The Trayvon Martin tragedy — in which an African-American boy, armed with Skittles and an iced tea, was shot and killed by a neighborhood watch volunteer, who initially walked away under Florida’s expansion of traditional self-defense rules — may force the nation to again understand the need for federal hate crime laws.
An influential voice of the liberal establishment recently wrote a contemplative “counterintuitive” piece, warning that we should feel queasy about such prosecutions. These cases, Bill Keller wrote in The New York Times, threaten to drag us to the edge of the Orwellian abyss, in which government prosecutes people because of what they may be thinking.
This not uncommon argument invariably fails to grasp that hate crime laws are a fundamental and indispensable weapon in the legal arsenal we created to dismantle America’s racial caste system and deter violence spawned by bigotry.
The federal government lacks general police power, unlike the states. It therefore prohibits racially motivated violence largely through hate crime laws.
Trayvon’s killing demonstrates the need for such laws. Despite George Zimmerman’s indictment Wednesday for second-degree murder, we still do not know enough to make definitive statements about his motivation for pulling the trigger. Or the behavior of the Sanford, Fla., police and the state’s attorney in initially refusing to arrest and charge him.
We do know, however, that it looks likely that race played a role in Zimmerman’s decision to chase and challenge Trayvon. We also know that the initial failure of local authorities to pursue the matter fits the historic pattern of Southern justice in turning a blind eye to violence against African-American men — and youths.
Without federal hate crime laws, the federal government could do nothing to investigate and, if appropriate, pursue this matter. The FBI, for example, wouldn’t now be in the field.
More important, local officials perhaps would not feel the pressure of federal eyes peering over their shoulder to ensure they do their jobs completely. If a state waged an ineffective prosecution, there would be no possibility of the federal government’s stepping in with a more vigorous effort. There would be no Plan B.
Given our history of half-hearted, ineffective or incompetent efforts to bring to justice racially motivated killers, we need a Plan B. Indeed, because so many victims of civil rights crimes never received justice from states, Congress recently created a cold case unit in the Justice Department — to investigate crimes that were never effectively investigated or prosecuted. Even as an increasing number of states take their responsibilities more seriously, federal resources are essential for thorough investigation and prosecution if the state fails.
As the country grappled with passing basic civil rights laws in 1964, 1965 and 1968, many opponents contended that these regulations couldn’t change peoples’ conduct, much less their hearts and minds. They were wrong.
Gradually, the law, including prohibition of hate crimes, has helped Americans overcome much of the worst of our history. Regulation of conduct and consistent reinforcement of standards for acceptable behavior have indeed helped to civilize us.
For most of U.S. history, assaulting or killing an African-American was likely to go unpunished. Massive, unaccountable violence was inflicted on slaves. When Reconstruction was abandoned after the Civil War, Southern law enforcement was usually indifferent — if not worse — to violence against African-Americans. A reign of terror, including scores of lynchings, rarely provoked appropriate response from state authorities.
Many whites acted on their racial hatred, demeaning the value of African-American life, and their conduct was tolerated. The killers of Emmett Till, for example, walked free. It took 30 years to convict the assassin of Medgar Evers. The state refused to prosecute for murder those involved in the killings of the young civil rights workers, James Chaney, Andrew Goodman and Michael Schwerner.
Finally, in 1968, after decades of frustration, and in the immediate wake of the assassination of Martin Luther King Jr., Congress passed the hate crime laws — which prohibited racially motivated violence.
They were a direct response to the lawlessness of Southern prosecutors and juries, who had refused to prosecute or convict defendants for racially motivated violence. Washington said the symmetrical response to violence spawned by racial hatred was to outlaw it.
Congress broadened the hate crimes law in 2009, to protect sexual orientation, gender, gender identity and disability.
Hate crimes laws do not punish thought any more than other prosecutions that depend on a perpetrator’s intent to commit a crime. Hate crime laws punish conduct — including assaults or killings — not the defendant’s state of mind.
Proof of a hate crime depends on establishing motivation — the reason that the killer decided to pull the trigger. Hate crime laws are specifically designed to deter people from turning their hatred of the “other” — people of other races, genders or sexual orientations — into violence.
We cannot stop people from thinking bigoted thoughts. But we can certainly try to stop them from acting on their bigotry. That’s what most civil rights laws do — whether bigoted conduct involves violence, firing an employee, refusing to rent an apartment or denying access to a school.
We impose these laws, in the first instance, to protect the immediate victims and give them redress.
We also want to reassure the affected communities, whether defined by race, gender or sexual orientation, that the law will protect them. Their histories often give them reason to fear violence driven by bigotry — and to require heightened vigilance.
Hate crime laws also emphasize that law enforcement must respond seriously to bigoted conduct.
Federal laws punishing acts of violence motivated by bigotry are essential to our continuing struggle to become a better nation. These laws represent the most basic admonition in our hierarchy of civil rights laws: Your bigotry does not entitle you to assault another person.
That is a lesson that the United States has learned only through hard experience — and we must value it.
William Yeomans, an American University law professor, served as Sen. Ted Kennedy’s chief counsel on the Senate Judiciary Committee and as a Justice Department official.