “60 Minutes” last week and said that he didn’t charge Derek Chauvin with a hate crime because “we only charge those crimes that we had evidence that we could put in front of a jury to prove.”

In other words, they didn’t find the requisite hate.

Ellison did something I would not have expected him to do, given his past comments and actions. He honored the law, honored its limits, honored our need for due process in the face of emotion and outrage.

In short, he was the adult in the room.

Some years ago on a radio program I was hosting, I suggested that hate crimes were at the summit of a slippery slope, because they forced you to get into the minds of perpetrators and try to figure out what was the motivation.

It’s true that we do that all the time with run-of-the-mill criminal charges like assault, but that usually only requires a general sort of intent. When you start layering prejudice, bias, hatred, and bigotry over it, you stop being a neutral arbiter and you start allowing your own biases to, in a sense, rewrite the law. Or to put it another way, you start seeing justice through a specific lens, one that might distort the actual view. And that’s when you start slipping down the slope.

More important, you teach people that some victims are more worthy of justice than others. If you have been killed by someone who wanted your money, you are just as dead as someone who targeted you because you were gay.

If you were raped, you are just as devastated and torn if your rapist was a stranger at a party than if he was a misogynist who wanted to brutalize women.

It is true that motivation is a key factor in determining why a crime was committed, along with the likelihood of it being committed against a specific person, but to enhance a sentence because the person was a bigot on top of being a criminal places far too much power in the hands of those looking for the “bigotry.”

I say this because we have seen, these days, the ease with which people throw around the term “white supremacist.” I have seen it in emails from readers who hate my columns, on social media against people who defend traditions like mascots that offend their neighbors, in op-eds and essays from folks who think mispronouncing ethnic names is bias, and I have heard it from the mouths of public officials who brand whole swaths of their constituencies with the racist label.

If it is this easy to use words that have lost all relevant meaning when they are regurgitated every time someone wants to make a political point, imagine how easy it will be for some prosecutor to use those suspicions of bias to impugn a criminal defendant.

That opens up a can of worms that will eat away at the decaying body of due process and our criminal justice system.

I’m not naïve enough to believe that people don’t have hate in their hearts. They do, and those pretentious little signs that pop up like crabgrass on suburban lawns aren’t necessary to corroborate that fact. We know that bigotry exists.

But to take that certainty and graft it onto our adversarial process is dangerous. You cannot take judicial notice of the fact that someone is a bigot, and that their bigotry motivated their criminal actions. You need to prove it by actual admission from the perpetrator and, if necessary, circumstantial evidence. And except in the cases of people like Dylan Roof, who was quite clear that he wanted to kill African-Americans at Mother Emmanuel, you will have a very hard time proving that and still protecting the defendant’s due process rights.

We all want to punish bad people. I, frankly, have always supported the stiffest of penalties for heinous crimes. I am an advocate of the death penalty, and nothing will sway me from that position.

But adding “hate” penalties is a dangerous thing in a society that is already primed to see “hatred” in every act that troubles them. I applaud Ellison for pointing out that even in a country where the majority celebrated the conviction of Derek Chauvin, convicting him as a bigot was a step too far.

Christine Flowers is an attorney and a columnist for the Philadelphia Daily News, and can be reached at