Hate v. Death in the Matthew Shepard Act

By Michelle Chen Jul 21, 2009

Senator Jeff Sessions took a strong stance on hate crime today—in a way that only an unabashedly bigoted lawmaker could. He has tacked an amendment onto the Matthew Shepard Hate Crimes Prevention Act (passed by the Senate last week), which would make some hate crimes punishable by death. It’s not unusual for reactionary legislators to stuff poison pills into bills they oppose. But it’s quite ingenious how Sessions found a way to mesh one of the most racist legal fixtures of our criminal justice system with legislation that purports to reduce racially motivated violence. Then again, we should expect no less from a man who has positioned himself as a courageous defender of white privilege in an existential battle with “un-American” foes in the civil rights movement. He may have a knack for irony, but at least Sessions is consistent in his views on the death penalty. From his opening statement at the Sotomayor confirmation hearings:

Judges have cited foreign laws, world opinion, and a United Nations resolution to determine that a state death penalty law was unconstitutional. I’m afraid our system will only be further corrupted as a result of President Obama’s views that, in tough cases, the critical ingredient for a judge is the "depth and breadth of one’s empathy," as well as "their broader vision of what America should be." Like the American people, I have watched this for a number of years, and I fear this "empathy standard" is another step down the road to a liberal activist, results-oriented, and relativistic world where: • Laws lose their fixed meaning, • Unelected judges set policy, • Americans are seen as members of separate groups rather than simply Americans, and • Where the constitutional limits on government power are ignored when politicians want to buy out private companies. So, we have reached a fork in the road. And there are stark differences between the two paths.

Now Sessions has shoved the fork straight into legislation that sought to balance law enforcement with civil rights. Maybe this is payback to all the activists who “forced civil rights down the throats of people" (as he once ranted, according to congressional testimony). Various civil rights organizations have spoken out against the amendment as unjust and unnecessary. Still, even on the left, legislation to enhance hate crime penalties isn’t free of internal controversy, and Sessions’s move attests to the slippery slope of further criminalizing ideologically driven transgressions. On a philosophical level, we might wonder how the administration of capital punishment might change if applied more frequently to white people for crimes targeting people of color. Or is the structural bias underlying society’s conception of the death penalty so entrenched that Death Row’s skewed demographics would persist? In a letter to Senators, the ACLU warned that the amendment could violate the constitution by expanding the application of the death penalty to "non-homicide" crimes like sexual abuse and attempted murder. Citing Amnesty International’s research, the ACLU noted:

“even though blacks and whites are murder victims in nearly equal numbers of crimes, 80 percent of people executed since the death penalty was reinstated have been executed for murders involving white victims. More than 20 percent of black defendants who have been executed were convicted by all-white juries. Even if one supports the death penalty in theory, there is no justifiable reason to expand our system of capital punishment while such discriminatory impacts continue to exist.”

Unless your an aggrieved lawmaker who, perhaps grumpy about his failure to make charges ofreverse racism” stick—and crabby about being unable to escape his own reputation for actual racism—has nothing to lose by smothering a bill that his Base never cared about anyway. Sessions and his right-wing colleagues spoke at length last week about the evil of liberal jurists letting compassion guide their decisions. With legislators like these, conservatives needn’t worry about activist judges bending the law in favor of social justice. Image: Chip Somodevilla / Getty Images