The Astounding Wrongness of Bill Keller on Hate Crimes

Apparently the only person who can convince me of the legal and moral sense of hate crimes laws is Times columnist Bill Keller, because his case against them is so terribly bad. Keller has tardily joined the ranks of liberals so opposed, including Andrew Sullivan, the Quakers and also noted legal theorist Bill Maher. (He’s also found himself in the fine company of the Georgia State Supreme Court.) But that he’s chosen to come out in the context of Travyon Martin and the Tyler Clementi case doesn’t even begin to make sense.

Of course it’d be really easy to go the “straight white millionaire who was born when there were only 48 states explains why hate crimes laws are bad” route on Bill Keller, but let’s just note that unfair impulse and set it aside.

It’s much easier to pick on him for using “two makes a trend”—particularly when one case is the Trayvon Martin case, which actually isn’t a case, since no one’s been charged of anything, and the other is the Tyler Clementi case. Lots of people—myself included—have already noted their unease with the application of hate crime charges in the Case of the Obnoxious and Bullying Roommate, in the events that took place prior to Clementi’s suicide. The particular charge in this case that concerns Keller is “bias intimidation.” But Keller clearly misunderstands what happened, and what the jury said.

In New Jersey, that bias intimidation charge means that “a person is guilty of the crime of bias intimidation if he commits, attempts to commit, conspires with another to commit, or threatens” a crime “with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, handicap, sexual orientation, or ethnicity.”

Dharun Ravi, Clementi’s roommate, was found guilty of this once—and, you know, also guilty of lots of other charges, including invasion of privacy, destroying evidence, “hindering apprehension or prosecution” and good old witness tampering. (Seven of those counts, in fact, were about witness tampering and hindering apprehension.)

But on the vast array of bias charges, he was acquitted.

Perhaps Keller was confused because his paper covered this trial so poorly. “A former Rutgers University student was convicted on Friday on all 15 charges he had faced for using a webcam to spy on his roommate having sex with another man, a verdict poised to broaden the definition of hate crimes in an era when laws have not kept up with evolving technology” was how their trial conviction news story opened. But he was convicted on parts of all fifteen counts, and acquitted on bias charges on almost all of them.

And then here’s how Keller describes this jury: “My reading of the case is that the jury seized on those handy bias statutes in a clumsy attempt to punish somebody for a death that remains unexplained.” That’s not at all what happened, even with a glancing read; the jury clearly very carefully decided on which charges they would acquit and convict, and therefore rejected most of the bias claims. (And sentencing takes place in May, so we can’t bemoan Ravi’s prison sentence yet, because there isn’t one.)

With regard to Trayvon Martin, which, if it is established to be a crime, does seem somewhat likely to have bias charges involved. The victim—or at least the person who is dead—seems to have been chosen solely for being black. Meanwhile, it has taken a national outcry to get police to pursue the case. But… right. There are no charges. This is a made-up complaint about hate crimes laws, since no one has been charged with anything yet.

Putting aside what did or did not happen in Sanford, still, we do know that Trayvon was followed and reported to the police for being black and male while walking. So when Keller writes that the public outrage is “fashioning a narrative from the hate-crimes textbook — bellowing analogies to the racist nightmares of Birmingham and Selma” and that that is “just political opportunism,” he’s way into the realm of whitesplaining to a world who knows very well that black people are often treated differently by people with guns. While he’s criticizing “the media” here (in this case, talking head commentators), what’s “political” about your or my own outrage over this case? Not a thing. He’s held up a media strawman to represent us all, and it doesn’t work.

So why does Keller hang his anti-bias law arguments on these two cases? What makes Keller’s op-ed so unconvincing and off-the-mark is the 3116 individuals accused of committing assault and bias crime in 2010 alone, the most recent year for which FBI hate crime statistics are available. Using two cases—actually, just one case, and even then, one case in which nearly all the bias charges were thrown out—to weigh in against hate crimes laws is an enormous piece of negligence. To overlook actual cases of bias crime to denounce bias crime charges is nonsensical. I’m not even an enthusiast of hate crime laws, and even I think this is unfair.

In 2007, according to the FBI, there were 7624 bias crimes reported. Half of those were race-based; 15% were about sexual orientation. In 2010, there were 6,624 bias crimes reported, which included seven murders, and a slightly greater percentage of crimes against gay people—and those assumed to be gay.

And also, when people talk about hate crimes, they forget that about 40% of those events were crimes against property, not people. This is why, for one thing, the Church Arson Prevention Act of 1996 happened, but that’s just not as sexy to talk about.

But even just talking about bias crime against humans, Keller could have chosen nearly any of the seven murders in 2010. Like Keith Phoenix, who beat Jose Sucuzhanay to death with a baseball bat just because he assumed the victim’s brother was his gay lover. He, in fact, pulled his car over to literally beat a stranger to death. It was just another lethal year for straight people to be assumed to be gay. If cases like that aren’t indicative that people target people for crimes based on their identity, I don’t know what is.