Hate crime charges can be discriminatory

December 5, 2017

The Oct. 20 edition of the Cape Gazette featured several articles about hate crimes in telling the story of two men who spray-painted several vehicles with racial slurs and profanity. The follow-up letters and lead editorial in this paper called for expanded hate crime charges.

In an apparent call for class action lawsuits, one letter said, "Anyone seeing their 'hate crime' message should be able to step forward as an individual or as a class. This stance would include not only children who get on the bus, but their parents and the public who see the bus."

To summarize the story, two young men, Zachary J. Baughman, 19, and Steven T. Swain, 22, were "charged with five counts of graffiti and five counts of third-degree conspiracy - all misdemeanor charges." They escaped hate crime charges because the state decided that their victims "were not selected based on any of the protected categories"... "race, religion, color, disability, sexual orientation, gender identity, national origin or ancestry."

I am sure that the two young Delaware men don't realize how lucky they are that their crimes were not on government property when you compare what happened in a somewhat similar crime years ago in Maryland.

On April 12, 2000, The Baltimore Sun reported that Brian Swetnam, 22, was, "convicted under federal civil rights, hate crime, and conspiracy statutes" for his part in a cross burning at Bowie High School in June 1997." No physical injuries or property damage were charged.

"The conspiracy charges involved 'allegations' that the defendants [Brian and three other boys] discussed various ways to avenge the assault of a white student by an African-American."

"Justice" for Brian was a 10-year mandatory sentence in federal prison, with no parole! He served eight-and-a-half years with only time off for good behavior. He was 31 years old when released. No charges for the previous assault by the African-American were mentioned.

Then, in 2007 there was another disturbing case in which a young man, newly married Zach Sowers, 28, was brutally attacked near his home in Baltimore City by a group of four teens who savagely smashed his face and stomped his head into a curb; his head was described in the hospital as swollen to the size of a basketball. He remained in a coma for 10 months until he died.

The main attacker was Trayvon Ramos, 17. He and the three others are black; Mr. Sowers was white. However, no hate crime charges were filed, nor were they prosecuted for murder in a much-criticized plea bargain to assault and robbery. The city state's attorney was thrown out in the next election.

Then, there's the question of prevention success in the application of hate crime laws.

James Doubek, in a 2015 National Public Radio report, said their deterrent effect is hard to measure. He quoted Michael Brouski, professor of media studies at Harvard, that, "I think they essentially come down to feel good laws."

James B. Jacobs, professor of law at NYU, further observes that, "The hate crime law movement re-criminalizes conduct that is already criminal. In effect, it creates a hierarchy of victims - one based upon the group identities of perpetrators and victims, as long as prosecutors can prove a bias motive.

Thus, from the beginning, hate crime laws have simply given us something else to argue about: whose victimization should be punished more severely. They further politicize a law enforcement and criminal justice process that does best when it is perceived as being apolitical and even-handed - not a tool of identity politics."

Now, we see the pernicious spread of hate paranoia that has become a fad on college campuses in attacking conservative speakers for "hate speech" because they have a different point of view from leftist orthodoxy.

Violence, private property destruction and personal injury seem not to bother officials as exemplified this year at University of California-Berkeley, Middlebury College in Vermont and others.

Where were the hate crime charges against these perpetrators? Oh, I forgot; no protected groups were involved here. First Amendment free speech rights have become irrelevant in our hallowed centers of learning.

In the final analysis, the cases of Brian Swetnam, Zach Sowers and the college free-speech conflicts illustrate the bias that is instilled in administering hate crimes that should convince us to abolish the concept.

We have more than enough laws and legal penalties to apply to offensive illegal behavior without putting people in double jeopardy with discriminatory hate crime charges.

Geary Foertsch lives in Rehoboth and writes from a libertarian perspective to promote economic liberty, non-cronyism free markets, small government and a non-intervention foreign policy. He can be contacted at

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