September 29, 1999
By Bill Blomberg
The Denver press reported on Saturday September 25 that two Wyoming prison escapees were suspected in the robbery/murder of a gay man, Dan OBrien. In the middle of the Posts report on the incident, the following comment was included: [Police spokesman Virginia] Lopez said police believe the suspects may have befriended men they thought to be gay because they saw them as easier targets for robbery. She also said it did not appear the suspects were motivated by hate.
Coincidentally, it is almost one year since two other Wyoming men abducted and murdered the gay man Matthew Shepard. In that instance, the victim was tied and beaten senseless (he died several days later) for no other stated reason than that he was gay and had allegedly made a pass at one of his killers.
The Shepard story was the lead on every newscast in the country and stayed in the news for weeks. The journey of his killers through the justice system continues to be reported on. After Shepards murder, there was a national outcry for new and more comprehensive hate crimes legislation. It is a sure bet however that OBrien will quickly be (probably already has been) consigned to obscurity.
Whats the difference between these two crimes? For the victims, not much, although the case could be made that Shepard was tortured to death because his killers were driven by emotions. OBriens killing on the other hand was, as they say in The Godfather, business, not personal. It is unlikely that OBriens family takes much solace in that distinction.
The undisputed result in each of these crimes is that a person was wantonly murdered. Although the motivations of the criminals are known to be markedly different in each case, the outcome was still murder. That and that alone is societys concern. Treating these two crimes differently because of real or perceived variations in the motives of the perpetrators is beyond both the abilities and the interests of society to pursue. If anything, that job is best left to God.
Shepards killers could easily have maintained that they wanted only to rob him. Would it then be in the states interest to launch an expensive, time-consuming investigation trying to prove some other motive? Shepard would still be dead and his killers would still be dangerous criminals.
Maybe this is just what OBriens attackers did killed him out of pure, undistilled hatred for what he was, and then disguised their crime as a robbery gone too far. Maybe OBriens killers were of the same ilk as Shepards, only more wily. As a prosecutor, why should I care?
This is not to say motives are irrelevant. Police often use motive as a tool to develop a list of possible suspects. Furthermore, we well recognize that motives like self-defense, even including the so-called burning bed syndrome, are extenuating circumstances which often become the basis for not criminally charging people.
Self-defense is a lawful basis for killing. Establishing that motive or circumstance is essential to administering justice in those cases. Such distinctions serve to define whether a crime was even committed or not. This is entirely different from the irrelevant distinction which hate crimes legislation seeks to create. With the hate crime debate, there is no dispute that a crime was committed and thats all that matters. Why it was committed might be of academic interest, and might help us understand the criminal mind, but this is outside of the mandate of the criminal justice system.
If Shepards killers had stood on a street corner in Laramie and shouted, We hate gays. Death to the gays. this would be fully protected free speech. If they later killed somebody for money, for being gay, or for no obvious reason whatever, they would have been guilty of murder only. If we deconstruct the concept of a hate crime in this manner, we see that it is simply the combination of a brute crime with an element of free speech. Lest we forget, free speech (and by extension, thought, feeling, prejudice, etc.) is not a crime.
Dan OBrien is no less a victim and no less dead than is Matthew Shepard. Why he died, only his killers know for sure. To give his killers some lighter treatment than that received by Shepards killers would be a travesty. When it comes to hate and crime, crime victims everywhere would probably agree hate me all you like, just dont commit a crime against me.
Bill Blomberg is the Research Associate with the Independence Institute, a free-market think tank in Golden, https://i2i.org.
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