Hate the crime

If it be done, let it be done right

WILLIAM F. Buckley once said a conservative is someone who stands athwart history yelling Stop! at a time when nobody else seems inclined to do so. Which can be frustrating, eh? Maybe conservatives will have to settle for standing athwart history yelling Slow Down! But history will go at its own speed.

See same-sex marriage. Ten years ago, would you have thought it’d be the law of the land today? The whole land. And from the culture warriors, barely a peep about it now.

The world keeps spinning. And the country keeps changing.

Like our language. If an unchanging language is a dead one, what would be an unchanging country?

Let’s not find out.

Some conservatives in this state—well, some Republicans in this state—are now talking about adding Arkansas to the list of states with hate crime legislation on the books. And some list of states it is.

The papers report that Arkansas is now only one of three states without such a law on the books. Some of us took that as a point of pride—that thoughtcrime still hadn’t reached everywhere in America. And that the politics of crime should have nothing to do with the punishment of it. After all, a crime is a crime, no matter what’s going through the perp’s mind at the time.

On the matter, those of us yelling Stop! haven’t been successful. This summer, several members of the Arkansas Legislature have made the effort to formally end Arkansas’ holdout, and the governor has said he’d sign the bill.

In this summer of our American discontent, as cities erupt and burn as We the People protest racial injustice, and swear to ourselves to do better—to be better—change will come faster than some want. (And slower than others want.)

Maybe the best advice, as always, comes from The Book: Come, let us reason together. If a hate crime bill is coming to Arkansas, let us reason through it.

If this thing be done, let it be done right, if possible.

There are questions that some of us have for the writers of this legislation: ■ How would you protect free speech? That is, an American has the right to burn the United States flag, as a matter of his First Amendment rights. But would burning the, say, rainbow flag constitute a hate crime? John Brummett published a column earlier this summer quoting lieutenant governor Tim Griffin on the matter: “I support enhanced criminal penalties that will make Arkansans safer, but we must take the time to get it right and ensure that religious liberty and free speech rights are protected.” How would that be written into the law?

■ What would be the protected classes?

And let’s not kid ourselves, there will be protected classes. We imagine the law will call it “hate” if somebody is targeted on the basis of race or gender or religion or sexual orientation. Or three of the four. Or maybe there’ll be six more categories. Will politics be included? Or will it still be safe to hate conservative Republicans? And how much more will punishment be for the new crimes as opposed to the conventional ones?

■ Once we make the law a respecter of persons, as opposed to the Almighty who isn’t, will there be an amendment process to increase the numbers and kinds of protected classes as the years go by?

■ How go about proving hate? The 16th century left a bad taste for pressing pleas. Would it be enough proof of hate for both parties to be, say, of different religions? Or would there have to be a paper trail, or rather, a Facebook trail? For unless a person admits it some way, it is nigh-impossible to prove hate. Unless proof in the courtroom is somehow pruned or weakened.

■ Will the hate crime laws be completely separate from the old dull ones? And if a body is set free after accused of the latter, could a prosecutor file the former? And what does this do to the Double Jeopardy Clause?

This is going to take meticulous legal writing, and even more attentive thought. The time might be right for change, but it’s hardly ever time for unguarded legislation.

The good news is that, among these 50 laboratories of democracy, 47 have a record on this particular matter. The leaders of the 48th state planning to take this step have examples—call them case studies—that can provide as guides. Let’s not ignore them.