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In the wake of the clashes between fascist demonstrators in Charlottesville and their opponents who have championed the removal of statues praising Confederate soldiers and generals, the public has been pushing for stronger and stronger punishments for self-proclaimed white nationalists as they have severely injured and killed a number of innocent civilians. Hate Crimes have been on the rise since the inauguration of the forty-fifth president, with a record 900 hate incidents being reported in the ten days after the changing of administrations. Despite some strong calls to further prosecute hate crimes at another harsher tier of punishment, some groups feel that the concept of a hate crime is inequitable, discriminatory, and should be completely done away with.

The term “Hate Crime” itself came into vogue in the United States in the 1980s during a wave of murders committed by white citizens against Black, Hispanic, and Asian people. Once coined, the term was retroactively applied to such incidents as genocides, lynchings, and extermination attempts. Legally speaking, the phrases “hate crime” and “bias incident” carry slightly different connotations, but generally, the phrases describe an offense motivated by animus against a minority group, including religion, ethnicity, nationality, sexual orientation, and in the modern era, political affiliation. If a criminal investigation leads law enforcement to classify the infraction as motivated by a larger drive against an in-group, the federal government can step in press federal charges. As such, the penalties for hate crimes can be steeper than those of crimes not motivated by enmity for a group of people

The original purpose of this classification of felonies activity was to deter such behavior. In an era where tensions among groups lead to increasing instances of injury and death, legislators wanted to impose heightened penalties on crimes motivated by such in-group-out-group tensions to send a political message that actions rooted in hatred are intolerable and un-American.

The increased public pressure to prosecute hate crimes to the fullest extent of consequences and public humiliation has drawn attention to the concept of the hate crime, and law professors and legislators have expressed concern over the very concept of a hate crime. Their argument, put most simply, is that someone’s emotions during the execution of an activity should not have bearing on the punishment. Let’s take two scenarios. In one, a white man kills another white man over a property dispute. In another, a white man kills a Hispanic man and cites a deeply-held belief that the US would be better without people of Latin American descent. In both scenarios, a person wound up dead, but the way hate crime laws are written, one victim is so special as to warrant a higher penalty by virtue of his ethnicity.

LGBTQ+ rights activist Bill Dobbs argues with vigor that the concept of the hate crimes steers the criminal justices system away from pure justice and closer to vengeance by flirting with violations of constitutional rights of “equality before the law.” Others argue that offenders are already being punished appropriately given the laws as they’re written, and piling on more tags is simply overkill.

Still, proponents of hate crime prosecutions argue that positive peer pressure and strong federal stances against crimes motivated by hatred for a specific group of people are necessary to keeping order in a civil society and discourage radicals from picking up steam and disciples.