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Port: Fargo's much-celebrated hate crime ordinance continues to be a waste of everyone's time

If a law doesn't accomplish its stated goals, what's the point?

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Avalon Fyreheart stands near Fargo City Hall after the Fargo City Commission hate crime ordinance vote on Monday, June 28, 2021.
David Samson / The Forum
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Minot — Back in June I noted that, as the first anniversary of Fargo's hate crime ordinance was looming, it had resulted in precisely zero convictions.

At the time, just one individual had been charged under the ordinance. Now April Baumgarten reports that this individual, a Lake Park, Minnesota, man named Wesley Jensen, has been acquitted.

The charges against Jensen stemmed from a bar fight during which admits he uttered an anti-gay epithet. That's what got him the hate crime charge, a class B misdemeanor with a maximum penalty of 30 days in jail and a $1,500 fine.

Jensen, who represented himself, argued before the court that, during the fight, he was acting in self-defense and that he used the epithet without any knowledge that the person he aimed it at was, in fact, gay.

That was enough reasonable doubt for the jury.

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For we, the public, it may be time to wonder what the point of this ordinance is, beyond giving a lot of sanctimonious, self-congratulatory local politicians and activists a reason to pat themselves on the back.

"When asked about the verdict in Jensen’s case, [Fargo City prosecutor William] Wischer said it is hard to prove the hate crime element in a case," Baumgarten reports , which is an inconvenient truth at the heart of the push for hate crime laws.

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Our laws do not typically criminalize motive. If you steal someone's lawnmower, you are guilty of theft, and it doesn't really matter if you stole it because you couldn't afford your own, or because you harbor bigoted views.

To criminalize motive is to criminalize thought, a dubious endeavor from a philosophical point of view — our society's commitments to free speech don't gibe well with thought crimes — and an almost impossible one in the practical setting of a courtroom. The Supreme Court, in a 1993 ruling , found that hate crime laws don't violate free speech rights, yet we're still left with the reality that the evidence of a hate crime is often constitutionally-protected speech.

Baumgarten reports that Wischer told her "he was unaware of any other hate crime charges being filed since Jensen’s, which was charged in December," and there's a reason for that.

It's the same reason why, nationally, hate crime convictions are exceedingly rare .

Proving someone's criminal motive, in a court of law, beyond a reasonable doubt, is hugely difficult, and not really a good use of time and resources in the criminal justice system.

If we're trying to get a conviction against someone for an assault, is it more important that they be punished for the act itself, or their motivation?

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The act, obviously. That someone was assaulted is much more important than why they were assaulted, all the more so because convicting them for their motivation is so much more difficult.

Supporters of hate crime policies tell us that the punishment for bigoted motivations in crimes (remember: being a bigot, in and of itself, is not illegal) has a deterrent effect. We're supposed to believe that racists and religious fundamentalists will be deterred from criminal acts motivated by their extremism because (at least in Fargo) they may be charged with a misdemeanor.

I know.

It's absurd.

There is no evidence that hate crime policies deter hate crimes .

But we don't put these policies on the books because they work. They're created by politicians, at the behest of activists, so that they can all be seen to be doing something simple and direct and understandable in response to a hugely complex and confounding problem.

We should want laws that work, that accomplish their stated goals, not feel-good ordinances that are more political theater than substance.

Opinion by Rob Port
Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at rport@forumcomm.com. Click here to subscribe to his Plain Talk podcast.
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