Port: Shouldn't we ask if 'bias crime' legislation actually works?

Fargo-area politicians and activists will no doubt have a lot of success milking this issue for notoriety, and donations, but even if they're successful in implementing a policy, and even if that local policy withstands legal scrutiny under state law, it isn't likely to change much of anything.

iStock/Michał Chodyra
iStock/Michał Chodyra

MINOT, N.D. — Bias crime laws, the new lingo for hate crime laws, are, from the perspective of public policy, not all that unlike policies the death penalty or sex offender laws.

They're all great for politicians who want to fire up a certain kind of voter.

They make a certain amount of sense, at least superficially. If we want less of something, then stiffer punishment should deter it, right?

Plus, there's the catharsis afforded by feeling like you're really sticking it to people who do awful things.

Except, in practice, things don't actually work that way.


The death penalty doesn't deter crime. "[T]here is no credible evidence that the death penalty deters crime more effectively than long terms of imprisonment," the ACLU tells us . "States that have death penalty laws do not have lower crime rates or murder rates than states without such laws. And states that have abolished capital punishment show no significant changes in either crime or murder rates."

Sex offender registries don't work either. About 93% of sex crimes against children are committed by someone that child already knows, not some stranger. Around 95% of sex crimes are committed by people who wouldn't even be on a registry in the first place.

Nor do "bias" or "hate" crime policies seem to deter bigotry. These policies have been proliferating at the local, state, and federal level as far back as the 1970s, yet hate crimes, even acknowledging how notoriously difficult they are to track , are about as prevalent as ever .

"I think they essentially come down to feel-good laws," Harvard professor Michael Bronski told NPR back in 2015 . "I think part of what they do is that they actually misdirect us from looking at much deeper issues," he continued. "Racism is a problem, homophobia is a problem, violence against immigrants is a problem ... so we end up passing these laws and saying 'look at this, we're actually doing something.'"

That seems an apt description for what's going on in Fargo, where left-leaning members of the city commission, amid great gusts of hyperbole, are pushing for a city ordinance making bias crimes punishable by 30 days in jail and a $1,500 fine (the maximum allowable punishment for violating an ordinance).

"We are going to find out that North Dakota is one of the worst states in the country to protect people at risk," left-wing commissioner John Strand said before the 3-2 vote to pursue an ordinance. "We're going to find out North Dakota is one of the few states without any protections in place. We're going to find out North Dakota's mindset is, 'we treat all people well.'"

I'm afraid I have to disagree with Strand's claims about our state, and I suspect if pushed on them, he would struggle to articulate a factual argument to support them, but let's set that aside for a moment.

Let's stipulate to Strand's statement that North Dakota is one of the "worst states in the country" for hate crimes.


Is a bias crime policy, implemented by Fargo or even statewide, going to help that problem?

Probably not.

A "hate crime" or "bias crime" is not easy to prove in court. "Targeting someone’s motive makes it very difficult to actually prosecute hate crimes," Vox, a left-wing news site, reported in 2017 . Local officials echo this difficulty. Cass County State's Attorney Birch Burdick told Fargo's leaders that "actual assaults... are easier to prove in court than the intent behind an assault," per Barry Amundson's report .

Hate crime policies ask prosecutors to prove not only guilt beyond a reasonable doubt but also intent.

Because of this, while many hate crimes get reported, far fewer of them are actually prosecuted as hate crimes. "Hate Crime Law Results in Few Convictions and Lots of Disappointment," the left-leaning news organization ProPublica reported in 2017 .

The top reason? "It is extremely hard for prosecutors to prove the intent of the accused."

In California, in 2015, there were 837 hate crime incidents reported and 189 prosecuted. Out of those numbers, just 59 cases resulted in convictions .

How can this sort of policy serve as a deterrent if only a tiny fraction of hate crime perpetrators suffer the penalties?


Bigotry is a problem in our society. No question.

To the extent that it's a solvable problem, the solutions will come from society, from our families and our social groups and our cultural institutions, not from courtrooms.

Fargo-area politicians and activists will undoubtedly have a lot of success milking this issue for notoriety and donations, but even if they're successful in implementing a policy, and even if that local policy withstands legal scrutiny under state law, it isn't likely to change much of anything.

The public's time and money would best be spent on other initiatives.

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Rob Port, founder of, is a Forum Communications commentator. Reach him on Twitter at @robport or via email at .

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 Click here to subscribe to his Plain Talk podcast.
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