Our criminal laws are adequate for punishing lawless behavior. But politicians have a hard time resisting the temptation to grandstand.
Passing laws that are commonly called "hate crimes" has been a recent trend at the state and federal level.
But a recent federal prosecution in Kentucky shows why it's easier to call for the passage of hate-crime laws than it is to actually prosecute them.
A federal jury recently convicted two men of kidnapping and conspiracy to commit kidnapping, while acquitting the pair of charges that they were motivated to engage in those criminal acts because the victim is a homosexual.
An Associated Press story reports that this case "was the first U.S. prosecution under a new federal law against anti-gay violence" and the tone of the story is one of bewilderment about the result.
"It was not clear why jurors ... rejected that argument (of a hate crime)," the AP story said.
Here's a hint: While jurors were convinced beyond a reasonable doubt that the assailants committed a kidnapping they were not convinced beyond a reasonable doubt about the assailants' motivation for the kidnapping.
The defense maintained that the kidnapping was related to criminal activity involving drugs and argued that it was a culmination of a day of drinking and drug abuse that left the assailants too intoxicated to form any coherent plan for their behavior.
Defense lawyers, of course, say a lot of things, many of which are self-serving. But during the course of the attack even the victim could only speculate about what was happening.
"They're trying to kill me. I didn't know what they were going to do. I think it's because I'm gay," he said in a 911 call for help.
Speculating about motives hardly passes the credibility requirements in federal court.
If an individual is charged with a crime — kidnapping in this case — prosecutors are required to prove that individual committed the crime. It's pretty much black or white.
If prosecutors charge that an individual committed a hate crime, they are required not just to prove the accused committed the criminal act, but also the reason for the criminal act. In other words, hate crimes require prosecutors to prove an additional element, one related to a state of mind that can lend it to speculation.
Hate-crime laws criminalize behavior that already is criminal. They raise the uncomfortable question of whether people should be penalized for what they think, and are not just redundant but more difficult to prove. Politicians love hate-crime laws because it gets them votes. Unfortunately, hate-crime laws are more about political rhetoric than prosecutorial reality. The two men convicted of the kidnapping but acquitted of engaging in a hate crime are scheduled to be sentenced on Feb. 21.