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Are some lives worth more than others?
To loved ones, surely. But before the law?
Sirhan Sirhan, the convicted slayer of Robert F. Kennedy, recently went before a panel of the California parole board for the sixteenth time. On each of the fifteen previous occasions, Sirhan’s petition for parole from his life sentence was rejected, upon the recommendation of the prosecutor’s office. This last time, however, the prosecutor’s office did not oppose the petition, and the panel recommended that Sirhan be released, after serving more than a half-century. The board’s recommendation now goes to full board and then to the governor.
Had the victim been almost anyone else, it’s unlikely the story would have made the papers. Not even the most rigid law-and-order types would make a fuss over releasing an elderly prisoner who pretty clearly is no threat to society. But Bobby Kennedy wasn’t anyone else; to many in 1968, his presidential candidacy represented a hope that the Democratic party and then the country could be rescued from clutches of Vietnam and domestic turmoil. His death killed that hope, and more than a few from that generation think Sirhan should never go free. His crime was too great.
In homicide law in 1968, Robert Kennedy was no different from anyone else, and so Sirhan was tried under California law for ordinary murder. Three years earlier, Congress had passed the first federal law against killing a president or vice-president. That 1965 law followed the assassination of John Kennedy by Lee Harvey Oswald. Murder was not a federal crime, which meant that Oswald would have been tried under Texas law had he in turn not been killed while in custody. Dallas County included many people hostile to John Kennedy, and prosecutors might have had difficulty persuading twelve jurors to convict.
Or so it occurred to members of Congress, who were in a federalizing mood already. This same session produced the 1965 Voting Rights Act, which was based on the longstanding observation that Southern states couldn’t be counted on to enforce the Fifteenth Amendment. The federal government had to step in.
Yet the 1965 law wasn’t a general murder law; it applied only to the president and the vice president. And in doing so it made, in federal law, the lives of presidents and vice presidents worth more than the lives of others.
The argument was that assassination is different. It is an assault on the state. Perhaps. But making that leap treats the president as the state (in American usage, as the nation). Louis XIV notoriously declared himself to be the state: “L’état c’est moi.” Republics generally shun such personalization. If anyone is the state, it is the people as a whole.
One might say that the president is the representative of the people, which is true enough. But is the president above the people? Is the president’s life worth more than the lives of other people? No president since Jackson, certainly, has been willing to make such a claim.
Over time, numerous American jurisdictions have put police and firefighters in separate categories from other people, subjecting their killers to stiffer penalties. Here the argument is utilitarian rather than essential. Police and firefighters do represent the government, but the real reason for the laws is that if police and firefighters are not protected sufficiently, no one will take those dangerous jobs.
This is not a problem in recruiting presidents; aspirants for the White House are never in short supply. Anyway, the 1965 law doesn’t apply to candidates for the presidency, as Bobby Kennedy was in 1968. A law passed in 1971 made it a federal crime to kill members of Congress, and would have applied to Kennedy, who was a senator from New York at the time of his death. But it was his candidacy for president, rather than his service as a New York senator, that seems to have brought him to the malevolent attention of Sirhan.
Should candidates for president be treated differently at law? Those people who are upset that Sirhan might be released appear to think so. But who would be counted as candidates in such a law? Nominees of their parties? Kennedy didn’t yet have the nomination of the Democrats, and might not have achieved it. All who simply announce their candidacy? That seems too broad.
How about other noteworthies? Martin Luther King was assassinated just months before Bobby Kennedy, and the murder triggered riots all across the country. His killer, James Earl Ray, died in 1998 while serving a 99-year sentence. One can easily imagine new riots if Ray were alive today and released on parole. But again, plenty of others convicted of murder in 1968 have been paroled long since without anyone noticing. What makes King different? More popular, yes, even revered. But should the law—in this case the parole system—be guided by popular opinion?
In that same era of federalizing ambition, a 1968 law made it a federal crime to interfere forcibly on account of race, color, religion or national origin with anyone engaged in a federally protected activity such as education, jury duty or use of public accommodations. Generally considered the first “hate crimes” law, the 1968 statute was succeeded by others at the federal and state level that extended to religion, sexual orientation, disability and gender identity the categories afforded special protection.
There were good reasons for the extensions. A 2009 federal law was named for Matthew Shepard and James Byrd, who had been killed with particular brutality, the former for being gay, the latter for being black.
But even so, sticklers for the notion of equality before the law found the trend worrisome. Would the crime have been any less if Matthew Shepard had been straight? If James Byrd had been white?
The response was, yes, because the murders had the effect—and quite possibly the purpose—of terrorizing other gay and black people. Further, said the defenders of the 2009 law, a federal law was necessary because the perpetrators of crimes against gay people and black people were less likely to be convicted if the matter were left to state courts, as history had sadly shown.
A particular aspect of hate crimes laws that troubles their critics, and some of their supporters too, is that they require prosecutors and juries to impute particular motives to defendants. A crime becomes a hate crime, typically, when the criminal act is committed because the victim is a member of a protected group. This requires the state to probe the thoughts of defendants, and to punish them more severely if the thoughts fall into proscribed territory.
In America, the concept of policing thoughts has commonly been associated with totalitarian regimes, and rightly so. In America, people are supposed to be free to think whatever they like. In America we punish bad actions, not bad thoughts. Yet the hate-crimes approach blurs the distinction.
Nor is it clear how well the system of special categories works. Four presidents have been assassinated, all before the 1965 law. Lincoln’s murderer, John Wilkes Booth, was killed resisting arrest and didn’t face prosecution. James Garfield was killed in Washington, D.C., and his assassin, Charles Guiteau, was tried, convicted and executed under the federal district’s regular murder law. William McKinley was shot in Buffalo, and his assassin, Leon Czolgosz, was tried, convicted and executed under New York state’s murder law. John Kennedy’s assassin Oswald, like Booth, was killed before he could be prosecuted.
Since passage of the 1965 law, no president has been killed. But Gerald Ford survived two assassination attempts, both in California in 1975. In the first case the assassin’s gun failed to fire; in the second the gun fired but missed Ford. Ronald Reagan in 1981 was struck by a bullet from the gun of a would-be assassin and was nearly killed. Conceivably the 1965 law deterred other attempts on presidents’ lives, but clearly it wasn’t foolproof.
As to the hate-crimes legislation, the jury is still out. Reports of hate crimes have fluctuated and in some jurisdictions actually risen. But this might be because a greater proportion of hate crimes are being reported. Even so, at least one expert doubts their efficacy. “I think they essentially come down to feel-good laws,” Harvard’s Michael Bronski says.
It may be that in our imperfect world, a patchwork of protections is the best we can devise. Yet we shouldn’t think that this approach comes without cost and risk. The cost is in damage to the vision of one law for all, and the risk is that the farther we go toward special protection for particular groups, the farther we may get from a system where no one needs special protection.