South Carolina flies the Confederate flag in its state capitol. To many, that flag is a symbol of a violent, racist past. A nostalgic celebration of a time when blacks were actively oppressed, enslaved, and brutalized while government officials looked the other away – or even actively participated.
To many, that flag is a highly offensive symbol of racial hatred.
The flying of the Confederate flag at South Carolina’s state house sends a message – intended or otherwise- that racism is tolerated at the highest levels of state government.
South Carolina is also sending a similar message by the absence of a state hate crime law. It is one of only five states in the country without a hate crime law, joined by Arkansas, Georgia, Michigan and Wyoming.
Generally speaking, a hate crime is a crime which is motivated, in whole or in part, by bias or prejudice based on a victim’s actual or perceived group membership. The federal government’s hate crime law, for instance, prohibits criminal behavior motivated by race, religion, ethnicity, nationality, gender, sexual orientation, gender identity and disability.
Hate crime laws are not with skeptics. I count myself among them. In states with hate crime laws, there are significant under-reporting problems – both by victims who often do not report the crimes to the police, and by the police who often fail to enforce the law or to collect accurate data. Even where hate crimes are properly reported, they are difficult to prosecute because bigoted motive is often hard to prove.
There are also free speech concerns. Some critics of hate crime laws argue that such laws punish bigoted thoughts and bigoted speech. But supporters argue that hate crime laws punish bigoted actions – not words. The Supreme Court has upheld the constitutionality of hate crime laws for exactly that reason.
In addition, it is not clear that hate crime laws actually deter hate crimes. For serious crimes such as murder, hate crime laws are unlikely to have a significant deterrent impact; if the perpetrator was not deterred by the already severe punishment for the underlying crime, why would they be deterred by the threat of additional punishment from a hate crime sanction? And for less serious hate crimes, it may not make good policy sense to increase punishment.
But despite these significant concerns, there is no doubt that the very existence of hate crime laws can send a powerful symbolic message. They tell the community that criminal acts based on bigotry will not be tolerated. And that crimes motivated by hate are especially repugnant.
A hate crime law in South Carolina would have enabled the state to send a clear message that the hate-filled shooting deaths of nine black people in a historical black church were not “just” mass murder, but were a racist assault on all of us. That racist violence is unacceptable. That criminal behavior based on racism violates fundamental principles of humanity and human dignity and the values on which our community is based.
A completely different message is sent when a state like South Carolina, steeped in a history of slavery and racism, fails to enact a hate crime law. It sends a message of governmental ambivalence – or worse – complacency and acceptance of bigoted criminal actions.
In contrast, when then-Governor Jim Florio signed New Jersey’s ethnic intimidation law, he proclaimed: “this legislation does more than punish . . . it says something about who we are and about the ideals to which this state is committed.”
And when New York’s former governor Mario Cuomo passionately argued for the passage of his state’s Bias Related and Violence Intimidation Act, he did so to “make it clear to the people of this state that behavior based on bias will not be ignored or tolerated.”
But South Carolina’s refusal to pass a comprehensive hate crimes law – despite repeated attempts by a few state legislators to enact one – speaks symbolic volumes about the message it is choosing to send.
And all the while, the Confederate flag continues to fly high on Capitol Hill.