Port: Fargo's new hate crime ordinance will accomplish nothing
This new hate crime ordinance will likely be challenged and struck down, and that's as it should be. It's unconstitutional. It's illegal. And even if we set those things aside, there's no evidence that policies like this actually work.
MINOT, N.D. — Last night, with much jubilation from certain politicians and activists, the City of Fargo passed a hate crime ordinance .
The real-world impact of this policy will be negligible.
Kind of like California's ballyhooed ban on state employee travel to supposedly benighted places like, er, North Dakota, which haven't brought their laws sufficiently into line with certain liberal orthodoxies.
North Dakota was just added to California's naughty list, and the Associated Press had an interesting line in their report about that : "[Attorney General Rob] Bonta did not have information about how many state agencies have stopped sending state employees to the states on the list or the financial impact of California’s travel ban on those states."
If you implement policy and then have no information on the degree to which that policy is being enforced, can it be said that you really care about the policy? Or can we admit that this is just another example of that proud tradition of political grandstanding?
Speaking of meaningless exposition, let's get back to Fargo.
Their new ordinance defines a "hate crime" as an act of criminal mischief motivated by a person's identity (their race, religion, gender, etc.). The penalty is the maximum a municipality like Fargo can implement under state law, which is 30 days in jail and a $1,500 fine.
There is a dense forest of problems with this ordinance.
For one, it can criminalize constitutionally protected speech. The Supreme Court ruled in the 1990s that it isn't so , but the court isn't infallible. As a practical matter, Fargo is saying that if you vandalize someone's home while simultaneously holding racist views or saying racist things, you're guilty of a more serious crime.
Except, as disgusting as you and I may find racism, thinking racist things, and saying racist things have constitutional protections, as well they should.
Hate crime policies criminalize thought and speech.
That's not something we should want.
The Orwellian overtones don't stop there, either.
There is a some-animals-are-more-equal aspect to this. Fargo's attorneys stressed, in their memo to the city commission , that this law doesn't enhance punishment for crimes against protected classes. It enhances punishment for crimes motivated by bias against a perceived class. A subtle distinction, and one intended to dispel the notion that this law runs afoul of equal protection standards, but in the real world, where this policy will be applied, does the distinction matter?
If someone breaks your car window or burns your shed down, does it matter if their motivation is bigotry?
Your window is no more broken. Your shed no more torched.
Setting aside the more philosophical objections to Fargo's new policy and get pragmatic.
There's little evidence that these laws work, even when implemented far more broadly and with far greater consequences than the city can muster. “The idea that a hate crime perpetrator will really refrain from harming another person due to enhanced penalties is inconclusive because there is no substantial, reliable evidence to prove these theories," concludes a paper published in the Pace Law Review .
You're reading that right.
Despite decades of implementation in various jurisdictions, there's no evidence that hate crime policies deter hate crimes.
You might fairly argue that this is because hate crimes are notoriously difficult to prosecute and so aren't enforced as often as the politicians and activists would like. "Hate Crime Law Results in Few Convictions and Lots of Disappointment," the left-leaning news organization ProPublica reported in 2017 .
We don't have any national data for the success rates in hate crime prosecution. "No national agency tracks conviction rate data nationwide," PBS reported in 2017 . Some states collect data. California is one of them. Per that same PBS article, in 2015, the state, with a population of nearly 39 million at the time, successfully prosecuted just 59 hate crimes.
Are the prosecutors racist and refusing to pursue hate crime charges? Or are they just hesitant to risk successful prosecution by adding motivation to the list of things they have to prove beyond a reasonable doubt to reach a guilty verdict?
But let's return to the specifics of Fargo's new ordinance.
The city now has a financial incentive to perceive crimes as motivated by race. Under North Dakota law, which really ought to be changed, municipal governments like Fargo's get to keep the revenues generated by the fines they levy through ordinances. Under state jurisdictions, including counties, revenue from things like traffic tickets goes into the Common Schools Trust Fund to avoid the potential for policing for profit.
Not in Fargo.
They keep the money.
Profit motive in policing is not a good thing.
Also, North Dakota already has a hate crime policy on the books. It's 12.1-14-04 of the state Century Code .
What's more, the state also has a statute specifically prohibiting cities like Fargo from doing this. Section 12.1-01-05 of the Century Code states: "Crimes defined by state law shall not be superseded by city or county ordinance or by home rule city's or county's charter or ordinance."
Fargo's city government has long carried on as if they were some independent city-state and not a political subdivision of the State of North Dakota, and they routinely pay for that arrogance when the courts are forced to remind them of the law.
This new hate crime ordinance will likely be challenged and struck down, and that's as it should be.
And even if we set those things aside, there's no evidence that policies like this actually work.
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Rob Port, founder of SayAnythingBlog.com, is a Forum Communications commentator. Reach him on Twitter at @robport or via email at email@example.com .