I have to confess that I'm a bit meh about hate crimes legislation. Matthew Shepard was murdered, after being kidnapped and beaten, etc. So, many crimes were committed. And absolutely, they were committed because he was gay. We punish the crimes of murder, kidnap, and battery. I'm sure that in Montana, the punishments are quite severe. Why isn't that enough?
I'm not engaging in rhetoric, I'd like a real answer.
The thing that made me leery of Hate Crime Law was the infamous Fat Nick case, in which a kid got 15 years for what really sounded like beef--with a quasi-ethnic twist. The victim had literally come to the neighborhood to steal a car. Read about the whole story here:
It is true that Fat Nick chased Moore through the streets that night, and after finding him hiding behind a porch set upon him with the softball bat, saying, "What up, nigga? This is what you get when you try to rob white boys." But it was also true that Glenn Moore and his two friends had come from East New York (one of Moore's friends, Richard Pope, lived there), on a failed excursion to steal a car in Lindenwood. Moreover, there had been a spat of robberies in Howard Beach in the weeks preceding Nick's attack, documented by letters to the editor of the Queens Chronicle. "Where were the press, Mayor Bloomberg, or Police Commissioner Kelley when they held my family hostage?" said Edward Benedetto, the author of such a letter, as he described being robbed at gunpoint by three black men to a Chronicle reporter after the media descended on Howard Beach.
In his confession, Fat Nick seemed accepting of the presence of black people in East New York, whereas detective D'Angelo seemed coercive, as though he had a bigger arsenal of generalizations about race at his disposal than Nick did, albeit for different purposes. In other words, it seemed possible that Nick had selected Glenn Moore because he was black, but it seemed uncertain as ever that Nick was a racist, as opposed, say, to a street punk with an anger problem who acted with the instincts of a racial profiler, and who should only have been charged with aggravated assault.
The law isn't my area, and I'd love to hear a solid defense of hate crime laws. It strikes me as weird that the mere utterance of a racial slur during a violent act automatically makes it worse.
The Beautiful Struggle: A Father, Two Sons, and an Unlikely Road to Manhood 
TNC --
The standard conservative line against hate crimes laws is that it punishes "thoughtcrime;" that someone's mental state at the time of the crime is totally immaterial to their punishment.
That's not true at all. Since we've had laws, we've taken into account the mental state of the perpetrator at the time of the crime. We agree that someone who intends to kill someone and does so (murder) is more dangerous than someone who doesn't intend to kills someone and does so (manslaughter).
Someone who punches you and intends to punch you is a criminal. But someone who punches you just because he intends to punch some black dude is a worse criminal. Your race -- a minor characteristic, and certainly something that shouldn't provoke anyone to violence -- is enough to make him throw a punch. We should deter that far more strongly.
-- ACS
Fundamentally, I find the whole hate crime thing to be well-intentioned, but absurd. The conservative line of thought is, I believe, the correct one in this instance. It is the criminalization of thought—not mental state (and there's a clear difference between the two). And while I understand and sympathize with the motives behind enacting such legislation, the whole thing seems a little offensive to me too.
It is the criminalization of thought—not mental state (and there's a clear difference between the two).
That's a distinction without a difference. The law often (a) makes a difference between specific and general intent and (b) examines the mens rea with regard to particular characteristics of a victim.
I disagree. It's the distinction between motive and intent. The intent is to kill you. The motive is to kill you because you're a homosexual. One is germane to what you did, the other to why you did it. Motives prove intent, but it is the intent we find criminally actionable. The difference isn't merely semantic: Intending -- conspiracy -- to commit murder is a crime. Hating someone is not so actionable; it requires that added step of intent.
I acknowledge the difference between intent and motive and good point that my examples fall under intent.
I was hoping not to retread ground, but I guess it's best to stick with the stronger arguments.
That's what I get for trying to be clever.
Strictly speaking the importance of motive has been left up to judicial discretion rather than embodied in law.
It's an example of how impossible it is to exorcise ethics from law. Law is inherently philosophical and this includes making judgments about the "blameworthiness" of individuals.
It's why we have the idea of mitigating and aggravating circumstances.
Hate Crime law just defines one type of aggravating circumstance.
Here's a run-down that's far more through than my own pedestrian under-grad explanations.
From Carissa Hessick of Arizona State:
Motive's Role in Criminal Punishment
Motive is an aggravating or mitigating factor in crimes so it's relevant.
I don't think anybody's arguing that motive is irrelevant. I think people are arguing whether or not motive should be criminalized.
The the criminalization of motive has numerous other analogues in law.
The best example is, of course, terrorism law.
...but obstruction of justice, insider trading, slander, attempted murder.
Could probably come up with a few more.
Slander is a civil offense that has to show damages to reputation or well-being; that I think Byron York is a doody-head because I hate him and say so publicly may be slander or libel, but no damage is incurred. Indeed, all of those things you mention have specific actions attached to them: You obstruct justice by actively doing something to prevent an investigation or prosecution from being successful. You use your own knowledge to enrich yourself in a fashion deemed illegal. You try or intend to kill someone. It's not why you did those things that makes them criminal!
Terrorism is, itself, not prosecutable because of the political or religious motives. It's the actions: kidnapping, murder, etc. Gang members and abusive spouses can and are tried under anti-terrorism statutes, because they use the fear inspired by their actions or threats to illegally modify someone's behavior -- by intending to do illegal acts.
Of course, I am not suggesting that criminal prosecution should take place without regard to a suspects motivation. That being said, I think there’s a distinct difference between using the motive to understand the nature of the crime and essentially criminalizing the motive itself. As for precedent, I’m not legal expert, to be sure. I’m not making an argument about what is allowed under the law. I’m making one about what I think should be allowed under the law. And personally, if I look from the perspective of the state, I don’t see the difference between say, a white guy brutally beating a black guy because he’s black, and a white guy brutally beating a black guy for no reason at all (you can alter the nature of criminal and victim as many ways as you know how). I don’t understand why senseless violence is any more palatable than the bigoted variety. It’s up to society to stigmatize bigots. It’s up to the state to penalize criminals.
i think conspiracy has a component where you commit the crime of conspiracy when you simply agree to commit a crime with someone, even though you haven't actually done the crime you are contemplating.
This is not just a "conservative" line. In the US, I have a fairly good idea what hate speech and hate crime statutes would look like in their drafting and enforcement:
Assault: punished by 1 year in prison
Assault of a Christian: hate crime, 10 year minimum
"The Bible tells me that the Palestinians are animals infecting our homeland who must be slaughtered": protected religious expression
"Israel has some issues": anti-semitic hate speech, 10 year minimum
And so on. I'm hardly a "conservative", but I'm not generally a fan of MORE punitice criminal law, nor of MORE government discretion in administering it, given whose interests the government is designed to protect.
But why should we deter that more strongly, compared to say, some person who throws a punch because they like seeing their victims cowering in pain? Or someone who throws a punch because they want a reputation as a bad boy and don't care who they hit to get it?
Why should any characteristic of anyone justify them being punched? Well, some are obvious, eg if I am coming at you waving a bloody knife and screaming that I'm going to cut your heart out, then that's a characteristic of me that would justify you acting in self-defence. And we can also make adjustments if I have been behaving in a very provoking way and also if this punching is very out-of-character for you. But there are millions of benign characteristics of people that don't justify being punched, why single out some of them like race or gender?
Rachel Maddow has given the most concise and persuasive defense of hate crimes laws that I've seen outside a classroom.
Check out this clip from her show last night:
http://www.msnbc.msn.com/id/26315908/vp/30508882#30508882
Basically, it's an issue of 1) a crime committed against an individual because of race, gender, sexuality, etc. -- like lynching, is not only directed toward the individual, but meant to terrorize the entire community and 2) hate crimes legislation gives federal authorities the right to push for prosecution in a locale that may not value the life/well-being of the victim because of their identity and/or to offer federal resources for the investigation and prosecution of the crime.
"...meant to terrorize the entire community"
--cosign.
it makes someone a target for assault because they embody a type of humanity that other ppl believe shouldn't be allowed to walk down the street -- women, ethnic/racial minorities, ppl who are not hetorosexual -- are made targets for crimes that would pass over them if they would just not be themselves. that would make everyone else more comfortable [and less apt to hit them over the head].
What about bankers? Or lawyers? Cops? Plastic surgeons? What if you really hate Republicans? I mean, really hate them? How about people who blow up Family Planning clinics? There's a fair amount of hate out there. There's any number of ways that hate can be channeled violently. At what point do we determine that this or that hate passes the threshold of what is or is not socially acceptable? Or fails to pass? Are there levels or kinds of hate that lead to violent crimes that the state should consider somehow palatable?
I'm not sure why people keep bringing up slippery slope arguments in this thread. If there was a serious history of violence and terror targeted against plastic surgeons, maybe I'd see your point, but at least on planet Earth that's not been an enormous problem. I don't quite understand if people are genuinely worried that their congressman will waste time introducing a bill identifying plastic surgeons as a protected class, or what. Don't you agree that there has been a serious history of violence targeted against gays and racial minorities?
I do think blowing up a family planning clinic is domestic terrorism- it's meant to scare all women away from seeking abortions, not just to harm the patients and doctors who were there at that particular clinic. I think it should qualify as a hate crime rather than as just property damage (or murder if people were killed).
Mind you, I'm not arguing in favor of a slippery slope. I think the concept itself has no slope at all. I think it's a cliff. My point is that every category should have equal protection under the law. And that is the exact opposite of what this law tries to attain. What is the point of this? Deterrence? Of what? Violence or hate? The violence is not the symptom of a greater crime. It is the crime itself.
The problem as I see it is that this is being treated as a civil rights issue and it is, just not the way you think. You're trying to legislate what's in people's hearts and minds. Besides being entirely knowable, in a free society, such an endeavor is fundamentally corrupt. Noble intentions notwithstanding. It's the opposite of just. It's a persuasive lie.
That should have read unknowable. I'm still trying to get used to the Mac keyboard.
And to be clear, it's not as if I don't sympathize with the sentiment behind these laws. To a certain degree, the arguments in favor are quite compelling. But they're compelling in the way arguments in favor totalitarianism can be. The motives for them are understandable. The anecdotes that seek to justify them are moving. But, in the end, the state has no business saying what people can or cannot believe, or think. And all of you know it.
Why is it that everybody wants to be a dictator when they're the ones in power?
This might post out of order since it won't let me reply to BreakerBaker's point below, where you say "every category should have equal protection under the law. And that is the exact opposite of what this law tries to attain."
Rachel Maddow explains in the video TNC posted how exactly hate crime legislation DOES provide equal protection under the law. Its main purpose is to allow the federal government to step in if the local authorities are failing to provide equal protection, e.g. in the case of a racist police department that fails to investigate crimes against black people, or in the case of a homophobic police department that doesn't take gaybashing seriously. It's not fundamentally about prosecuting thought crimes, it's about making sure that crimes are fully investigated and prosecuted even if they're committed against a person who the police or the powerful members of the community might not particularly care about.
@Jessica
The scenario you describe, the one in which the federal government imposes its will on a bigoted police force or district court, I'd say it's a fairly compelling argument if all we were talking about whether or not the federal government should be able to claim jurisdiction over the local government. Of course, that creates a number of state's rights issues, but I'm not really concerned about that.
Nor am I really concerned by this notion that one group is protected over another. I'm not intending to make the sort of default anti-affirmative action style argument about this. Because I don't want to imply the notion that this or that horrific crime does not deserve prosecution to the fullest extent. I hope I haven't left that impression.
My argument with regard to categorization of the victim is more or less to say that it's all terrible, which was sort of to oppose the stated notion by some others here that preferential treatment was deserved based around historical precedent of oppression or violence. I'm more than a little skeptical of this argument. I think it runs the risk of trivializing senseless violence.
At any rate, back to your point (or Rachel Maddow's): in the case of a bigoted police force that doesn't concern itself with violence against black people or gays (or whatever protected group), this seems to be a scenario in which the criminal's hate is almost secondary to that of the police force. I mean, if the federal government is swooping in to try some guy who let's say beat up a guy near a gay bar, are they swooping in because the think it's gay bashing or because they don't trust the local government to take the crime seriously? Both? How does the government make such a complex decision?
In the end, I think the feds or state government should be able to assert jurisdiction over the local government if it is corrupt and uncaring (Mississippi Burning style), but I simply don't believe that the crime should be worse in the eyes of the law based only on the criminal being a bigot. Bigotry is not against the law. And if we begin to suggest that a crime is worse based around motive, if we begin to say that the action is worse if the thought is present, then we're a step closer to criminalizing thoughts without actions.
People think such a suggestion is comical. Yes. People always think suggestions of their own misuse of power are absurd. There's a reason we allow people to say horrible, terrible things in our society. It's not to protect their bigotry at the expense of our sensibilities. That's just a consequence of our freedom.
IIRC, the purpose of hate crime laws is to impose law where local authorities fail to do so. I understand the motive and think this was vital to the civil rights movement. However, I have two issues:
1) is federal involvement used when local authority is sufficient?
2) the federal gov't doesn't get involved in any number of failures of local law enforcement (i'm talking corruption here). sure, there's the occasional RICO, but the "small potatoes" don't get touched.
meant to terrorize the entire community
Exactly. If a guy beats up someone because they stepped on his shoes or whatever, that person has committed assault, but people who share some characteristic with the victim have no particular reason to be afraid. (Other than, 'that guy is an asshole')
If, on the other hand, a guy beats up someone coming out of a gay bar simply because of sexual orientation, then everyone else in the local gay community or going to gay bars in that area has reason to fear for their safety. It makes public space seem unsafe and less accessible to members of the targeted group.
So the impact of the crime is not limited to the initial assault. It carries with it a broader threat.
Rufust, in the Fat Nick case this is not what happened. In this case, Nick's community was being targeted. He went vigilante on kids who were there to steal a car - but not random black kids who happened to be in the neighborhood.
No one would agree with what Nick did, but why the added hate crime charges? Isn't the system designed to handle vigilantes?
Ummm,doesn't the guy who beats someone up because they stepped on his shoes make *everyone* afraid? After all, we all share the characteristic of "possibly at some point in the future accidentally standinging on someone's toes" Doesn't public space become unsafe to everyone if there's such an asshole running around?
Didn't everyone get scared when those Beltway snipers were operating?
But people can intend to terrorise the entire community without any racist intent - eg a gang who just want to extract money from victims like the Mafia do and are so greedy that they don't care about their victim's race/gender/sexual orientation/etc.
And if you want to give more resources for prosecution in a locale where the local authorities don't value the life/well-being of the victim, why not do that directly? Why make it dependent on the state of mind of the murderer? To take the case of my greed-obsessed gang, if they killed your brother in their campaign of intimidation wouldn't you want them brought to justice independently of their motives? And if the local authorities weren't interested, why shouldn't the feds come in in that case?
Or say if your brother was murdered by someone of the same ethnic group and sexual orientation out of motives of jealousy, and the local racist authorities didn't care because "that's what those sort of people do to each other". Should't the feds come in that case too?
I think it's not about the utterance of the slur. It's about intent, of which the utterance is evidence. Much as purposely running a pedestrian over with your car (murder) is punished differently from accidentally running over a pedestrian with your car (manslaughter), attacking someone over a dispute solely as between the two individuals is punished differently from attacking someone as a representative of an entire group.
I personally don't have a strong position either way on hate crimes legislation, but it's not crazy for a legislature to determine that attacking an individual because he is black is worse than attacking an individual because you want his iPod. It's important to make sure the criminal code doesn't punish mere speech, but as long as an actual act of violence is an element of every hate crime I don't see the danger of that.
I basically repeated what the previous posters said. Sorry to be redundant - I was typing and signing in and hadn't seen their posts yet. :)
Thought provoking as always, I'm going to have to soak in this for a while now and see if anything interesting comes up.
Here's my top of the head, probably lame, response: We have laws restricting & punishing "hate speech" (I think, not a law geek - if I'm wrong here then big oof) - this seems like a logical extension of that. Since "speech" doesn't necessarily translate to literal words, a hate crime seems like it would include an act or seven of "hate speech" by default.
So, by legal definition, it technically be worse in the sense that committing X+1 crimes is worse than committing X crimes.
Kind of like when a cop pulls you over for speeding and decides to ticket you for having a busted tail light and anything else they can find to rack up your fines.
Whether it is morally worse...there's another interesting question. I don't think I'm even equipped to answer that. Have to hit up some of my philosopher friends now.
Actually, speech (hate or otherwise) is Constitutional protected. Inciting violence with hate speech is something else.
Here's my top of the head, probably lame, response: We have laws restricting & punishing "hate speech" (I think, not a law geek - if I'm wrong here then big oof)
Most types of hate speech are protected by the First Amendment in this country. Other countries like Canada and many in Europe have restrictions on what they consider hate speech. If you use hate speech to create a public disturbance or to incite violence, then I think you can be charged. But saying bad things about Albanians or any other group isn't a crime.
If you use hate speech to create a public disturbance or to incite violence, then I think you can be charged.
The bar for being charged is set fairly high in the US. You need to be inciting violence to happen at that time, not just speaking about we people should do. It needs to be a specific act of inciting violence, but just saying "We should all go rob black-run convenience stores" isn't enough. However, if you whip a mob into a frenzy with the purpose of getting them to go do it right then, it's hate speech. Creating a public disturbance isn't enough, as all hate speech could be considered creating a public disturbance.
I happen to agree with a very high bar. I feel that being able to air their views in public diminishes their power in the end. If you allow the police to stop it, you just end up creating martyrs etc.
Well then OOF on me...I was expecting more restrictions for some reason. It's funny, all the things I assume about the law but just don't have the time to know.
I do know that private speech is protected, but I was thinking public speech wasn't - possibly because ISPs have all those restrictions in their EULAs about not hosting hate speech on their sites - I've seen a lot of those so I assumed there was some form of punishment associated with it.
I'm pretty solidly in the civil libertarian camp that opposes hate crimes legislation for the various reasons others have stated eloquently. And I say that as someone who is gay and was taunted repeatedly for that in my teens. That said, I feel like if we're going to have hate crimes legislation, it should cover gender identity (real and perceived), sexual orientation (real and perceived), gender, in addition to race, religion, etc. If we're going to have it, it should be as comprehensive as possible.
This is the hypothetical that convinced me, a family wakes up and discovers their garage has been vandalized. Someone’s spray painted clowns all over it. Now imagine that instead of clowns, swastikas have been spray painted all over the garage. Is there a difference? I’d say yes. Because to commit a crime is to be an author of an act in a social setting. I’m not a lawyer, but my understanding is that the law is concerned with motivations, state of mind, and intentionality. There’s a difference between murder and manslaughter, “the act does not make a person guilty unless the mind is also guilty”. Thus there’s the possibility for aggravating and mitigating circumstances.
It seems reasonable to me to classify that group of crimes that involve the clown graffiti in a different category than the group of crimes that involve the swastika graffiti. Along the same lines, murder is not simply murder; there are dividing lines between murder, felony murder, manslaughter, and negligent homicide. (Though regarding the TNC linked article) I do understand an underlying need for proportionality in the criminal justice system of the US in general.
It strikes me that a lot of folks are focusing on the need for this legislation because of the intent of the perpetrator, but it seems to me, especially given the example here, that the compelling interest for the state is the social effects. Vandalizing someone's house using clown images carries no particular social meaning and will be dealt with by the individual family and the police, vandalizing their house with swastikas or nooses potentially upsets the entire community, bringing up a fraught history of community-wide terror, disgust, fear, guilt, etc. Now, imagine a locale decided not to prosecute for such vandalism because the local sheriff knows the kids who did it and thinks they're not too bad and kinda maybe thinks the family who's been victimized is overreacting? (Remember the attitude of the law enforcement in Jena, LA?) Don't you think, with the potential harm to the entire community, there should be special recourse to federal resources?
Funny, I started out not having a strong preference regarding hate crimes laws, but the more I witness the discussion around them, the more supportive I feel. It reminds me how resistant Americans are to thinking about systematic or structural consequences. Instead, we have a tendency to (over) emphasize the individual. Part of me understands this as a great strength of our culture, but on the other hand, I think one thing our history shows us pretty clearly is that sometimes the individual is not really the appropriate unit of analysis when thinking through how to measure impact.
Wow - this is exactly what I was going to say. Well stated.
My fear is overzealous prosecutors. We have already seen teens sexting charged with distributing child porn and people charged with violating the 9/11 terrorism laws. At what point are hate crime charges tacked on to any crime against a minority? Ta-Nehisi references the Fat Nick case, which really wasn't a hate crime but a crime against a minority, but the perpetrator was charged with hate crimes.
I don't like defending lowlifes, but I think it is also a crime to charge people with misdeeds they did not commit, too.
Following this line of thought, one could construct an argument hate crimes laws are only ever appropriate (if at all) for minor offenses.
Vandalism involving clowns is not particularly disruptive and carries mild penalties in law. Vandalism involving swastikas is profoundly disruptive and carries mild penalties in law absent hate crimes statutes. This is a situation that you could colorably argue requires remedy. (This argument is incorrect, in my view -- first amendment concerns outweigh disruption when there's no incitement.)
By contrast, murder of any kind is profoundly disruptive and invariably carries incredibly harsh penalties. If a man is shot dead outside my apartment building, I'm not mollified by discovering that he was shot for working as a clown or being a lousy lover rather than for being jewish. A man is dead in each case, and--unless we learn a new fact--the dead guy pretty much completely determines the level of disruption.
How about a family wakes up and discovers their garage has been vandalised by someone spraypainting non-racist, non-sexual, non-gendered threats all over it, basically saying "Get out of here, or we'll burn your house down with you in it".
Swastikas carry an implicit threat, given the violence committed by the Nazis against the Jews. I'm all for punishing the threat, but I don't see why that should be punished more than a non-discriminatory threat.
One of the effects of the Southern Strategy and the silent majority tactics of the seventies and eighties has been the reductionist way in which some racial justice legislation has been discussed.
The top three victims are in ascending order of reductionism:
3. Desegregation busing
2. Affirmative-Action
1. Hate-Crime Law
The average American (of any race or heritage) doesn't know the first thing about any of them but have been conditioned to believe that they are experts.
Hate-crime law is, as mentioned in the other thread, our first anti-terrorism legislation.
It allows for federal jurisdiction and harsher sentences for crimes committed on the basis of real or perceived racial heritage, gender, nationality/ethnicity, disability, and sexual orientation.
It is a triumph of pragmatic law responding to a real phenomenon with proportionate action.
It acknowledges that there is a difference between crimes committed against individuals and crimes committed for the purpose of stigmatizing a marginalized group.
The tendency for hate crimes to cause wider unrest is one concern as is the greater risk of psychological pain and suffering.
..and of course the history of the US in which hate crime has played and indelible role in shaping the national character means that the symbolism of greater penalty for hate crimes is important for reducing the prevalence of other kinds of racism.
The thing about the Shepard case is that the state was going to give the murderers the death penalty.Shepards mother was a better Christain , than I could be, and asked that they be given life without parole instead.In the notorious Byrd case in Texas, it was my understanding that 2 of the 3 murderers got the death penalty the other got life because they could only prove kidnapping .
I think that in both cases the death penalty was proper,and that the Byrd case ,there was no option .The murderers simply were not human!
Having said that, if there had been a hate crime law at the time, how could the murderers have been punished more than the death penalty. If you kill somebody in this country you can get the "chair" already . Calling it a hate crime may serve some symbolic purpose but it will not lead to a harsher penalty.
It's true that for capital hate crime the legislation can't, or course, require harsher penalties (Hyper Death?)... but Hate Crime legislation also allows for federal jurisdiction which can make a big difference.
I tend to think hate crime laws are worthwhile for basically two reasons. First, there are real hate groups out there and coordinating a response to them when they go violence might require some national level tools. That doesn't really require a special class of crime but does require legislation.
Second, for the case when locals aren't trying them properly. However, as far as I know we aren't seeing a repeat of lynching-era problems. And I might also want that sort of jurisdictional shift if a locality were systematic unwilling to enforce rape laws or what have you.
Yes the motivation is a fair reason to treat a crime differently, but I think that we're already seeing the motivation being taken into account in these cases.
Hate crimes are about motive and as such are therefore about recidivism.
There's a difference between a bar fight and a lynching.
I have to fall in the "anti" camp for hate crime laws--however nasty the statements or motivations of the perpetrator, the fact is that they're entitled to their beliefs, however offensive. What they're not entitled to is to harm others by acting out those beliefs. That, we can and do prosecute. And while we obviously consider the criminal's mental state (manslaughter vs. first degree), there really shouldn't be a difference between stabbing someone because of his race or stabbing someone because you didn't like his haircut.
As for the concern about terrorizing the community, it's also a fact that we have laws against stalking, harrassment, public disorder--all of these should suffice to prevent racial terrorization. You can't really stop a guy from shouting a racial epithet, but you can stop him from beating up on--or even menacing--the targets of his hate. But I'd rather live in a society where hateful idiots can freely believe whatever dreck they want than a society that adds additional punishment for having hateful motivations behind their crimes.
That said, I agree that it is pretty stupid for us to have hate crime laws that leave out crimes against sexual orientation.
...and there lies the questionable assumption.
The fact is there is a difference, there always has been.
US history has been a case-study in that difference.
Have they ever sufficed before?Well, my opinion is there's shouldn't--because first, a violent attack (as opposed to an accident) is in itself hateful, and should be prosecuted accordingly. Much as I'd like to see racist attitudes die out, I don't think this can be done by punishing them especially when one considers what that can often lead to in terms of free speech for less clear-cut cases. (After all, in my example, if the attacker attacked someone because they didn't like their haircut--and that haircut was an "afro", does that reach the point of a racial hate crime?)
But as to whether existing laws have sufficed before, I think the reason they often haven't has more to do with selective enforcement than inadequacy of the laws themselves. If a group of skinheads is harshly prosecuted for stalking and harrassing people, that may not stop them from hating--but will certainly do more to make them keep their thoughts to themselves. And if the penalties aren't sufficient, then maybe they need to be increased.
That impression is one of the regretful side-effects of the reductionist way hate crime law is being discussed. Congresspeople love to give cutesy names to legislation and this is what happens..
Led to that bothersome "South Park" argument that proved once and for all that most Americans don't know what hate crimes are.
Prejudice against an individual expressed as criminal activity is different from prejudice against a group expressed as crime.
The social consequences are worlds apart.
Hate crime law merely acknowledges that reality.
Has such an imposition ever actually occurred?objectionable haircuts are way less frequently the motive behind an assualt than race is. never seen mowhawks going all-out against crewcuts, but there is much history documenting racial violence and its effects on minority communities.
Not to trivialize your point, because I agree with you, but I must say mohawks and crewcuts fought all the time at my high school. It was a standard line of demarcation. Of course the haircuts signaled one's belonging to a particular culture, or so we all thought, so, it amounts to an animus that is similar to the kind of animus we've been talking about. Though obviously on a much sillier level.
@deva ...lol!!!
good points, well taken. yes, its on a sillier level. if i were in a life and death situation over my hair, i could change the style. but you can't go back to the barber and ask for a different race or gender or sexual orientation. you are not able to satisfy ppl who object to your genetic identity. that's where they have to yeild, because the dna isn't changing.
The part of hate crime legislation that is important, much more so than enhanced penalties is that it provides the federal government a way to step in on cases that are obviously hate crimes but where the local authorities share the same prejudices as those who committed the hate crime.
I agree with this, but (and there's a good chance I'm ignorant on the law here) if a crime isn't prosecuted because of nepotism or some other reason I would think the feds or someone else has the ability to step in already. though clearly clarifying or outlining specifics might still be necessary.
This is something I've struggled with for a long time. Most of my friends cannot understand why I'm uneasy with hate crime legislation. They find it hard to believe that someone who is Black doesn't think that someone should get a harsher sentence if they kill because the person is Black or part of any other protected group. I just don't like getting in to the business of harsher sentences based on motive rather than intent.
But I understand Rachel Maddow's point. And if the intent of the crime is truly to terrorize a community then my suggestion is that we charge two crimes. If it's a murder, then you charge the murder. And if there is evidence, beyond a reasonable doubt, that the intent of the murder was to terrorize a community, then charge them with... terrorism. Or maybe we'd need another word for the crime. Any suggestions?
How about "hate crime" ?
Perhaps the "Hate Crime" slants comes from, if someone engages in violence against someone else there could be normative (involuntary) reasons for that (steal a car catch a bat, break into my house you catch a bullet, etc) these are responses to actions (without pre-meditation) that can be universal regardless of race, gender, sexuality. However if the violent act exhibits an element of prejudicial thought on the aggressor, then it becomes more severe because a) it possibly throws into question the objective logic of aggressor's response to said situation (ex. if the car thief were not Black would a bat have been used?) and b) if prejudice, bias (sexism, racism, homophobia) are a part of the aggressive act is this a display, not of an aggressive act directed at an individual for a specific act in a specific moment, but of larger class (racial, gender, sexual) anatagonism which means such a person is a danger to people of that class generally, regardless of their behavior. In a sense the act carries pre-meditation in that the aggressor through their exhibition of bias has declared the possibility of extremis in their response. In this sense the aggressor of a hate crime could be described as a predator, if you will, waiting for prey to cross their path, a walking time bomb.
I believe that its not the hate crime bills that are the problem but the application of them. I thinkk you need hate crime laws to deter criminals from targeting people because of their race, sexual orientation, disability etc but the problem comes in when a police officer or a prosecutor applies those charges to people who didn't go out to target a member of a specific group of people but just ended up committing a crime and in the midst of doing so said or did something that expressed a disdain or hostility towards their membership in one of those groups. There is a major difference between a perp going out looking for a black person to beat up and a white guy and a black guy getting into a fight over something that has nothing to do with race and in the middle of the fight the white guy calling the black guy a nigger. People should be able to walk the streets knowing that someone isn't going to target them because of who they are. On the other hand people who commit crimes should be able to know that even if they are personally a racist or a bigot or whatever else we get to be in this country that is out of the mainstream they won't be over charged for the crime just to make headlines or to help someone's career. So I think the happy medium is instituting hate crime laws that put very specific guidlines on what qualifies as and can be prosecuted as a hate crime and what can't.
This seems quite reasonable to me. Misapplication often causes more harm than good and creates the impression that the very idea of a "hate crime" is bogus. When, as you've stated, there are very good reasons to treat crimes targeting someone based on identity differently than other kinds of crimes.
Do you have any examples of misapplication of hate crimes legislation? Do you know of any white guys who got in a fight with black guys over something non-race-related and then were charged with a hate crime because they let slip a racial slur? I honestly can't think of a single case of something like this happening. It really doesn't seem likely to be a big problem- definitely not as big a problem as, say, lynchings and beatings to deter blacks from registering to vote.
Well, the "Fat Nick" case could be an example, although it's not entirely clear cut.
I guess my point is that even if we could name a handful or even a dozen cases where a crime was incorrectly labeled a hate crime, that would pale in comparison to the number of cases of hate crimes that actually have taken place. How many people have been gay-bashed? How many people have been lynched? More than a dozen, that's for sure.
But the question is not whether or not people are gay bashed. Or otherwise beaten because of their race, creed, gender, or sexual identity. Of course this happens. And of course it's criminal. The question is whether or not it should be considered worse in the eyes of the state than other crimes in which intent and state of mind of the assailant are the same, but in which such prejudice or bigotry plays no role.
Further, it's a question of, even if we accept that we believe it does make it worse, whether somebody's bigotry can (or should) be essentially criminalized and be used by the state to justify the imposition harsher penalties.
We do not like bigots in this society. Nor should we. But we are forced to tolerate the bigotry of others as we may be forced to one day defend of our own freedoms against the tyranny of the state. We do not have to tolerate the violence of bigots, but we have to accept that their bigotry, though relevant to the crime is not an actionable offense on which to punish them.
The problem with not having hate crime laws is that sometimes you'll get juries that will nullify lynching verdicts, or the conviction will go through but the sentence is a slap on the wrist (probation for murder, etc). Having mandatory sentencing and federal jurisdiction helps to counter that.
Read about Vincent Chin. That's what happens when you don't have hate crime laws.
It seems to me that there is a good argument for a hate crimes law - but it involves acts that are not by themselves serious crimes. Burning a cross is not just a violation of the fire code. But it strikes me as odd that people cite the Shepard case as proof of the need for a hate crimes law. First degree murder is about as serious a crime as there is. The hypothetical question that always bothers me is: would it have been better if it turned out that the thugs murdered Shepard without prejudice, just because they felt like killing someone?
His mother explained it pretty well in the Rachel Maddow video TNC posted on the next thread. Yes, murder is always a crime. But it is not always fully investigated and prosecuted, based on the prejudices of the local law enforcement agency. If a gay person happens to live in a really homophobic place, or a black person happens to live in a place with really racist police, it's possible or maybe even likely that when they're victimized, their case won't receive much attention from the cops. So hate crimes legislation allows federal authorities to get involved. Sort of like sending in the National Guard when white police weren't willing to protect black schoolchildren integrating the school system.
Here's my question: If I burn a cross on a black man's lawn, is there a legal way to punish me, with sufficient severity, without hate crime laws?
If there is, then I'd say we don't need hate crimes legislation. If there isn't, then we probably do.
Like all legal questions, it's complicated. Here's a link to the wikipedia article on the leading supreme court case:
http://en.wikipedia.org/wiki/Virginia_v._Black
also, arson -- burning a cross on someone's lawn has great potential to spread to the house and burn out its residents, and that is probably the point in the first place. it's not as though cross burning is a purely symbolic gesture -- if that were so, why not just distribute offensive fliers in the community?
There is not just the charge of arson and trespassing. Even without a Hate Crime law you can make the obviouse case of threatening and intimidation.i am white but if I had a tree in my yard and a white guy tried to ' send me a message" by torching my tree, i would think that he could be charged with threatening.I do not claim to be a legal expert though.
Here's a provocative question I had about hate crimes--the kid who shot the other kid with the confederate flag shirt...could he be brought up on hate crime charges? He is violently reacting to a symbol he inteprets as driven by racial hatred, the violence itself being sort of a counter-hate hate...
Thoughts?
I think the problem with hate crimes, and what people are kind of groping at here, is the problem with defining what class of people are entitled to protection. Generally slippery slope arguments don't hold much water, but I do think this is a case where they should. Pretty much everybody agrees that, say, if the KKK lynches a black guy because he is black, it is a hate crime. But what about a rapist who attacks women because they are women? Or a mugger who mugs elderly people because they are elderly? How about a serial killer who targets blonds? All of these crimes single out members of a certain group, and cause members of those particular communities or groups to be more fearful than non-members. In a LOT of crimes, there is something about the identity of the victim that causes them to be targeted. It can rapidly turn into a mushy value judgment as to which types of identities are worth protecting and which aren't, which boils down to what groups have the political clout to have crimes against their members defined as hate crimes. This can lead to unequal sentences for crimes that are essentially identical in the level of "hate" involved, where one was committed against a member of a group that is politically powerful and one was committed against a member of a group that isn't.
But specific groups aren't protected, only types of groups. In other words hate crimes laws would apply if a white person were attacked for being white or if a strait man were attacked for being strait. The reason you don't see this much is because those kinds of crimes are pretty rare.
Right, but even what types of groups are entitled to protection is a political question, as well as how the law is enforced.
I think the enforcement problem is much bigger.
If someone targets old people, it is likely because they see them as less likely to defend themselves, not because they are biased against old people.
The same goes, in many instances, for women or children. On the other hand I think you could make a pretty good case that a lot of rapes *are* hate crimes.
But like I said, I think enforcing these things fairly could be really tricky. If anything that's what the "Fat Nick" case demonstrates.
But what if they DO do it because hate old people, and you can prove it in court? The way the laws are written, it still can't be charged as a hate crime. Is hating old people not as bad as hating black people? Does it somehow make it more OK that there are fewer people that hate old people than hate black people? As a lawyer, I can't see how there is any way to write these laws that doesn't either (a) result in politicized and inconsistent applications by courts and juries, or (b) wind up having crimes prosecuted as hate crimes which the public and the legislature didn't really intend to have prosecuted as such.
Indeed, but some political questions are rather obvious.
No one would argue that racial minorities or LGBT individual aren't at far far higher risk for hate crime.
Yes, but the types of groups that are protected have historically been discriminated against by law and through social constraints.
it used to be legal to discriminate against women, minorities, and lgbt people. it used to be legal to put lgbt ppl in jail for socializing together -- is there any wonder that some folks still want to punish them, vigilante-style, even though it's illegal now?
segregation is illegal today, but black folks still face violence for being in the wrong place at the wrong time.
women used to be their husband's property, in the eyes of the law, and today women are disproportionately the victims of domestic violence and rape.
there are real connections between historic legally sanctioned discrimination and current violence against minorities, women and lgbt people.
The problem is that although the clear intent of the laws are to protect groups who have been historically discriminated against from systematic targeting, for example, black people, women, gays, and members of religious minorities, the way they have to be written in order to be constitutional is, as Buskertype pointed out, to protect types of groups. So under the law, it's not only a hate crime to assault someone for being black, it's also a hate crime to assault someone for being, say, a straight white Christian. It's certainly not OK to assault someone for that reason, but is doing that REALLY worse than assaulting someone for being old, or for having red hair, which are NOT protected categories? You can leave it up to prosecutors and courts to go with their guts as to when something "really isn't supposed to be" a hate crime, even when it is defined as one under the statute. However, that just invites inconsistent and politicized enforcement. What happens when straight white Christians start demanding that crimes against them, committed on that basis, be prosecuted as hate crimes, since they are defined that way under the law? They can use cases like the "Fat Nick" case as precedent, so the logic would pretty much be that if you beat someone up in a bar, for whatever reason, and in the process call him a "Jesus freak" or the like, congrats, you're subject to the same mandatory sentencing as a member of the KKK. What about when the AARP starts demanding that age be a basis for hate crime prosecution? Again, in most cases, slippery slope arguments are not really valid, but this is a situation where it seems like a real possibility.
I don't see why this is any different from any other slippery slope argument. (and by the way, I don't think it's true that slippery slope arguments are invalid.)
Like cocolamala I thought your (Lee) initial comment had an ahistorical element in the second half that’s answered in the first. "Pretty much everybody agrees that, say, if the KKK…" Why does everybody agree re: the KKK? Because of the particular history of the United States, certain groups have been denied rights and have been the targets of violence in the past. This history (race, gender, religion, etc.) doesn’t transpose easily to other groups like blonds or old people.
"But what if they DO do it because hate old people, and you can prove it in court?" I don't see why the current list should be sacrosanct, in fact it seems incomplete for not including groups mentioned elsewhere in the discussion (sexual orientation, perceived gender, etc.). How about this formulation I’ve lifted from a Human Rights Watch report (here HRW is not making the proposition just discussing the state of international human rights law)
Practically speaking, I just think there're a lot more hate crime cases involving violence against people in categories that've been defined for quite some time.Lee-
if I may be blunt (and I mean no disrespect, because I have appreciated your arguments on this) it sounds as if you like this particular slippery slope argument because it gives you a result you like.
To me this particular argument is weak because the bottom of the slope does not look particularly menacing. Who cares if hate crimes against old people and redheads are included in the law? I have never heard of such a thing, and should it happen (and it was provable) I have no problem with it being prosecuted.
but is doing that REALLY worse than assaulting someone for being old, or for having red hair, which are NOT protected categories
there is not a case for other groups (the elderly, redheads) needing this protection as a group. however, there are laws that protect the elderly from abuse in contexts where it is likely (nursing homes, institutions). hate crimes laws also protect ppl from abuse in the context where it is likely (where state legal remedies fail because of widespread prejudice, where the remedy for vandalism does not account for the threat/intimidation factor of the crime)
cocolamala - I agree that the laws are written to protect people who have historically been discriminated against. But is that a good thing? It's individuals who are hurt by crimes - if a white straight man is beaten up, could you seriously say to him "oh well, your group wasn't discriminated against in the past, so your pain doesn't matter as much?"
There may be real connections between historic legally sanctioned discrimination and current violence, but how does that justify the law discriminating now? Aren't we trying to move to a society where everyone is valued by society independently of their race/gender/sexual orientation? We may want to put extra effort into prosecuting some crimes in order to change social expectations, but I don't see the case for introducing a new class of laws.
My biggest issue with "hate crime" legislation is proving intent -- how do you know that they are acting based on a racial motive?
Does uttering a slur really prove anything? If someone's in a fight, they're not really thinking clearly and are probably going to say whatever they think is most hurtful, up to and including racial slurs. But does that constitute it being a hate crime? In my book, it's entirely insufficient.
That's a question for the jury, which would have to consider the slur together with any other evidence of intent. Not sure why this is different from when a jury has to figure out whether a driver killed a pedestrian on purpose (and convict for murder) or by accident (and convict for manslaughter).
There's a pretty big difference. I think Chris' point would be better stated at saying that it's not about proving intent, but is instead about proving the motive behind the intent.
It's one thing to prove that this guy meant to kill this gay guy.
It's another thing to prove that this guy hates gay people.
It's another entirely to prove that this guy meant to kill this gay guy because he hates gay people.
That's like three different things you have to prove beyond reasonable doubt. One of them isn't a crime.
I see absolutely no difference between Chris' point and nomenclaturist's reply to it. Either way, it is still a matter of understanding the thought-process of the accused, which courts and juries have been grappling with for centuries.
Our criminal justice system has always recognized the reality that motives are important; for instance, that's why, as nomenclaturist pointed out, we have so many different classes of homicide. And the difficulties of demonstrating both motive and intent are familiar ground in courts of law.
@Shade Tail
As I've argued already, I do not argue that motive is irrelevant; just not criminal. The different classes of murder are not to differentiate between motive, but intent. Motive is most certainly relavent to helping to determine the state of mind and level of intent, but it is not determative with regard to the classification (in terms of degrees) of the crime itself.
As for whether or not nomenclaturist post directly addresses Chris's point. Literally, this is true. The problem with the phrasing of Chris' question (as I saw it) was its conflation of intent with motive (which seems to be a popular misconception in this thread).
I read Chris to be wondering not about intent, but how one goes about proving motive, since one could most certainly hate say, Muslims, and attack a Muslim for an entirely unrelated reason (or no reason at all). Even if they use some kind of epithet during the attack, how do you go about determining motive beyond reasonable doubt?
As for nomenclaturist's driving analogy, it spoke only to intent. "Did I mean to do it or didn't I?" It's true, that's actionable, but why you meant to do it (i.e. your motive) is not.
There is sort of a parallel situation with the RICO (Racketeer Influenced and Corrupt Organization) laws.
Basically RICO made it easier to prosecute gangsters for being gangsters, specifically for being members of an organization that has committed certain types of crimes.
Arguably this is a violation of the freedom of association, but the law has never been overturned, and it has made it a lot more difficult for organized crime to operate in this country, which is unquestionably a positive outcome.
The civil libertarian in me is dubious of both laws, but it's hard to argue with the real world results.
I missed this post. My thoughts exactly.
Most people look at this from the individual level. RICO and hate crimes are basically governmental policies. To use federal law enforcement where local law enforcement fails to prevent or is complicit in committing crime.
In other words, a safeguard against the tyranny of the majority (in powerful positions). I think the majority of "hate" crimes are dealt with from within the local system.
For the record, Matthew Shepard was killed in Laramie, Wyoming, not Montana.
I don't have particularly insightful analysis to offer, but I would say that in the context of this discussion people should be absolutely precise and clear about whether they are discussing actually implemented legislation and at what level and/or "hate crimes legislation" in some abstract way because a great deal of confusion hinges on this point.
"It strikes me as weird that the mere utterance of a racial slur during a violent act automatically makes it worse."
How about the utterance of "I've been waiting to do this for a long time"? Would that make it worse? I think we have a long history in our judicial system of accounting for intent when determining the severity of a criminal act. (1st/2nd degree murder, "spur of the moment", etc.)
If you were a member of the KKK 50 years ago, and you happened to lynch a black man, you probably should not be able to get away with the defense that it was a "spur of the moment" thing. I think hate-crime laws touch upon the same core issues of premeditation. (what can be more premeditated than a life-long desire for the extermination of a group of people?)
But motive does not equal intent. The state uses motive as a way to gauge or even prove intent; premeditation too, is a way of measuring intent.
The argument against hate crime laws does not hinge upon the notion that motive is irrelevant to the crime. It hinges on the notion that the motive itself is not the crime. Hate crime law is an attempt to literally criminalize thoughts. Horrible, vicious thoughts that in some way, theoretically, contributed to a violent crime. But thoughts, nonetheless.
I mean, with torture being so prominent in recent debate and with progressives everywhere quite rightly breaking out their old dog-eared copies of 1984, you'd think one of you would have stumbled across the term "Thoughtcrime."
It includes prejudiced motives as an aggravating factor to previously establish crimes.
That's not criminalizing thought it's removing a bit of judicial discretion as it relates to blameworthiness of the offender.
It's the same reason an unrepentant killer might get a harsher sentence.
That's not criminalizing callousness it's acknowledging it's effect on criminality.
The idea that this is somehow dictatorial is ridiculous.
I can understand the objection on a number of Constitutional or ethical grounds, but 1984?
That toes the line of comedy.
Precisely what aggravating factors do is criminalize something other than the act. This act is worse because you did it in front of a child. This act is worse because show no remorse. The state is saying the doing of the act in front of a child is more criminal. The state is saying the performance of the act with a lack of remorse is more criminal.
Just as with mitigating factors, the act becomes less criminal.
Yes, I know the argument you'd likely make is that this isn't about whether it is more or less criminal, but more or less serious or horrific. I think it's a question of semantics at that point.
I agree that crimes committed in the name or shadow of bigotry are an assault on our sensibilities as a nation. But they are not any more or less an assault on the state than those committed with equal malice and reckless disregard, but with less bigotry. They are no more or less criminal. The very notion of this would suggest that we've become too desensitized to horrific crime. That we're no longer sufficiently offended by senseless violence.
First time poster, thanks for the interesting question.
I have personally never found hate crimes to be difficult to accept. My equation for the hate crime is a crime committed with the intent to scare an entire class of people. It is a form of terrorism, and I don't mean that rhetorically. Because it intentionally causes an extra layer of harm to society, society is justified in handing out extra punishment.
Like too much about the criminal justice system, though, prosecutorial discretion really makes this a hard sell. Mistakes are made, grays are treated as blacks or whites, and politics will often win out over criminal jurisprudence. However, hate crimes are not unique in these problems. Truly, every day prosecutors make choices between misdemeanor or felony, sex crime or basic assault, death penalty case or life in prison. They bring in their biases, their politics, their boss's politics, etc. to these life altering decisions. The fact that it is often applied poorly, and the lines aren't always clear, is really a complaint for the whole system, not hate crimes by themselves.
That said, I do not pretend that every office has adopted my definition and justification for a hate crime. As several posters have noted, there are plenty of examples of poorly charged hate crimes, where the motive was tenuous at best, and the class-harm was negligible at most. The motivation of the prosecutor too often is to charge as high as possible, particularly once an interest group is alerted and is paying attention.
I therefore think the real question is if we think the benefit of punishing class-targeted terrorism outweighs the built in problems of prosecutorial discretion.
Haven't read the other comments yet. There are some laws that are good in the abstract but bad in reality and vice versa. For instance, I am rather against banning smoking in all public places becuase it smacks of prohibition (I think there should be "smoking licenses" like there are liquor licences for public venues) but in reality, I love being able to go out of an evening and continue to breathe, and be able to bring my evening clothes indoors without airing them out on the porch first.
Someone once wrote " But most racism—indeed, the worst racism—is quaint and banal." (THC over at Slate)
And this, for me, is what hate crime laws fight. The often ignorant or systemic overlooking of minority rights to justice. Without adding additional sentencing, it lack any tooth to give it visibility which to my mind is the whole point. As a populace, we have a lot of unconscious behaviors, one of which is overlooking just how often minorities do not prevail in the justice system. Hate Crimes laws allow that there is unconscious bias that can only be ousted by conscious review, and require that conscious review.
In many examples, the implementation of some laws designed to level the playing field swing to far in the other direction. But whenever something is new and still being sorted in the minds of the populace, there will be wild swings and it's up to us to say "ok, we didn't get that as right as we could have the first time, but it's still fixable" rather than saying "well, we tried that and it was a total failure because 10% of the time it went rather awry." Continuous improvement is what I'd like to see. And the fact that we still need more visibility for the injustice served to minorities at the hands of the justice system is why hate crimes laws are still appropriate, to my mind.
Don;t we take motive into account in how we define murder already? It seems to me that hate crimes are just applying motive as a factor in sentencing.
For example if a guy comes home and catches his best friend and his wife in bed and kills them he is guilty of murder but the emotional state is taking into account. Basically he isn't a threat to general society, he isn't likely to repeat his crime so something like 20 years with the possibility of parole is reasonable. If a guy kills someone because they're black he is a threat all black people and life without parole seems correct.
As mentioned somewhere above, 1st-degree murder is not a good context to discuss this in, because the legal punishment can't really be made worse by the fact that the murder is a hate crime. It usually (and should) carry the maximum punishment available in the jurisdiction, regardless of motive.
But when you talk about lesser acts, it matters. If an arsonist sets fire to your house, it sucks for you, and surely the people in the neighborhood will be scared, until that person is caught. If someone burns a cross on your lawn, not only is there the danger of physical harm to person and property, but also the very act is a threat of additional harm. It will make everyone of your same type scared to live in that place.
Just based on arson (I'm not a lawyer, so please correct me if I'm wrong), I'm guessing burning someone's yard is not as bad, under the law, as actually succeeding in burning down their house. In that case, the Klan burning a cross on a lawn to drive people out of a neighborhood/town/state is not as "bad" as some possibly deranged individual burning down an individual's house.
If the law is at all supposed to address societal impacts, it seems we need some sort of hate crime law to address the specific far-reaching effects of acts like cross burning. But I'm no expert, and am happy for clarification/correction.
Maybe the problem is calling it "hate crime" rather than domestic terrorism.
One thing about the Sheppard case was, that i remember some of the defendants claimed that homosexuality was not the issue and they were just trying to rob him. I think that they were full of crap, and had both robbery and homophobia on their mind.
But it does raise the issue that if hate crime laws are passed ,that countless hours in court will be spent argueing about "intent" .This happens enough already. I also hate to see racists get a chance to pose as first ammendment "martyrs".
As i said before 2 of the 3 defendants got the death penalty[ deservedly so] . The third got life because unfortantly the state could only prove kidnapping in his case. I fail to see how they could have been punished more , if there had been a hate crime law in effect at the time.
I am sorry .the men that got the death penalty were the murderers in the BYRD case in Texas.It's a sleepy ,rainy day in Baltimore today.Once again my apologies
By the way .this is off topic ,but i read many blogs, and the comments sections are usally filled with name calling, and intolerance on all sides.
Just for the record i have read this blog and the comments ,since Mr Coates's joined the Atlantic,but i have never commented before yesterday. For all of you who are long time commenters, i appreciate the fact that you have managed to keep the converations civil.
Sadly that is rare on many blogs. Thanks to MR coates, for writtting this blog. As i said this is off topic but i have wanted to write this for some time. thank you
There are two reasons to send a person to prison:
1) To deter others from committing that act
2) To protect a community from dangerous individuals
A person who commits a violent crime due to "hate", poses a greater threat to society.
Personally, I think punishing (and eventually, theoretically, reabilitating) a criminal is a pretty solid reason.
I agree that should be the goal of the criminal justice system. I disagree that is an argument to send anyone to prison.
This is why I don't support sending drug abusers to prison...they can be rehabilitated else where more efficiently and effectively.
When a dangerous individual is sent to prison, there should be an attempt to rehabilitate. But the point is that they are there because of the threat they pose to society.
...And personally I just don't agree with the punishing point of you.
I believe we should punish to deter, but not out of revenge.
Then what's the purpose of the death penalty, or sentences of life without parole? Theoretically, all people have at least some redeeming qualities. I don't think it'd be difficult to imagine the possibility that all criminals, no matter how terrible their crimes, could be rehabilitated to the point at which, many years down the line, they would no longer pose a danger to society. So why do we hand down sentences that make rehabilitation moot?
The answer, no matter how much people want it to be otherwise, is that the punishment is meant to fit the crime. With victimless crimes, I agree that deterrence and rehabilitation are the key motivating factors as to how we sentence them. But when there's a clear victim (as with cases of theft or violent crime), the state is also duty-bound to seek justice on behalf of the party that's been harmed.
I don't support the death penalty in any instance...precisely for the reasons I have stated.
It may be "fitting" for someone who commits murder, but it does nothing to advance or protect our society.
The only defense of the death penalty is, 'eye for an eye' justice, as you are arguing for to a degree. I don't see believe that should be a factor.
I'm on the intimidation-of-a-community side. And I would say what makes it a hate crime is not the intent. What a hate crime is, and what the law should forbid, is violence or intimidation that would make a reasonable member of the targeted community fear to exercise her full rights. It is intimidation designed to keep people out of a community, to keep them from certain public places, to keep them from speaking or publishing or voting.
Breaking the window of every Jewish-owned store on the street is not just vandalism. It is an attempt to drive Jewish store owners from the community. Ergo, hate crime.
If a bunch of palookas in Boston attack a group of Latin American immigrants for playing soccer on what the palookas consider "their" field in "their" neighborhood, that is a hate crime rather than simple assault or battery. Because it's designed to frighten other Latin Americans away from the neighborhood and the field.
What makes Matthew Shephard's death a hate crime isn't the homophobia of his murderers. It's that they left his body to be found in public, as an example. (Who kills someone, or beats him and leaves him for dead, and leaves the body in plain sight if it's just a robbery?) Shephard was left tied to that post as an example to others: this is what happens if you come out of the closet in Laramie.
What, arguably, makes TC's Fat Nick into a mere hooligan rather than a hate criminal is the focus on robbery. "Don't come to Lindenwood to steal" is something very different, when directed at a thief, than "Don't come to Lindenwood."
The Man on hate crimes stuff is the reporter David Neiwert who blogs at Orcinus. He wrote a story of why law enforcement does its job better when these enhancements exist called Death on the Fourth of July which teases out a lot of issues. Highly recommended.
I want to double the rec for Orcinus.
I also want to emphasize that (in the US at least) "Hate crime" is not at all the same thing as "hate speech". A hate crime is something *that is already a crime*, but which deserves extra penalties (and investigation) because it is community-directed terrorism.
..and at risk of talking far too much.
Lee:
They can and do, anti-white, anti-Christians hate crimes are prosecuted as such every year.
There are just far fewer, here are the latest stats:
FBI Link
Same reason we have separate offenses for terrorism rather than just applying destruction of property or murder.
Those crimes, like hate crimes, harm a whole community of people not just the immediate victim.
When white racists in NY are attacking Latinos because they are Latino they hurt all the Latinos not just the ones that get attacked.
It's a aggravating factor in the crime and should result in an enhanced sentence.
Risking a comment before I finish the whole thread. I've got no problem with hate crime laws so long as the justice system can prove that the perpetrator who will suffer enhanced punishment actually did have hate (of race, gender, orientation, etc.) as a motivation for the crime committed. I don't know that the use of a single epithet during the commission of the crime is enough. A continual stream of bigoted invective probably is. But where's the line? What if the perp just has a limited vocabulary and couldn't come up with any other words to express his anger (warranted or unwarranted) (assuming an assault scenario). Does a guy do an extra 3 years (or whatever) because he used a ant-gay slur instead of saying motherfrakker when he doesn't even know his victim is, in fact, gay?
/ramble
Legally it doesn't matter what the attacker says, per se, only the motivation. So if someone were to beat you up while spewing racial epithets, but it turns out he was hired to do so because of a gambling debt, I don't think that would qualify.
Chris Carollo asked something similar above and got some answers. I agree with nomenclaturist, who said that then we would rely on the jury to sort that out, the same as we would rely on them to decide facts regarding any other case.
The bottom line (to me) is this -- if a local or state police agency doesn't have the resources to fully investigate/prosecute a crime then the Feds can step in to help. What's wrong with that? The top two hate crimes that everyone mentions (Shephard & Byrd) happened in small towns. What's wrong with giving the folks there a little federal help to get to the bottom of a crime and punish those responsible? If the local authorities think they have a hate crime on their hands they should avail themselves of whatever help is out there to solve it. These crimes make their communities look like horrible, intolerant places so you would think that everyone (including raging bigots like Foxx) would want to see more resources given to them to quickly deal with any type of crime, but especially ones that will lead off the nightly news for weeks like hate crimes.
The value of this weblog is that a hot ticket item such as this can be debated and considered in a civilized fashion, so that people can take in an opposing point of view and be enlarged therefrom. I tend to be with those who would go for hate crime legislation, but after rolling all these comments around in my head, I tend to see more clearly from where my personal bias on the issue derives--the historic situation for Jews perhaps not so much in this country but certainly in others.
More importantly, I understand better how the thorny issue of intent as well as defining who--what "classes" of people--are to be regarded as legitimately vulnerable to such crime present problems in creating effective, just legislation and enforcement.
TN has a terrific crew posting here. Thanks for the civilization.
Motives and circumstances matter. Our criminal justice system has always acknowledged this. That's why, for example, we don't have just one crime of homicide. The details differ from state to state, but it generally goes from first-degree murder (with or without special circumstances) all the way down to third-degree manslaughter. The only difference between all these types of killing is the motive of the accused.
Hate of a particular group is just another motive, and therefore our courts can deal with it. And when hate comes into play, it demonstrably makes the crime worse. Hate crimes are generally more violent and threatening, and they also have a chilling effect on the target's entire community rather than just the target alone. They are a form of *terrorism*.
Therefore, it is fully appropriate to have laws against this.
Now, can hate crime laws be abused or misapplied? Of course they can; Mr. Coates' example of the Fat Nick story shows that. But that's an argument against *all* criminal law, because any criminal law can be used that way. Laws against murder have been misused against innocent people. Does that mean laws against murder should be struck from the books? I would say no.
Another objection you hear from some people is about special protected classes. They'll complain, for instance, that the law protects black people but not white people. The law that just passed in the House clearly does not do this. A hate crime is any crime committed on the basis of race, religion, gender, and a few other categories. Well, everyone has a race, a gender, a creed (even if, like me, the creed is "nothing"), and so forth. So white people, men, christians, etc. would be equally protected under this law.
Are there any other points I missed?
Now, can hate crime laws be abused or misapplied? Of course they can; Mr. Coates' example of the Fat Nick story shows that. But that's an argument against *all* criminal law, because any criminal law can be used that way.
He's not suggesting that law in general can be abused; rather, he's suggesting that this particular law may be abused easily, and may even invite abuse.
Yes, I realize that's what he is suggesting. And my reply to that is, that same argument can be made against any criminal law.
"...from first-degree murder (with or without special circumstances) all the way down to third-degree manslaughter. The only difference between all these types of killing is the motive of the accused."
This is wholely and demonstrably untrue. The difference is the INTENT and state of mind of the accused. Motive can be a very effective tool at determining the level of intent, but it is not not not what separates first second and third degree murder. Nor is motive what separates murder from manslaughter.
"Now, can hate crime laws be abused or misapplied? Of course they can; Mr. Coates' example of the Fat Nick story shows that. But that's an argument against *all* criminal law, because any criminal law can be used that way. Laws against murder have been misused against innocent people. Does that mean laws against murder should be struck from the books? I would say no."
The question is not whether hate crimes, which essentially criminalize thoughts of which the state does not approve, can be misapplied. The question is whether or not they can ever be properly applied. This is not analogous to regular criminal law. The whole point of your argument is to say that regular criminal law in cases of violent crimes is insufficient. Pardon me if I'm not convinced. You yourself admit that some states have up to six classifications for the unlawful taking of a human life. There are also different degrees of violent crimes that go from misdemeanor to Class A felony. Call me crazy, but I think we can fit all hate crimes into the compartments our laws already provide. And the benefit of that is not dropping into the realm of a dystopic state of crimethink.
As to the law including everyone, great! Now everyone can enjoy the protection of a law that robs them of their civil liberties!
That's a point I think you missed, by the way: Hate crime is criminialization of thought. It's as simple as that. Hate crime proponents are arguing that a thought (not an intention, mind you) when accompanied by a crime makes the crime worse than had the thought not been present. The thought itself, according to you, is punishable.
For those people looking for a slippery slope, that's where you find it. In your own head.
"This is wholely and demonstrably untrue. The difference is the INTENT and state of mind of the accused. Motive can be a very effective tool at determining the level of intent, but it is not not not what separates first second and third degree murder. Nor is motive what separates murder from manslaughter."
And? You are splitting hairs to try to claim that the accused's state of mind at the time should be inadmissible.
"The question is not whether hate crimes...can be misapplied."
Yes it is.
"which essentially criminalize thoughts of which the state does not approve"
Blatant misrepresentation of the law by way of over-emotionalized nonsense.
"The question is whether or not they can ever be properly applied."
No it isn't. Sorry, but you will not be allowed to change the subject.
"Hate crime is criminialization of thought."
Utterly false. Hate crime is an added classification on actual crimes, not criminalization of the thought itself. And, whether you like it or not, the accused's state of mind is important. You can try to split hairs and misrepresent the facts all you want, but that is the truth.
"For those people looking for a slippery slope, that's where you find it. In your own head."
The one part of your post I agree with: your slippery slope is completely imaginary.
It's not splitting hairs to say that there's a difference between motive and intent. There is a difference. You literally said the only difference between manslaughter and murder 1 is motive. This is hogwash. If you can only agree with me on one thing, agree with me on that.
There's also a difference between motive and state of mind. I have not said that state of mind should be inadmissible. In fact, the opposite is true. I have repeatedly said that state of mind AND MOTIVE are admissible as they help to establish intent. The question is not whether or not these things should be considered relevant. THEY ARE. The question is whether or not motive should be considered a actionable.
The fact that you can sit here and argue in favor of hate crime law and accuse me of being overly emotional is not without a little bit of irony.
Again, I have not argued that state of mind is unimportant. I wish you could make your way away from this straw man. Neither have I argued that motive is unimportant. I have argued that motive is not, historically an actionable offense. At any rate, bigotry is not really a state of mind. It's a belief system. The government is more than welcome to try and vilify the criminal by focusing on how his belief system was a motivating factor in the crime, but it's absurd to make this part of the crime itself.
You're arguing that, if a bigot commits a bigoted crime, they should be held to account for their bigotry. But it's not illegal to be a bigot. Yet.
"which essentially criminalize thoughts of which the state does not approve"
I used to think this was a problem with hate-crime laws, but after reading this thread and mulling it over, I disagree. It seems to me that the law already criminalizes thoughts of which it does not approve when they accompany or motivate a crime. If a person has the thought "I think this dude deserves to die" and then acts on it, they'll be punished more than if they think "I'm totally okay to drive" when they're drunk and kill someone because of it. And someone who kills someone else accidentally may get no punishment at all, depending on the circumstances. Likewise, if a financial salesman sells shaky investments to someone while fully believing that they're a good deal, they are dealt with differently than someone who's thinking "they'll never catch me". The huckster who bottles up river water and sells it for $20 a shot saying it will cure your diverticulitis is doing something worse than the homeopath who dilutes something so much that it becomes no different than water. Neither of the cures will help, but the homeopath thinks (however foolishly) that they will, and the huckster just thinks he can make a quick buck.
So it seems to me hate crime legislation adds "queers should be run out of town" "a nigger's life ain't worth much" and so on to the list of thoughts like "I have the right to kill this fucker" "suckers deserve what they get" "only little people pay taxes" and so on, that make a crime one that is more pernicious. Note: it is perfectly legal to think all of those thoughts, and say them, and advocate them. It's just not legal to act on them.
So, I reject the criminalizing thought argument. Some thoughts make the crime associated with them more pernicious and that has always been true, and I think it's fine for us to rearrange, add to, and subtract from that set of thoughts.
Again, we're confusing intent with motive. "I think this dude deserves to die," when accompanied by an act is a sign of intent not of motive (i.e. you're not being charged for why you think somebody should die). "I think I'm okay to drive" is an expression of lack of intent, but also one of reckless disregard. Again, we're not arguing about whether or not state of mind or even motive are relevant. I fully agree that both are very relevant.
Yes, there is such a thing in law as mitigating circumstances, even justifiable homicide. Obviously there are any number of factors taken into account when we decide how or whether to charge somebody. But, as it has already been established elsewhere in the thread, we have six or seven different classifications for the unlawful taking of a human life. They cover everything from vehicular homicide to the most horrific crimes of our society. In the instance of hate crime, we've decided the old classifications (which include, among others, child murderers) are simply not enough. Why? Because we don't like bigots. Well, it's admirable that we don't like bigots.
Your homeopath/huckster analogy is just another instant of mistaking motive for intent. The intent of the homeopath is to help. The intent of the huckster is to swindle. Of course we treat them differently.
'I have the right to kill this fucker' - This, again, is a worldview that goes toward proving the existance of the intent to commit a crime. Again, it's the intent, not the worldview that is a punishable.
'Suckers deserve what they get' - See above.
'Only little people pay taxes" See above.
"Note: it is perfectly legal to think all of those thoughts, and say them, and advocate them. It's just not legal to act on them."
You're right. It's not legal to act on them. The act is the crime. The act is what we charge people for. We determine how to charge them based on their level of intent. We may be able to use their bigotry or worldview to establish the level of intent (which I think is completely appropriate!), but we do not say that because they're a bigot, their intent is worse than the that of somebody who commits an identical crime with the same malice, the same desire to do harm or kill, but who does not do it out of bigotry.
Everybody wants to make an argument in favor of why it's worse to kill somebody because you're a bigot than it is to accidentally hit them with your car. Why is it that everybody wants to compare apples and oranges? Could we start comparing apples to apples?
To reply to BreakerBaker below:
Hmmm. The distinction between motive and intent seems like a distraction to me, because "Obviously there are any number of factors taken into account when we decide how or whether to charge somebody. " and whether we call it motive or intent doesn't feel crucial to me- but I'm not a lawyer.
I think I see your point. But it strikes me that there is a difference, valid to make law about, between... let's say, burning an effigy of Bread & Roses on her lawn, and burning a cross on Bread and Roses's lawn. The intent of the effigy of me is to intimidate and terrorize me. The intent of the burning cross is to intimidate and terrorize me and others who have been traditionally targeted by that symbol. The cross has added malicious intent, and that's why I'd call it a hate crime and add on extra punishment. Obviously the effigy is motivated by hate, too; but it's not as harmful to society as a whole.
Hanging Matthew Shepard on a fence, rather than hiding the body, seems like the relevant indication of intent- intent to intimidate others. I can imagine the same malicious intent showing in a crime where someone was killed for being a snitch and their body displayed. The intent there is to terrorize people who talk to authorities. I think that's pretty much equally as bad as terrorizing for the sake of bigotry, I'm just not sure how to write it into law.
Perhaps the law would be more purely fair if it added the punishment and jusrisdiction for crimes committed with the intent to intimidate, terrorize, or surpress other people or other groups, whether that was based on their race, gender, cooperating with authorities, dealing crack, or wearing funny clothes status. (or anything else, obviously). Like blackmail is criminal regardless of what you're trying to manipulate your victim with- different people have different secrets.
But also the thing that makes what we call "hate crimes" bad, in my mind (over and above their criminality) has to do with the power differential between the criminal and the victim. If the intent of the criminal is to terrorize the victim, but the victim isn't scared, what then?
I think I'm out of my depth in the legal and philosophical weeds here and I have to turn around- but thanks for the trip.
Personally, I don't like the idea that people who are not direct victims of a crime can go out and claim victimhood. Nor do I like the idea of holding a single person accountable for the greater ills of our society simply because their crime carried sufficient symbolic weight (I'm not sure I see a difference of intent between your effigy/cross analogy, I think both would probably end up qualifying as hate crime, assuming the perp fit the bill).
As to the Matthew Shepard case, do you honestly think it wouldn't have been a hate crime had he not been strung to a fence? I don't even like to talk about the real cases because it makes me feel as if people think I lack empathy. I have absolute sympathy and feeling for Matthew, his family, and all who've been touched by his death. In the case of Matthew Shepard, I suppose there are two crimes that could be punishable by hate crime law: The murder and the subsequent mutilation, but I think the victim in both instances is still Matthew. Which is not to say that people do not feel victimized, I just don't know at what point we determine faithfully that we should be punishing the assailant for the indirect pain he's caused. We may bring grieving family to the stand, but they are to speak in place of the deceased. The state does not seek to avenge on behalf of their grief. The state seeks justice on behalf of the victim, not his family.
But I think I've effectively veered too far from the topic at hand. I'm not legal expert either. I think the arguments in favor of hate crime law can be very compelling because the law seems to be written for good and noble reasons. To speak out against it, is to align oneself with some very horrible people. It's sort of like the Patriot Act in that way. We all know how that turned out.
That's a very dangerous argument since you are explicitly allowing for, and even advocating, double jeopardy - trying a person multiple times for the same crime. We try you at the state level and if that doesn't work, we'll let the Feds take a shot at you. I'm not willing to throw out a basic constitutional protection just to get a few more convictions that I might like.
Jim, what you describe is not double jeopardy. States and the Federal Government have concurrent jurisdiction over criminal matters. Witness the Michael Vick case, for example. It's not double jeopardy to be tried under both State and Federal law for the same action.
You are describing a Constitutional protection that you simply do not enjoy.
For a moment, forget the Constitutional/philosophical/ideological arguments, and check out the state-by-state numbers on the FBI hate-crime statistics page.
http://www.fbi.gov/ucr/hc2007/table_11.htm
Out of 9,006 nationwide hate crimes reported, three Deep South States (Georgia, Alabama, Mississippi) had a combined 20. Mississippi reported 0. No hate crimes in Mississippi, no siree...
It's numbers like these that illustrate that while most of the states seem to be of a fairly reasonable mind regarding how to deal with these issues and how to prosecute them fairly with their own tools, the very states that you would expect to be problematic are, in fact, quite problematic.
These are stunning numbers. There can't possibly be 0 hate crimes in Mississippi, and 9,006 in the rest of the nation.
Thanks Alesis for that link and to TNC for quite the interesting post. I agree that hate-crimes bills can be employed excessively. That's not quite my fear given the real context.
So, why weren't the murderers of Channon Christian & Christopher Newsome charged with hate crimes? So black on white rape/torture/murder isn't a hate crime?
Don't make this a quasi-Affirmative Action argument. You can make the argument that hate is in every crime, but don't make into an implication that the law is racist. It's simply not all inclusive, which probably calls its constitutionality into question, but this would be cleared up through the courts, and the protection would inevitably far beyond the initial intent of the authors of the law (which was my meaning when I've addressed the notion of plausibly hated groups that would likely gain protection under future forms of the law, the Klan would be a likely and ironic example of a group who would be entitled to future protection under hate crimes law).
But the weakest argument out there is to say 'We're not included in this law, so it's unfair.' It may be true, but there are ways around that. Would you be happy if you were included? Personally, I think it's a law that threatens to rob us of our civil liberties, so I consider protection under such a law to be a dubious state of being.
What is your fear given the 'real context'? If not excessive enforcement, then what exactly? Lax enforcement? Of new laws or those already on the books?
I mean, it's already been implied by several people here that two otherwise identical crimes should not be treated equally if one of the assailants was motivated (in part) out of some sort of prejudice against the victim's race, gender, orientation....
So far, I've yet to see a clear argument as to why this sort of crime should not be covered under the already existant criminal code which forbids but recognizes many different degrees of assault, theft, the taking of life, etc. We can argue all day as to why we think one thing is or is not inherently worse than the other. This is a tripping point in the debate. I say everything is terrible. Others say everything is terrible, but THIS, this is really bad. I recognize that there are times in which crimes seem particularly horrific, but our existing laws cover those instances too. My question is why you think they shouldn't be able to handle this.
If it's really just a question of the federal government ensuring that existing laws are enforced, then there should be no need to muddy the waters with the supposed motive of the accused, why not just say that the federal government has the right to claim jurisdiction over any and all violent crimes when it suspects local authorities are not willing or able to do the job of enforcing existing laws properly?
The answer to that is not simply a states rights issue. It's that we have decided to write laws that target racists, misogynists and homophobes. We don't like their worldview, so we're writing laws designed to punish them more for having it. That is, to put it simply, tyranny.
Sure, it's a tyranny that targets bad people, but once you go down the road of persecuting people for their worldview, what's to stop people from coming after you someday? Honestly, what?
"Tyrannical"?
Once again that overstates the case.
Ethical judgments are and have been a key element of law.
We don't like the worldview of pederasts either but so long as they do not incite crimes we tolerate it.
..when they commit the crime of sexual abuse however, they are punished, harshly.
It matters how and why a crime is committed.
It matters if children are affected vs adults, it matters if the perpetrator is remorseless and it matters if a marginalized community is terrorized.
All Hate Crimes Law does is mandate aggravated sentencing and jurisdictional change.
It takes away from judicial discretion a little like three strike laws.
I can see why people might be uncomfortable with that.
..but this is far from Orwellian and the issue deserves to be discussed with sobriety.
"It matters if children are affected vs adults, it matters if the perpetrator is remorseless and it matters if a marginalized community is terrorized."
But really this isn't about a marginalized community being terrorized. The community can feel terror whether there's an element of bigotry in the crime or not.
Essentially, what these laws are designed to do is to tell these communities 'You matter in the eyes of the state.' Which is a wonderful sentiment. We should make an effort at getting this point across to everyone. Bigots included.
A racist could kill a black guy or a homophobe a homosexual, the community could be terrorized, but unless the crime is motivated by the bigotry, it's technically not a hate crime (regardless of whether or not the community is upset).
Again, your examples run away from the point. A pederast is not held to account for his world view. No matter how unsettling that worldview is. He's being held to account for his crime. The nature of the crime is informed through an understanding of his worldview, his state of mind, etc., but the worldview is not the crime. The action is.
Please come up with an example in which you're actually comparing similar crimes. Invision an example of similar criminals, similar victims. Similar intent and malice of forethought. Similar resulting reaction within the community. Explain why one of these crimes should be considered worse than the other.
One could of course come up with all kinds of exceptions but in the real world that much is clear and has been for hundred of years.
It's why hate crimes were typically committed.
He certainly is if it takes away from his remorse and threatens the community with other criminals of like mind.It's a classic example of how motive has always been taken into account at sentencing as are hate crime.
All such aggravating factors are values judgments but they are not at all unusual or counter to our principles of justice.
Bribery, those "Saturday-Night special" laws against possessing a weapons with intent to harm, and treason.
I can't believe it took that long to think of (look up) crimes based on motive.
Meh, I don't think that'll be on the LSAT :P
Actually my original example of Obstruction of Justice was on the money too.
From the link I posted way up top on Motive and Criminal Justice
"He certainly is if it takes away from his remorse and threatens the community with other criminals of like mind. It's a classic example of how motive has always been taken into account at sentencing as are hate crime."
Sentencing occurs after a verdict is handed down. But with hate crime, part of the crime itself is the bias. Nobody's saying that motive should be considered irrelevant during trial and sentencing proceedings. I'm saying that ones worldview should not be included as part of the indictment against them. Which, by definition, is what hate crime legislation does.
And I don't know why it took me so long to make this point more clearly. It's not about whether or not the state should consider worldview when determining how to charge the accused. It's about whether or not bias should be written into the indictment. The bias or the motive which relates to bias, in how it relates to intent is certainly a relevant factor in determining whether somebody is charged with third degree manslaughter vs. first degree murder (or whatever). It can further be considered during sentencing as an aggravating factor.
If this were all that hate crime did, I would raise any argument against it. But this, again, is not what hate crime law does. Hate crime law takes these considerations a step further. It creates a new classification of crime in which bias is not simply relevant to the indictment, but is literally part of the indictment.
So again, to the example of the pederast, the crime is child rape or sexual abuse. The crime is not child-rape-or-sexual-abuse-because-the-suspect-is-attracted-to-young-boys-and-sees-no-problem-with-pursuing-this-attraction. In the case of pederasty, I don't know how much good remorse is going to do the suspect in the end, but let's just accept the idea that lack of remorse would be considered a justification for harsher sentencing. I'm fine with that. I'm fine with that with hate crime scenarios, also. I'm more than fine with it. I think it is completely appropriate.
I just don't want worldview written into indictments. I want it to relate to the crime. I want it to inform the nature of the crime. I just don't want it to be part of the crime itself. Is this clear?
Should read 'wouldn't raise any argument...'
So much for clarity.
Ta-Nehisi,
I should highlight something important coming from a native New York resident. Howard Beach has a history of hate crimes and racial tension. Even my father's close friend was assaulted by three young men back in the 80s and the perpetators were acquitted of all charges. They said that he had no business in the neighborhood. My uncle was attacked in an Italian section of the Bronx around the same time. I am still uneasy about going to Bensonhurst, Howard Beach etc.. even in 2009. My father's friend and my uncle entered hostile territory never understanding the level of racism and anomosity because they were new immigrants from the Caribbean.
Neighborhoods like Howard Beach and Bensonhurst in Brooklyn have bad track records which is why anything coming out of those neighborhoods are analyzed.
P.S. When a group of young Latino guys beat up a young white guy back when I was in high school, they were actually charged with a hate crime on top of their charges because they had proof that they were looking to target a young white male walking by himself. I was friends with victim in high school.
I should also include that back in the day, a friend of mine used to like to go to those neighborhoods with his friends to cause trouble. He was from East New York as well. I guess there was a thrill in it for them. It was not too smart. They failed to realize how their actions would exacberate already hostile feelings towards blacks in those communities giving them what some would call a "justification" for age old racism.
The fact is a number of crimes consider motive a part of the indictment.
There's nothing wrong with that, the motive itself it not a crime, but violence with motive is simply a different crime than violence without.
It's not even necessarily greater as judicial discretion allows for normal violent crime to be punished just as harshly.
I point right back to the reductionist way the issue is discussed.
We like to pretend this is about criminalizing bigotry,I know from experience that one can be an outspoken bigot in this country with nothing to fear from law enforcement.
As much as some people would like you to believe it, this isn't thoughtcrime.
Please give a concrete example of an instance in which the indictment itself includes motive.
I am not asking for an instance in which motive informs the indictment (as in the difference between degrees of murder or manslaughter). Give an example that the crime the suspect is being charged with includes the motivation behind commiting the crime.
We don't, to my knowledge, charge people with perjury or obstruction because they didn't want to get themselves in trouble. We charge them because they lied or obstructed. Why they did it can be considered as either an aggravating and mitigating factor to how we charge or sentence them, but we do not include the motivation itself as part of the indictment (i.e. He robbed the bank because he wanted money, he shot the guard because he wanted to get away.)
Again, maybe I am showing my lack of legal bona fides here. When it comes to actual case law (or any kind of law, really), I am seriously out of my element. I may very well be demonstrably incorrect, legally speaking. I'd just like you to demonstrate. So far, the examples and scenarios given in defense of the law as a concept (e.g. drunk driving vs. premeditated murder; being stupid vs. being devious) seem surprisingly weak to me.
Alesis listed a number of crimes at 2:08 PM yesterday which do contain motive as an element (bribery, etc.). However, for those it is because the exact same act can be legal. One can give money to a politician legally, so intent to give money would not be sufficient, you really need to know the reason why one is giving money. As it pertains to perjury, the act of lying is not criminal, but it is if your motive is to subvert the legal process. Obstruction of justice in and of itself is not motive based, but specific acts, otherwise legal, are considered criminal if the motive is to obstruct justice.
I'm not sure if it can or should apply to hate crime laws. Anything from burning crosses in another's lawn without their permission to murder can never be legal acts, and I would suggest we therefore keep to the general rule of not having motive as an element of crime.
A point that hasn't been brought up before: might hate crime laws, especially ones with motive as an element, have a negative effect on the perceived safety of the threatened community? If motive is taken as an element of the crime, it must be proven beyond a reasonable doubt. When it can't be, we can still prove and convict on the "lesser"/non-hate motivated crime, but it might feel like a defeat. That could serve to strengthen either the terror or the feeling that the legal system does not care about the particular group.
Even if we can consistently convict, are constant headlines about hate crimes on, say, CNN really going to make a threatened group feel safer? I keep thinking about registration of sex offenders: although it was supposed to make people feel safer, it seems to have the opposite effect. Anytime anyone (especially women) I know realizes there are a number of sex offenders living in their vicinity, they get more scared, at least in the short term. Anecdotal, I know, so I'm wondering if anyone's experience is different from mine.
Again, I think you're mistaking (as Alesis has) intent for motive. In bribery, the difference is more subtle, but it's a difference nonetheless. Say a cop pulls you over, you're motivation is your fear of jail or desire not to get a ticket or just to be on your way. Your intent is to satisfy that motive. Your crime is paying him with the intent of having him break his ethical and legal duty. You're motivated to do this out of a fear, or whatever. We do not try you because you're afraid to go to prison. We try you because it's illegal to do what that fear motivated you into doing.
It's the same with obstruction. The motive is not obstructing justice. Something else motivates you TO obstruct justice.
Do you see the difference?
As to whether the visibility of hate crimes (through a sensational media story or whatever) make people feel less safe. There's probably some truth to that. To be honest though, I am dubious of this notion that the laws are designed to make groups feel safe in the first place. I think the laws are designed to satisfy a marginalized groups' desire for vengeance. Call it justice if you want, from the perspective of the victim, it's almost always the same thing.
In the end, why should we believe that hate crime law would make people feel more safe? If regular criminal law (which, you have to admit, allows for some pretty harsh penalties) is an insufficient deterrent, then what makes us think hate crime is going to be a more effective one? Casting aside the moral and ethical arguments for and against hate crime legislation, do we really believe that these laws act as a more effective deterrent than regular criminal law? And if it's no more effective as a deterrent than traditional criminal law, and if the same crimes would still carry harsh penalties under traditional criminal law anyway, then what's the point?
Breaker, I thought the same thing at first.
The nuance is on specific acts, that would otherwise be legal. Giving money to cops is not illegal, you might just have sympathy for the profession, your pops could've been a cop, or you might be an altruistic person. Even in the example you posit, giving money does not have to be nefarious, it might be that the person is "tipping" the police officer for doing a good job (unlikely, but just for the sake of argument). If the cop then says "I'll rip up your ticket" and the person says "No, you must still do your duty" the act is not a bribe, but a tip.
Intent to perform the specific act (give money to police) can therefore not be enough to convict on a bribery charge. You need that additional part, purpose/motive, to make it stick.
I think you might be confused, as I was, because motive is actually an element in those crimes. We instinctively read "giving money with the purpose to subvert the process" as the specific act to which intent must be proven, whereas the actual act is "giving money" and the "purpose to subvert the process" is the motive for giving money. Compare this to any other crime, which will say nothing about "purpose". Fear, etc. are therefore components of the "purpose to subvert the process"
It took me a while to get the nuance as well, and I have five years of law school under my belt. I suggest you read the article offered before. Hessick offered a real-life example of treason that brought the point home to me: a dad bought his son a car.
As to all your other points, I think you're right on the money.
@Luuk,
Honestly I hate to break out definitions. It can be taken as a really condescending thing to do. Please do not take offense in me doing this. You seem to be quite intelligent and reasonable. And if you have five years of law school, I'm sure you know more about the law than me. Please read this as a civil attempt by which I'm trying to further explain my point.
"We instinctively read 'giving money with the purpose to subvert the process' as the specific act to which intent must be proven, whereas the actual act is 'giving money' and the 'purpose to subvert the process' is the motive for giving money."
in-tent
–noun
1. something that is intended; PURPOSE; design; intention: The original intent of the committee was to raise funds.
2. the act or fact of intending, as to do something: criminal intent.
3. Law. the state of a person's mind that directs his or her actions toward a specific object.
4. meaning or significance.
(My emphasis on purpose)
mo-tive
-noun
1. something that causes a person to act in a certain way, do a certain thing, etc.; incentive.
2. the goal or object of a person's actions: Her motive was revenge.
3. (in art, literature, and music) a motif.
Maybe I misunderstand you, but from where I stand, you seem to be conflating purpose with goal.
1. You don't want to get a ticket. Not getting a ticket is the goal.
2. To attain your goal, you devise a course of action (i.e. giving money) with the intent of satisfying that goal.
3. You give the money.
While it is without question that you are intending to give money, that is not where your intent ends. The purpose for which you are giving the money (i.e. to subvert the process) is your greater intent. Your motive is what drives you to that intent. Your motive is not wanting to get a ticket. Your intent is to not get one. These lines get really blurry the more we talk about them.
In the example of a hate crime:
1. You don't like homosexuals, you don't want them in your neighborhood, your city, your country, your world. These desires fuel a hate that motivates you to act.
2. Your action carries with it not only an intent to act, but an intent to do harm to the body or property of your victim. One could make the argument, as some have, that it carries an added intent to terrorize a community. Fine. But it's the intent to terrorize, not the desire to have that community be terrorized that we punish people for.
One final (I think) point:
Intent is the design, the planning, and the purpose of an action. To intend is to act. Grammatically, when we intend to do something, we are the subject of the sentence. Since the intention is an action within itself, we can be charged for intention alone.
Motive is that which drives us to act. Rather than motivating ourselves, someone or something else, motivates us. It is not about acting, it's about being acted upon. We are the direct object. The motive is the subject performing the action on us. We can only be held to account for those actions we perform, not those that are performed on us.
Breaker, I am taking no offense. In law, definitions are of the utmost importance, and using the same ones is crucial to the debate (glad to see you also use dictionary.com). I would suggest though, that if in a legal discussion, you use only the legal definition. So for intent we should use only "the state of a person's mind that directs his or her actions toward a specific object."
However, I don't think the definition is the problem. In fact, I'm pretty sure we're both right and wrong, regardless of our definition.
The problem is my assumption that motive-based crimes (for lack of a better term) are in opposition to intent-based crimes. There is no such thing as an intent-based crime; or better said, all crimes, even those with motive as an element, are intent-based crimes and the intent must extend to the motive, which is what you were correctly stating. A person's state of mind must always be considered to determine culpability; in fact, it is the most important aspect.
By the way, I've used "element" a couple of times now, without defining it. An element is any part of the description of a crime which must be proven in order to come to a conviction.
Motive-based crimes, crimes with motive as an element, are therefore crimes in which a particular reason must be proven to exist in order to come to a conviction. They are specific acts that given a particular reason, are considered illegal. That same act, if committed for a different reason, is not illegal. In the case of bribery, giving money to a police officer is illegal only if your reason is to unduly influence him or her. Any other reason you might have to give money to a cop is legally permissible.
Motive-based crimes stand in contrast to consequence-based crimes, such as assault. There the consequence of your actions (severe bodily harm) is what defines the criminality, regardless of your reasons for doing so. You therefore do not need to prove the person was acting because of a particular reason.
A hate crime would make motivation an element in assault, making it harder to prove. Considering assault is hard enough to prove as it is, I consider this enough reason to not have hate crimes. But like you, I'm extremely concerned about the larger implications. In fact, I wouldn't be surprised if it led to criminalizing hateful thought or speech - that is, in one generation or more, we'll hear the argument "well, we already consider hate to make crimes worse...why not criminalize hate itself to avoid the possibility of such crimes?"
By the way, I live and studied law in the Netherlands, where the usual duration of the program is 4 years (bachelor and master). The reason why it took me 5 years is because I failed formal criminal law, twice. Sad thing is, this subject is material criminal law, with which I did pretty well. I'm glad you pushed back, because at least now I think I have a better understanding of the issue.
We also have a term in Dutch, "mierenneuken" ("fornicating"...not sure if I can use the actual word here, but I think you can guess what it is...with ants), which denotes a needless devotion to semantics. Which given our complete agreement on the larger issue of hate crimes, is what I think we're doing.
So I'm with you, I think I've made my final point.
In these conversations many people cannot seem to go beyond the idea of "motive." Hate crimes legislation is not about motives or "thoughts" or "worldviews," but about terrorism and allowing crimes to be adequately prosecuted that otherwise may not be.
But 'terrorism' is a question of perspective. Any community may feel terrorized by any violence that targets one of their own brutally (regardless of the motivation behind the violence). Hate crime, if it's about anything, is about motive. You don't need to intend to strike fear in the hearts of a community in order to be charged as a hate criminal. Nor is everybody who strikes fear into the heart of community tried as one. The only prerequisite to being tried as a hate criminal is a motive based on an antipathy you hold towards a protected group. Therefore, it is about worldview. This is why the comparisons to anti-terror law tend to fall apart.
In the case of terrorism, for example, we argue that the intent of the terrorist is to not only cause death, but also fear among the population at large. But the MOTIVATION isn't to cause terror. That's the intent. The motivation is religious fundamentalism, or hatred of the West, or the federal government, or capitalism, or abortion policy, or environmental policy, or world trade policies, or whatever. But you know as well as I do that we do not charge terrorists (when we charge them) for the worldview that motivated them to carry out their acts.
The question I would pose to you is this: If this is--as you say--really about combating terrorism, then why isn't there a greater push to broaden the definition of what is covered under anti-terror laws?