A Stitch in Haste

Suppose you are the victim of check fraud or some other financial offense. Should the perpetrator of the crime against you be allowed to receive a reduced punishment — or even no punishment at all — if he insists that he committed his crime to feed his gambling addiction and agrees to go to gambling court?

Following the model of about 2,000 "therapy courts" devoted to drugs and spousal abuse that have opened nationwide in the last two decades, the setup here allows defendants to avoid jail time if they follow a court-supervised program that includes counseling sessions, credit checks and twice-monthly meetings with Justice Farrell.

"Therapy courts" illustrate a basic principle of criminal justice: we often punish the exact same crime differently under different circumstances. A check-kiter might be breaking the law, creating readily identifiable victims in the process, to feed a gambling addiction. Or to feed her starving child. Or perhaps she's just a sleazeball.

So on the one hand, "check-kiting is check-kiting," but on the other hand we steer the gambling addict check-kiter to "treatment" while sending the sleazeball check-kiter to jail.

Proper or improper?

If you answered "proper," then how can hate crime laws not also be proper? To insist, as most bigots — and a few radical libertarians — do, that "a crime is a crime" and "we shouldn't punish thought" is to ignore the everyday reality of the entire criminal justice system.

We punish the same crime differently under different circumstances all the time. We punish the addict check-kiter differently than the sleazeball check-kiter. But isn't check-kiting check-kiting? Why should we care what the motivation was? Isn't that "punishing thought"?

We punish the repeat offender differently than the first offender. Why — isn't a crime a crime? We punish the DUI driver differently based on whether his crash killed one person in the other vehicle or five. But isn't "a DUI crash a DUI crash"?

Even speaking strictly in terms of adults, we punish the very old criminal differently than the very young criminal. We punish the rich differently than the poor. We punish the well-behaved in prison differently than the misbehaved. And so on.

The exact same crime, but not the exact same punishment. And very few people seem ever to be upset about it.

Nor should they be. This is not exactly a radical innovation, and was certainly not invented by homosexual activists.

So the question remains: What exactly is so improper in saying that we will punish the same violent crime differently based on whether the crime was or was not motivated by, say, anti-gay bigotry? How exactly is such a law "wrong" when gambling court is "right"?

"Federalization of criminal law concerning the violence prohibited by the bill would be constitutional only if done in the implementation of a power granted to the Federal government, such as the power to protect Federal personnel, to regulate interstate commerce, or to enforce equal protection of the laws. Section 249(a)(1) is not by its terms limited to the exercise of such a power, and it is not at all clear that sufficient factual or legal grounds exist to uphold this provision of H.R. 1592."
--Statement of Administration Policy on H.R. 1592, 3 May 2007

So the president has suddenly become a bold and proud libertarian by threatening to veto the Local Law Enforcement Hate Crimes Prevention Act of 2007? How praiseworthy of him.

Or not.

I just hope all libertarians are not as hopelessly naive as the Cato Institute's Tim Lynch:

This is a most welcome development as the bill is an affront to the constitutional principle of federalism.

Because this president, of, e.g., "No Child Left Behind" infamy, is just teeming with concern over federalism.

Grow up.

The president will veto this bill if it reaches his desk not because of the one word, "federalism." He will veto it because of the two words, "sexual orientation."

Ronald Reagan supposedly said, "My 80% friend is not my 20% enemy." Well, that works both ways: My 80% enemy is not my 20% friend. And Bush's percentage, both to gays and libertarians, is far higher than 80%.

Consequentialism is the last refuge of socialists and central planners. Libertarians have no business embracing it.

Shame on those who would celebrate this pandering to bigots as a supposed libertarian victory in the name of federalism.

Oppose the bill if you truly deem it proper to do so. But don't praise this most anti-libertarian of presidents for using — corrupting — libertarian principles as a dodge to appease his anti-libertarian, theocrat base.

More thoughts at Crime & Federalism.