Even Good Laws Are Bad
Why criminalizing our enemies threatens our movements
Laws are bad. Especially the ones we fight for thinking they are meant to protect the vulnerable. Especially the ones we think will help our side.
This week, a new law went into effect in Virginia that is a prime example. The Virginia Human Rights Act, SB 7, adds to existing state hate crime provisions, providing protections against discrimination in employment and public accommodations, but also enhancing criminal penalties for things like assaulting someone because of their identity.
Now every humane, reasonable person can agree that hate sucks, and that targeting people because of their identity is bad. For the average American, it stands to reason that acts of hate should be criminalized. It is common sense in our society, under our current system, to say “bad behavior should be punished by the state.” It is hard for us to imagine any other way of holding people accountable for harm. To be clear, I do not lose sleep over the fate of white supremacists. I do lose sleep over how the law that might sometimes put them in prison is actually applied.1 Let’s call the arrest of a white supremacist “copaganda of the deed,” meant to sell the left on the legitimacy of the police state.
Aside from the fact that punishing people doesn’t prevent crime or make us safer, adding new offenses to the criminal code is shooting ourselves in the foot. Laws are bad because, bluntly speaking, they are written by the powerful to protect the interests of the elites, and even the ones we think will help “our side” will be used against us. Whenever we criminalize something, we hand the state yet another weapon: new crimes to charge us with and more funding for more police and prisons to enforce it. We strengthen the arm of those whose interests are in our repression, not our protection. The law is always unevenly enforced, and is systematically applied in ways that protect the advantages of the elites at the expense of the vulnerable and marginalized. Criminalizing our enemies is a tempting bargain, but it is a Trojan Horse.
On the face of it, SB 7 seems like common sense, but only when we take the law out of its historical and political context and ignore the fine print. At this historical moment, for instance, anti-hate language is being used by the state as a cudgel against pro-Palestinian activists to criminalize acts of defense against Zionist agitators. This is personal: it is happening to me right now. The rather innocuous, commonplace language about discrimination on the basis of protected class is easily and deliberately twisted to conflate anti-Zionism with anti-Semitism, thereby painting any anti-Zionist or pro-Palestinian protest as hate speech. Any ensuing altercations, no matter how provoked or necessary for self- or collective-defense, are painted as hate crimes. While the law may scoop up the “right” people every now and then – i.e., fascists – these are not the groups under scrutiny by law enforcement. We are. And the law is meant to be used against us.
The state offers us progressive sounding laws to tempt the left into giving it more power. SB 7 is just one of many examples, historical and contemporary, of how legal efforts to protect vulnerable or marginalized classes are weaponized against those very groups. Some of the first anti-masking laws were sold as measures to protect Black communities from the Ku Klux Klan. But they are now being weaponized against protestors while criminalizing immunocompromised people existing in public. Similarly, the FBI’s COINTELPRO was used to surveil and disrupt the KKK, but the vast majority of its resources were used to dismantle and criminalize revolutionary movements. “Stand Your Ground” laws in various states purport to protect people from prosecution for acts of self-defense, but in practice, the protections of those laws have not applied to Black people, especially those who are women or trans.
If there is any doubt about the ultimate intent of the Virginia Human Rights Act to enhance the repressive powers of law enforcement, one look no further than the additional provisions identifying law enforcement officers as a specially protected class. The law reads, “if any person commits an assault or an assault or battery against another person knowing or having reason to know that such other person is a…law enforcement officer…such a person is guilty of a Class 6 felony, and…the sentence of such a person shall include a mandatory minimum term of confinement of six months.”2 Several categories of law enforcement personnel are included in the act, which also extends to other professions such as school employees and healthcare providers (these latter carry lower mandatory minimums). In these cases, the state need not even prove hateful intent to be eligible for enhanced charges under this law. Not only does this claim professional affiliation as an identity like race or gender, the standard of proof of a hate crime is even lower. While the intent of a hate crime law is to criminalize a particular motive, in this case there is no question of motive: simple knowledge of that person’s “identity” while committing an alleged offense is enough. In the name of protecting minorities, this law gives yet another layer of power and protection to the police, who are the single greatest threat to the safety of marginalized groups. I predict that the majority of people convicted of crimes under this law will be BIPOC and protestors, not white supremacist bigots.
The governor who just signed this bill into law is an anti-trans, white supremacist bigot who is packing our school boards with fascists. He would not have signed a bill that would meaningfully challenge his agenda of targeting and criminalizing marginalized groups.
That is why I am appealing to the rest of us to stop asking the state to criminalize things, even things we agree are bad. We need to stop begging the police to involve themselves in our communities or solve our crises or protect us from our enemies. They are our biggest enemy. Every time we beg the state to put people in prison to protect us, or to “do more” to protect vulnerable community members, we hand the state another cudgel to beat us with. The state doesn’t exist to protect us. It is there to ensure our compliance. This should be more abundant than ever after this week’s SCOTUS decision placing the President above the law, formally ratifying dictatorship and paving the way for explicit one-party rule. The state isn’t even pretending anymore, so we need to stop begging it to be something it never was or intended to be.
Only we keep us safe. It is up to us to protect ourselves from harm, including harm from the state, which is the most dangerous threat to our lives and future. And while self-defense can be important, I am really talking about collective defense. That will necessarily include armed resistance, but also means building power through community infrastructure and mutual aid. We have believed the state’s propaganda that it is the protector of law and order and normalcy for so long that many of us who are accustomed to life in the imperial core are woefully unprepared to do any of these things. We have learned dependency on capitalism and the state, and our movements never recovered from the repression of the 60’s and 70’s. Many of us do not have strong families, neighborhoods, collectivist traditions, connections to land, or lineages of resistance to rely on. And even fewer of us have the tools or skills to defend ourselves or meaningfully resist oppression. We have a lot of work to do reviving these lost linkages, building new ones where none exist, and learning from communities and movements who have kept them alive against all odds for centuries.
When the law does put him in prison, he becomes a tool of state repression, an enforcer of racist divide-and-conquer social structures that prevent prisoner solidarity and curtail organizing behind the walls.
https://lis.virginia.gov/cgi-bin/legp604.exe?241+ful+CHAP0334