Port: North Dakota’s much-ballyhooed hate crime ordinances aren’t being used

MINOT, N.D. — I love words, as readers of this column probably know by now, and in particular, I love finding new words that precisely describe a given situation. So I was delighted to discover a new one this morning.

To “fudgel” is to pretend to work while not actually doing anything.

I’ll use it in a sentence: Hate crime ordinances are an act of fudgelling.

And they are.

It’s been

almost two years

since Fargo’s city commission voted to implement a new hate crime ordinance. The law is an intensifier for criminal charges, adding a class B misdemeanor

if a crime is committed

“in whole or part because of the victim’s perceived or actual race, color, religion, gender, disability, sexual orientation, gender identity, national origin or ancestry.”

When it passed, Fargo’s politicians and activists were elated. They showed the rubes in the rest of the state what a progressive community Fargo is.

“May history and our community see those who did their best to protect us from hate, and those who stood in direct opposition. We must consistently strive for Fargo to be inclusive for all,” Wess Philome, one of the activists who pushed for the ordinance, said upon its passage.

He added that it wouldn’t end up like the hate crime section of state law “that no one has ever been charged with.”

But that’s precisely what has happened. Except, instead of “no one,” it’s been just one. In the first year the ordinance was in place, exactly one person was charged under it — a man who allegedly uttered a homophobic slur

during a physical altercation outside a bar in February 2022.

He was acquitted.

He represented himself and argued to the jury that he was fighting in self-defense and that when he used the slur, he had no idea if the person he used it against was homosexual. It was enough reasonable doubt for the jury to find him “not guilty” of a hate crime, though we might wonder if a slur during a bar fight, as uncouth as it is, really rises to the level of “hate crime.”

Since then, no other charges have even been filed under the ordinance, according to city of Fargo spokesperson Gregg Schildberger.

I guess Fargo has solved racism by making it illegal?

You can stop laughing now.

In May, 2022, the city of Grand Forks joined Fargo in implementing a hate crime ordinance, again to the insistence by politicians and activists that

the ordinance was necessary and that it would make a difference.

“Our records supervisor did not find any violations in our system,” Bill Macki, the deputy chief of the Grand Forks Police Department, told me.

These ordinances has been a waste of time and resources.

There is little evidence that these laws deter hate crimes,

even when the penalties are far more severe than what Fargo has put on the books.

And Fargo and Grand Forks aren’t an outliers.

Few prosecutors around the country

invest time in pursuing these charges and for good reason. These laws require law enforcers to prove motive.

A normal criminal charge only requires prosecutors to prove that the accused committed an act. They perpetrated an assault, or they stole property. Motive may be part of the prosecution’s case, but it’s not required for a conviction.

Proving motive can be complicated. And even when you can prove that a person committed a biased act during the commission of another crime, should that be illegal? Saying bigoted things is not a crime. Hate speech, as odious as it is, is still free speech. Is it constitutional to criminalize bigoted speech if it’s in the context of another crime?

These are deeply complicated questions. Busy prosecutors trying to get justice for assault or vandalism probably don’t want to risk their convictions by invoking complicated and controversial legal concepts.

Which, again, is why few prosecutors use these laws. I make no criticism, here, of prosecutors in Fargo or Grand Forks. By declining to use the ordinances, they’re making a prudent decision.

So what was the point of all this?

It was fudgelling — the appearance of work without accomplishing anything.

Hate crime ordinances are a simplistic something preening politicians can take credit for to distract from the lack of progress on the more confounding facets of chauvinism and intolerance in our society.