Elmer Smith: We don't need a new hate-crimes law

SCOTT LEE ZULFER pleaded guilty to 69 counts of aggravated sexual abuse and 11 counts of continuous sex abuse. Then he threw himself on the mercy of the court.

Turns out, the quality of the court's mercy was severely strained. A judge in San Antonio, following the prosecutor's recommendation, sentenced Zulfer to 80 consecutive life terms.

With time off for good behavior, Zulfer, 44, could be eligible for parole on his 167th birthday.

Now, we can quibble about whether 50 or 60 life sentences would have sufficed. But my sense is that the judge was making a point here:

Zulfer's reign of sexual terror is so outrageous that it would make a mockery of justice to punish him within the normal sentencing range.

This is also the rationale for the new hate-crimes legislation that Congress passed this month. The president is expected to sign it.

I have a problem with that. Scott Lee Zulfer is my Exhibit A. Zulfer's case demonstates that, if we are truly outraged by a particular type of crime, we can demonstrate it without any new law.

The scales are dangerously out of balance when the law prescribes different penalties for similar crimes based on inferred intent.

If Zulfer had hated his victims, would we be more outraged? If he chose them at random, would that mitigate the offense?

How about a guy who robs a convenience store and shoots the proprietor? Is it a hate crime if the victim wears a turban and the gunman uses a racial epithet?

Shouldn't we care enough about that victim to treat this as a heinous crime even if the robber never mentions the victim's racial background?

That last point puts me at odds with a lot of people whose opinions I respect. But I have never been for hate-crimes legislation, even those that sought to protect minorities against racist attacks.

James Byrd Jr. was tied to a truck by his feet and ankles and dragged to a horrible death by white supremacists in Jasper, Texas. Two were sentenced to death, the other to life.

Under Texas law, their racial motivation was an aggravating factor at sentencing. But justice was served without the need for a separate, federal law.

If a jury had not been sufficiently outraged, a new federal law would not have convinced them.

I understand the hate-crimes rationale. If the violent act is meant to send a message to an entire group, lawmakers reason, then special measures are needed to protect the victimized group.

But criminal law in this country is based on the notion that we are all the victimized group. That's why the cases are billed as the defendant versus the state, not the defendant versus the victim or his group.

This is not an easy call. I certainly don't want to be associated with the gay bashers on the so-called Christian right who argue that to list gay people for protection under hate-crimes laws would violate their right to speak out against homosexuality.

Their overblown concerns are prompted by the fact that the federal law is named for Matthew Shepard, who was tourtured and murdered in Laramie, Wyo., by two killers because they thought he was gay.

But hate laws are about actions, not speech. The Supreme Court made that clear in 1993 by its unanimous decision in Wisconsin v. Mitchell. They found "no merit in the contention" that hate-crimes laws impinged on the exercise of free speech.

In truth, the right's opposition is motivated more by politics than it is by Christian concerns about sin.

My concern is that hate-crimes laws may foster injustice by giving prosecutors the responsibility to determine which crimes are motivated by hate. If the law didn't provide harsh punishments for violent crimes, I might be advocating for more hate-crimes laws.

But Russell Henderson and Aaron McKinney were convicted under existing law in the Shepard case. Both are serving life.

That feels like justice to me.

Send e-mail to smithel@phillynews.com or call 215-854-2512. For recent columns: http://go.philly.com/smith.