Thought Crime and Mens Rea

I’ve made the argument, but I’m just a little schmoo lawyer. From a lawyerly perspective, though, it seems obvious. Questions of intent and state of mind are integral to all sorts of issues in the law, both civil and criminal. As you mentioned, state of mind and intent are all the difference that exists between a killing that the law treats as simple incidence of negligence (and thus subject to, at most, civil liability) and one for which the state will sentence you to death. State of mind and intent are what make the difference in a civil case as to whether you can be held liable for punitive damages, and state of mind and intent make all the difference when it comes to whether your insurance coverage will indemnify you for compensatory damages for injury or death to another as well. I could go on, but you already get the point.

I’ve read very little of the relevant literature, but enough to know that the relationship between hate crimes and mens rea is a pretty live topic.

I’ve seen a lot of discussion of mens rea and hate crime legislation, usually comparing the murder/manslaughter distinction.

@2: That line has already been crossed, hasn’t it? If I own some drugs with the intent of using them, that’s one crime, but if I own them with the intent of selling them, that’s a different and more serious crime. Knowledge of the fact that the drugs are drugs is an element of both crimes, but further intent is an element of the latter and not the former.

ISTM that there are already a lot of crimes that are more or less severe depending on their circumstances — near a school, as part of the business of an organized crime enterprise, etc. — and the perpetrator’s state of mind is a circumstance like any other, if proven. Whether and when it’s a good idea to take this into account is basically a legislative decision.

I will say, though, that if I was sitting on the jury, it would be pretty hard to convince me of someone’s state of mind beyond a reasonable doubt. Something like membership in the KKK or similar organization combined with attack on a stranger known to belong to a group targeted by the organization.

John is correct, of course, that the public argument against thought crime is very weak as it does not even attempt to make the critique that Kid Bitzer brings up. But I would challenge that critique, as others here are doing, because it seems to me that simply knowing whether or not you were committing a crime is not the only factor currently being considered. For example, there is a difference between first and second degree murder which is entirely mediated on the basis of mind and motive of the accused. The mens rea argument seems to rest on the false premise that motive is not taken into account, when it seems that this is not the case for some examples (perhaps Bitzer could address these examples?).

This is very similar to hate crime legislation since, as far as I know, it only increases the severity of pre-existing crime. It would be a new distinction if we started punishing acts that, while not otherwise a crime, become criminal when conducted due to reasons of racial prejudice or similar (I’m thinking of threatening acts, I suppose).

the doctrine of mens rea has not traditionally investigated whether i killed him because he was a political opponent, a rival lover, or an inconvenient witness. it has not considered whether the receiver of stolen goods was planning to donate it to the church or spend it on drugs.

That’s a specious distinction. For example, two kids grab a car that doesn’t belong to them. Is it grand theft auto? Or joyriding? Depends on whether there was an intent to deprive the owner of the car permanetly. This kind of distinction runs throughout the criminal law. Attacking a police officer, or a witness in your case, or a family member, or the president, is a distinct crime from just attacking someone generally. Having sex may be criminal if the person with whom you have sex is underaged, or someone over whom you have authority. Embezzlement is a diffferent crime than a random person grabbing money from a store’s cash register.

but we have not criminalized any one motive for it more than another.

Yes, actually, we have — often. For example, a federal criminal statute (I keep forgetting whether it’s 18 USC 241 or 242 and I’m too lazy to look it up) allows federal prosecutions for such otherwise non-federal crimes as assault and murder if done for the purpose of interfering with someone’s exercise of his civil rights. In some jurisdictions, murder for hire is treated more harshly at the offense level (rather than merely as a sentence consideration) than certain other kinds of murders.

I don’t really know the law, but I think I’ve seen it claimed (this should be a pretty straightforwardly answerable claim, by anyone less lazy than I am) that hate crime legislation IS based on intent; that is, it’s not a law against killing a black person because you hate black people, it’s a law against killing a black person in order to intimidate black people. Is that right? If so, it pretty clearly fits in with other intent-based criminal law.

In lots of places, assaulting or murdering an officer of the law is a specific offence.

My impression is that part of the mindset behind hate crime legislation (whether or not this is actually true) is that people that would commit a crime for these reasons were more likely to re-offend.

18: I agree 100% that is the motivation for hate crime laws in the first place. However, when you put those laws on the books in practice, the tests in a court of law for whether something rises to a hate crime is not, in fact, whether the act has the intimidating or inciting effect that you describe, but what the motivation of the accused is. So you may attempt to defend the laws by referring back to the original motivation for the statute (which requires some additional work), or you can simply defend laws that make certain offenses more or less aggravated based on motive. Personally, I think either argument can be made and the argument against hate crime laws on the principle of the matter is very poor indeed.

I think some distinctions are being missed here. Prosecutions are generally concerned with using facts to establish motivation in order to secure a conviction. So the intent to kill needs to be demonstrated in order to get a murder conviction, the intent to permanently deprive in order to get a conviction for theft, etc.

Thought crimes are where the thought alone is the crime. Nobody should want to go there. But the crimes that progressives worry about in their desire to protect vulnerable minorities (quite rightly in my view) are where folks try to sow hatred. The objective is in the mind, but as always the intent would have to be shown.

It is not at all clear that judging a crime that is already a crime differently because it is (for example) racially motivated makes sense, and a conservative might worry that liberals might want to do this. In a muddled way I think this might have been the kind of thing that Boehner was trying to get at (or maybe he really hasn’t noticed the centrality of intent in criminal law).

roac, if you’re interested in those connections, william ian miller at ann arbor has written several books on the subject of norse sagas and the origins of anglo law.

http://www.press.uchicago.edu/presssite/metadata.epl?mode=synopsis&bookkey=3632141

http://www.amazon.com/Eye-William-Ian-Miller/dp/0521856809

kid b @ 26 — Thanks!

the thoughts which have traditionally been taken to criminalize an act (or render it non-criminal by their absence) are thoughts with respect to the nature of the crime itself; generally something like, “did the accused know, of the act that they committed, that it was an act that constituted the crime of which they are accused?”

I don’t think this is actually true. For example, the mens rea for murder (in the UK) is intent to cause grievous bodily harm. So someone who didn’t intend or know that the act he was committing would lead to death (constituting murder) could still be convicted of murder. I think John’s original point is a good one: whether or not a particular act (shooting someone) is classified as a serious crime (murder) or a less serious crime (mansluaghter) depends on the state of mind of the person who he committed the act in question. This is enough to set aside the objection to hate crime laws that there is something new and impermissible in treating the same act differently in law purely on the basis of the actor’s state of mind.

I would not be surprised to learn, and I would respect the argument, that hate-crime laws don’t accomplish much or do any particular good. That said, the “principled” argument against them is just so much hogwash, for reasons already well expressed, and there is no reason to think that they do any particular practical harm. Therefore, if a decent, law-abiding sector of the community thinks itself victimized because of its status and wants such laws, even if the benefits are merely symbolic, I see no reason they should not have them. If there is no principled or practical argument against them, it’s just a question of whose side you’re on.

“In lots of places, assaulting or murdering an officer of the law is a specific offence.”

But usually this is couched as a a strict liability element–you don’t have to actually know that the person was an officer of the law (which is imo ridiculous, but there we are).

but I think I’ve seen it claimed (this should be a pretty straightforwardly answerable claim, by anyone less lazy than I am) that hate crime legislation IS based on intent; that is, it’s not a law against killing a black person because you hate black people, it’s a law against killing a black person in order to intimidate black people.

I also haven’t looked it up, but this is what I recall from law school as well.

To spin out the distinction, imagine two people, Al and Bob. Al is a virulent racist, but not particularly involved in the society around him. Bob doesn’t have a racist bone in his body, but is terrified of property values falling, and believes (for the sake of the hypothetical, accurately) that his property values will fall if black people move into his neighborhood.

A black person moves in next to Al. Al hates him because he is black, and secretly poisons him with a poison mimicking a heart attack. As Al intended, no one ever figures out that it’s murder rather than a natural death. Al has killed a black person out of racial hatred, but did not have the intent of intimidating other black people. That’s murder, but not a hate crime.

A different black person moves in next to Bob. Bob, regretful that necessity drives him to it, and with the sole motive of preserving his property values by making it clear to other black people that it’s not safe for them to live in Bob’s town, burns a cross on the guy’s lawn, and lynches him, leaving the body hanging from a tree in front of his house. Despite Bob’s total lack of racial hatred, he has committed murder and a hate crime, because his intent was to intimidate black people. (I do apologize for the grisly hypothetical — it’s as unpleasant to write as it is to read, but I needed to to make the point.)

Now, I haven’t done any research to confirm that my law school memory is accurate about how hate crime statutes actually are drafted, but it’s clear that it’s at least possible to draft them so that they depend on intent (to intimidate) rather than motive (racial hatred).

“yelling “Chink” as they smash a bottle over the head”

i had thought either “clunk” or “thud” was more traditional.

i am willing to take lb’s word for it (as always) that the question in hate crimes goes to the prospective or forward-looking intent rather than to retrospective intent. it’s bob’s intention that his action deter other blacks from moving into the neighborhood that makes it a hate-crime, and so what the law wishes to deter, apparently, are miscreants’ wishes to deter others. the state reserves its monopoly on deterrence.

but then it seems very odd that al could get off scot-free (of the hate-crime charge) on the grounds that he did not want to send a message by his murder. if that’s how the laws are wrote, then it seems unclear to me whether a gay-bashing murder would fall under them, i.e. a murder (whether matthew shephard’s was of this description or not), in which the motive was simply the murderer’s virulent and homophobic hatred of gay people per se, divorced from any intent to send a message.

this seems even further from the cases noted above where the murder of e.g. a police officer is treated differently (or the murder of a govt official is considered assassination). now it’s no longer merely a distinction between characteristics of the victims (e.g. president vs. citizen, cop vs. non-cop, minority vs. non-minority). now it really does seem like it’s the very act of sending a message that is being picked out as the newly criminalized element.

That said, the “principled” argument against them is just so much hogwash, for reasons already well expressed, and there is no reason to think that they do any particular practical harm.

You might want to look more closely about how hate crime statutes have been used before you conclude there is no reason to think that they do any particular harm. A few years after hate crimes legislation was passed in New Jersey, it was the case, counterintuitively to me at least, that African Americans were charged with hate crimes disproportionately to their representation in the population. I’m not sure if that continues to be the case, as I have not seen more recent statistics, but hate crime laws certainly have the potential to do particular practical harm.

(Disclaimer: not a lawyer)

In English law, there’s a distinction between assault and affray, with affray requiring ” conduct such as would cause a person of reasonable firmness present at the scene to fear for his personal safety”. So (roughly speaking) there’s a distinction between starting a fight with a specific person, and starting a fight that causes bystanders to fear that they will also be harmed.

I wonder if hate crimes laws could be fit into this model? i.e. a distinction between harming just a specific person, and harming a person in such a way that would reasonably cause other members of some group to also fear for their safety.

Lizard Breath @ 38 & 41 made exactly the point I wanted to make, but said it a lot better.

@42, Who were the hate crimes perpetrated against? Is it possible that African Americans were actually committing more hate crimes? That sounds unlikely to me, but it isn’t utterly impossible. White people might simply have more other options for effecting discrimination, making criminal acts less desirable relative to doing other things.

I love the comment, “America is at that awkward stage. It’s too late to work within the system, but too early to shoot the bastards.”
– Claire Wolfe, 101 Things To Do ‘Til the Revolution

Sums things up pretty clearly.

1

I don’t think it’s been mentioned yet, but remorse or the lack of it is a major factor in sentencing. That can be related to propensity to re-offend, but it’s not the same thing. So, it certainly seems as if, given that you have committed a crime, you can be punished more or less severely depending on your mental state.

leederick, you wroteThey decided to protect particular classifications (race, color, religion, and national origin and so on) because they’re in the business of making shamelessly political and ideological distinctions between the worthy and unworthy.

I don’t think this supports the claim that the Democrats’ ‘thought crimes’ legislation … places a higher value on some lives than others. Since every hate crime law I am aware of includes crimes based on race and gender, the only individual who is not the potential victim of a hate crime is someone who has neither race nor gender.

A hate crime can be thought of as an act of terrorism, in that the victims of the crime include a wider group than the immediate target. It’s odd to find conservatives so consistently weak on terror.

the people who killed Matthew Shepard are presumed to have intended to intimidate, because they killed him in a way that made it publicly obvious that he was killed for being gay.

What about the way Shepard was killed made it obvious that he was killed for being gay?

Seriously, if you knew what a hell high school is for gay teens in many parts of the country, you wouldn’t be so puzzled by the idea that a violent act intended to intimidate a group can be much more destructive than the same act directed only at an individual.

Although you quoted from my post to begin your own, I’m not sure if the “you” in the above excerpt from your message is directed especially to me. I think I’m pretty awaare of what a hell high school can be for some gay teens, and certainly I’m personally aware of what it was like in the mid 70s. My opposition to hate crimes laws actually grows out of my personal experience as a gay man and my political experience as an advocate of sexual liberation.

Given your opinion about the efficacy of hate crimes law to ameliorate the experience of African Americans, you must be astounded by the fact that the name of the currently pending legislation is the Matthew Shepard and James Byrd Hate Crimes Prevention Act .

Sorry, parse, shouldn’t have said “you”.

And no, I’m not astounded. I’m not trying to defend hate crimes legislation exactly as it exists, just looking for the rational core — and suggesting that to find it, we need to think more about sociology and politics and less about philosophy and law.

My opposition to hate crimes laws actually grows out of my personal experience as a gay man and my political experience as an advocate of sexual liberation.

Can you say more about this?

@58 I didn’t think the idea of “people are presumed to intend the natural results of their actions” meant that intent is not a factor at all. In other words, inflicting extra cruelty on somebody and/or beating them up for no discernible reason other than intimidation, for example picking out a person at random in front of a place of worship, or gay bar… these things could be considered as constituting intimidation, without any other evidence of an intent to intimidate. What the hate crime legislation might do, in effect, is to classify crimes in which “hatred” is visibly expressed as something that is obviously going to intimidate, thus eliminating the question of whether (sorry…) mutilating the Pastafarian’s body by cutting alpha fish into it after killing them was simply an expression of the killer’s personal feelings, or whether it represented a program to intimidate the whole Pastafarian community.

Perhaps another aspect could be incitement. Hate crimes are acts that could be seen as inviting copycat crimes, in a way that wouldn’t be true about muggings. I wouldn’t see copycat crimes as a sociological trend so much as loosely coordinated criminal action, each crime is a statement made to other like-minded people who can support the statement by committing further crimes. This in contrast to two muggings of little old ladies, where the only connection between the two crimes is in the minds of potential victims and other observers, but the crimes are totally separate acts, whereas a cross burning in Michigan that makes national news, and a subsequent cross burning in Arizona, are connected.

Thanks, Lemuel, for you interest in how a commitment to sexual liberation has informed my position against hate-crime laws. There are several strands, but let me address one: a pervasive distrust of law enforcement. Last year (last year!) in Manhattan (in Manhattan!) the police operated a months-long sting operation in multiple locations designed to entrap men cruising in adult bookstores and falsely arrest them for prostitution. The notion that we should entrust the institutions responsible for a continuing assault on gay culture with increased police powers with the expectation that they will be used to protect GLBT victims of crime leaves me unconvinced.

I’m attending tonight a documentary on the case of the New Jersey 4, a group of lesbians who were arrested after an evening in Greenwich Village ended with an altercation between the group and a man who propositioned one of the women, leading to a nasty verbal exchange that escalated into a brawl that allegedly included the use of a knife. The facts of the case are unclear, but even accepting the version offered by the prosecution, the lengthy sentences the women received seemed excessive, almost certainly fueled by media reports describing them group as a “lesbian wolf pack.”

The efforts to advocate on behalf of these women—which continues—has been complicated by the fact that so much of the LGBT’s political capital in recent years have been expended on demands for hate-crime laws that emphasize punishment and harsh penalties.

it seems that you actually accept that the state of mind you are in when you commit a crime can make it a worse crime, deserving of more severe punishment

We don’t even need to appeal to this. I think it’s perfectly appropriate to call a crime an act of terrorism when the circumstances of the crime provide compelling evidence that the act was not isolated, and probably would be repeated, against other members of the relevant community, if another opportunity to commit the crime arose. That’s not the definition of terrorism, but seems like a necessary condition for an act to be terroristic.

(On the other hand, I am not bothered by appeals to state of mind when classifying crime or determining sentencing. My point here is meant to be technical, not impassioned.)

I am really very doubtful about what Lizardbreath says in #38 (and which everybody else who commented seems to assume is correct). It doesn’t fit with what I’ve read elsewhere. I don’t have time to look it up but here is the home office’s definition.

This seems to be a really good overview of the whole issue which explains what is, and is not, unusual about mens rea in hate crimes.

Here is some more information.

Under Ohio’s statute, for example, any person who commits aggravated menacing, menacing, criminal damage or criminal endangerment, criminal mischief, or telephone harassment “by reason of the race, color, religion, or national origin of another person or group of persons” is guilty of the hate crime termed ethnic intimidation (Ohio Rev. Code Ann. § 2927.12 [Baldwin 1996]). … In Wisconsin, for example, defendants who intentionally select their victims based at least in part on the victims’ race, religion, color, disability, sexual orientation, national origin, or ancestry are subject to more severe penalties than they would receive in the absence of such hate-based intent (Wis. Stat. § 939.645 [1995]). …

In 1993 the Supreme Court revisited hate-crime legislation and unanimously adopted a coherent approach. In State v. Mitchell, 508 U.S. 476, 113 S. Ct. 2194, 124 L. Ed. 2d 436 (1993), Todd Mitchell, a young black man from Kenosha, Wisconsin, was convicted of aggravated battery and received an increased sentence under the Wisconsin hate-crime statute. The incident at issue began with Mitchell asking some friends, “Do you all feel hyped up to move on some white people?” Shortly thereafter Mitchell spotted Gregory Reddick, a fourteen-year-old white male, walking on the other side of the street. Mitchell then said to the group, “You all want to fuck somebody up? There goes a white boy; go get him.” The group attacked Reddick. Reddick suffered extensive injuries, including brain damage, and was comatose for four days.

Mitchell appealed his conviction to the Wisconsin Supreme Court, which held that the hate-crime statute violated the First Amendment. The state of Wisconsin appealed to the U.S. Supreme Court, which reversed the Wisconsin Supreme Court. The High Court ruled that the Wisconsin statute was constitutional because it was directed at conduct, not expression. The Court distinguished the R.A.V. case by explaining that the St. Paul ordinance was impermissibly aimed at expression. The primary purpose of the St. Paul ordinance was to punish specifically the placement of certain symbols on property. This violated the rule against content-based speech legislation. The Wisconsin law, by contrast, merely allowed increased sentences based on motivation, always a legitimate consideration in determining a criminal sentence.

Hate-crime laws complicate the work of police officers by requiring them not only to capture criminals and investigate their criminal acts, but also to conduct a broad investigation of their personal life to determine whether a crime was motivated by prejudice. This determination may be difficult to make, and most laws offer little assistance in defining motivation.

Another thing: we use intention wrt crimes like incitement, don’t we? To my knowledge, there is no controversy about those.

And having been prodded out of my laziness, here’s a link to a Connecticut hate crimes statute that works the way I described in 38. But you’re right that that isn’t a fair description of most hate crimes laws — here’s a link to a page with all the state hate crimes statutes. While I haven’t looked at all of tthem, I had to go through five or so until I found one that was unambiguously about intent to intimidate rather than about motivation.

LizardBreath, the way I read the Connecticut statute you have linked to, it doesn’t work the way you described in 38. Your explanation suggests that the statutes make criminal behavior that is intended to intimidate members of a specific group of people (a race, religion, etc.) by means of an attack on a single member of the group. The Connecticut statute does focus on the reason for intimidating the individual attacked–it’s the specific intent to intimidate or harass another person because of the actual or perceived race, religion, ethnicity or sexual orientation of such other person. But I don’t see anything about the intimidation being intended to affect the group as a whole.

Roac, my mind was changed in favor of hate crime laws six-seven years ago and away from them this year because of blog discussions.

But LizardBreath, in neither the Connecticut nor the Michigan case is the intent to intimidate the hate crime–only the intent to intimidate because of a certain motive, the motive being the race, color, religion, gender, or national origin of either the victim or some other person the assailant intended to intimidate. In the Michigan case, this is, because if I intend to intimidate someone because of their race, I’m guilty of the crime, but if I intend to to intimidate someone because of their sexual orientation, I’m not guilty.

I wonder if there has ever before been a documented example of a blog discussion changing someone’s mind about an issue.

There’s no way you’re going to get me to document the innumerable times someone has called me on my stupidity or ignorance on a blog and convinced me to reconsider my position (and this isn’t even taking into account every circumstance in which I’ve changed my mind due to a discussion).

Maybe I should go on the record more explicitly as someone who opposes ‘hate crime’ qua ‘hate crime’ legislation, but who supports anti-terrorism legislation that clearly identifies so-called ‘hate crime’ against subpopulations or identifiable cultural communities as terrorism. I would go so far as specifying “a criminal act^1^ which there is probable cause to believe would be repeated by the perpetrator against arbitrary members of a definable subpopulation, which would unreasonably inhibit the ability of a subpopulation to exercise their legal rights.”

“The offender would repeat the act against an arbitrary member of the subpopulation, given the opportunity” sounds very very close to a necessary and sufficient condition for terrorism, though perhaps the phrase “the act” needs a careful or more precise specification.

^1^As in, an act that’s already illegal and not just a minor misdemeanor.

Now it has nothing to do with ‘intent’ or ‘motive’ in the sense of consulting the oracle, and everything to do with evidence that the act was against an otherwise arbitrarily chosen community member.

What if the targeting of a specific group was not arbitrary–say a mugger who seeks immigrants as victims based on the belief that they are less likely to report the crime to police?

Shorter me: current hate crime legislation sucks pretty uniformly, but sensibly written anti-terrorism legislation would sweep up the kinds of crimes against humanity that hate crime legislation is supposed to sweep up, and that would be a good thing.

…oh. Wait, I see. Ignore my #89.

The mugger could indeed use their “I only target immigrants because they are less likely to report” as a defense which raises reasonable doubt about whether the crime was terroristic. Furthermore, I would completely agree with the mugger’s defense, and would be o.k. with the mugger being tried for armed robbery but not terrorism. (It seems reasonable to assume that every armed-robbery perp will target those who are least likely to report, so any penalty for that should be built into the penalty for a guilty armed robbery sentence.)

I would question the wisdom of pronouncing that hate crime legislation as it exists all over the world ‘sucks’ and ought to be re-drafted along ‘sensibl[e]’ lines on the basis of (I am assuming) about fifteen seconds thought and a couple of blog comments.

The history of lynching in the United States, described by Marc at no. 79, actually reinforces the point made in my previous post. Torturing someone to death was certainly against the law everywhere that a lynching took place. But these acts were never prosecuted, because the people in charge of enforcing the law were sympathetic to the perpetrators where they were not actually among them. The point of anti-lynching laws was not to make lynching illegal, but to enable people from outside the local community — the feds — to prosecute it.

To repeat my position: The disposition and motivation of the people enforcing the law is everything. The content of the law is relatively unimportant.

The Home Office site (linked above) has a short rationale which mentions the fact that ‘hate crime creates fear in victims, groups and communities’ alongside several other reasons. But victims and communities may be fearful if they learn that their members are subject to attack based on their membership and regardless of whether the intention of such attacks is to create fear. So even if this were the only purpose of the law it seems unlikely it would be an adequate response to this danger to criminalise actions with this specific intention.

None of this is to endorse the concept of ‘hate crime’, which I do think has serious problems.

I don’t know the answer to this–do any hate crimes laws help deal with the problem of local law enforcement being on the side of those perpetrating the hate crime? Like the lynching laws mentioned above?

(I’m not assuming that federal law enforcement is necessarily more likely to do the right thing, because that would be a ludicrous position. But there have clearly been times that federal intervention has helped, even as there have clearly been times it has hurt.)

Sorry, that sounded very irritiable. I gave my opinion, based on my intuitions, I suppose, which differs from John’s. I haven’t given an argument for my opinon but neither did John or anyone else. Unfortunately I don’t have time to do so now so you can take it into consideration or ignore it, as you choose. Or you might wish to give an argument of your own as to why you think I am wrong.

engels, I’m not sure that a racial based killing isn’t morally worse than a killing motivated by greed. Absent a strong argument that it is and given the threat to principles of due process posed by hate-crime laws, I’m against any scheme I’m familiar with to capture the moral distinction in legal proceedings.

I would question the wisdom of pronouncing that hate crime legislation as it exists all over the world ‘sucks’ and ought to be re-drafted along ‘sensibl[e]’ lines on the basis of (I am assuming) about fifteen seconds thought and a couple of blog comments.

Given the long and storied history of its use, I would question taking too solemnly any blog or comment post that begins with the word Shorter. :-)

Killing someone for their money doesn’t have to be motivated by greed.

That’s a very good point, and helps indicate what slippery slopes we encounter when we try to sort these issues out.

You are also correct to point out that the attempt to capture moral distinctions in law is a separate issue from making them in the first place, and I did notice your early caveat that you found serious problems in the concept of hate crimes. I didn’t mean to suggest the opinion you offered as the the moral weight of various acts committed you to support for using “hate crimes” as a useful concept for grappling with them.

Parse, to get back to your first question, you probably won’t consider it to be the ‘strong argument’ you require in order to change your mind but you might consider ttwo types of consideration in forming a moral judgment of an action: the effects the action has and the moral quality of the action itself. The Home Office page proviides some reason for thinking that the effects of a racially-motivated murder may be worse than the effects of murders typically are. On the second, it seems widely agreed that racism is an especially contemptible mental attitude, so if it makes sense to weigh people’s motivations for acting when judging their actions at all, then it seems likely that an action that whose motive involved racism could be judged more negatively than it would be if it were differently motivated.

Although you pointed out that killing someone for their money isn’t necessarily a crime motivated by greed, it’s certainly the case that greed is the motive for some murders. Do you think it’s the case that it’s widely agreed that racism is more contemptible than greed? And if so, do any reasons for that consensus come to mind?

Also, do you believe there’s such a thing as racism without malice? For example, what if someone believes that blacks are less intelligent than whites, but the belief doesn’t result in any animus toward people of color, is that a kind of racism that’s less contemptible than the pervasive hatred of blacks that might likely motivate a violent crime against them?

There is a fairly obvious point:murdering a man because his skin color is the wrong shade and he dared to move into the “wrong” neighborhood obviously has a broader impact than killing the same man for the money in his wallet. Hate crime laws are laws against intimidating communities, first and foremost. They can also incite tit-for-tat retaliation, thus amplifying the harm. I see no issue in attaching greater moral culpability and penalties to such crimes.

More to the point, you have to at least begin by understanding that these laws are responses to very specific and real cases of organized intimidation. If you disallow the entire category then – yes – you are saying that someone burning a cross on a neighbors’ lawn is exactly the same in the eyes of the the law as accidentally driving your car on their lawn and ripping up the turf.

Even accepting that racism is more contemptible than greed, that members of the group may feel intimidated, and everything else mentioned – it’s still not clear why this should constitute a different crime rather than an aggravating circumstance of the same crime.

In theory, the question of whether a given act is a hate crime might lead certain jurisdictions, with a history of implicitly condoning violence against “boys” who had it coming or “sluts” who were asking for it, to reconsider their standards of justice. In practice it might lead to closer scrutiny of such communities or to federal intervention.

Slacktivist (Fred Clark) has a fresh post up on this issue.

Federal charges of assault as infringement on a victim’s civil rights were insitgated as a way to slip federal jurisdiction into criminal offenses, where the state could not be trusted to bring charges. Morally justifiable but constitutionally suspect.
The question is less thought crime than equal protection. Does one group deserve more protection than another? “Special rights” John Holbo #59 missed leederick’s point. in #51.
The simplest answer would be to mark a hate crime as a crime committed as an act against a person as a member of any larger social group, racial, sexual, or left-handed bi-sexual blue-eyed golfing enthusiasts… or bankers and billionaires.

But again, as I said above, our system is balanced in favor of the individual. Another society may prefer to balance the rights of the state against the accused- guilty until proven innocent. Other societies ban certain forms of political speech and such bans are approved of by (foreign born) authors on this site. All of these decisions originate in some sense with values. And I’m sure many people here would disagree with the ACLU’s defense of the right of the American Nazi Party to march in Skokie Illinois.

The moral dilemma in this sort of case is this: how do you distinguish between shrewd deterrence measures, that take note of and effectively target harmful sociological trends; and ‘pour encourager les autres’ measures, which violate the norm of ‘equal punishment for equal crime’ by making an example of some criminal who has the bad fortune to be sociologically typical, in some recognizably harmful – hence intimidating – way.

That is a moral dilemma but should not be considered a legal one in this country. The interests of the state are not paramount. Social engineering by command, from above, is a blunt instrument and should in principle. The constant reliance on (anti-democratic) judicial review is problematic in a democratic society. One of the mistakes of institutional liberalism it seems to me is to posit an opposition of the individual to the state with the state standing for community. But the state is not synonymous with community. It makes more sense to see a tripartite relation of the individual the state and the community. The freedom of speech that may be irrational to the state is rational as a defense of the prerogatives of the community. Crimes based on hatred of a group weaken the community. Do “hate crime” laws weaken it further? It’s important to understand racial demographics but by following them do we strengthen the barriers? Read Derrick Bell’s “dissent” in What Brown v Board of Education Should Have Said.

The state ensures punishment not (just) by way of securing private retributive ends but by way of securing a more diffuse public good.

That’s true to an extent – law not backed by the state wouldn’t really be law as we know it. At the same time, that diffuse good (the rule of law) is itself threatened if the state involves itself directly in censure and punishment. It’s a fine line.

The privileged group is always going to scream bloody murder no matter what is attempted to mitigate its abuses. It doesn’t take much to notice that certain groups have forever been abused or ignored, or that various institutions are exclusively white and male, perhaps as a result.

Violence, not always merely implicit, has been instrumental in achieving this result. Criminalizing openly racist and sexist violence is a necessary step toward a fearlessly free society. If you can’t step out of the closet or toss off the veil without someone shooting at you, all you have left is your own gun.

I’ve got a few guns in my closet, too, but they’re pitiful arguments. I’d rather we had general agreement that throwing acid in women’s faces because they were uppity was strongly discouraged, and so forth. Presumably the next commenter will defend the practice.

Something to bear in mind: these kinds of laws have been in force for 2-3 decades in the US and other countries so it seems a little bit odd that so many people seem to be basing their objections to them on a line of argument that goes ‘we simply have no idea what would happen in practice, perhaps they will make things worse for the very people they are designed to protect!!?!’ (without seeming to want to know whether or not there is any evidence that bears this out…)

My problem with your (Bad Jim’s) approach is that it follows the same conceptual framework as the one employed by the perpetrators.

Suppose some group in a foreign country faces an imminent threat of extermination. The group is defined somehow by racists (or homophobes, or whatever) using their racist doctrines, their racist terms. You want to protect those in danger by giving them refuge in your country. Would you write this law by defining the group eligible for refugee visas in the same racist terms, using same concepts – or, instead of creating a privileged racial group, would you rather offer refugee visa to any individual who can demonstrate a well-founded fear of persecution?

One thing I figured would get mentioned but didn’t: Apparently there’s at least one case currently under investigation in which a federal census worker was lynched and hung with the word FED scrawled across his chest.

So, one argument against my suggestions upthread would be that this lynching qualifies as a hate crime / terroristic crime under my suggested definition of that kind of crime, with the subpopulation identified as federal agents.

On its face, ignoring… reality, that does seem sensible — federal agents, as a group, certainly could be terrorized, right? However, as I believe Lemuel implied upthread, it doesn’t take a whole lot of contemplation to recognize the problem with enhancing police power in this way: suddenly someone who stupidly resists arrest could be accused of being a “terrorist” because clearly they would have resisted arrest regardless of which officer was arresting them.

Blast it, here I thought I had a good thing going in #86. Here’s my new tentative conjecture: There’s no way to write this kind of legislation so that it’s both helpfully precise and historically blind.

Parse, you keep saying there is evidence but as far as I can see you still haven’t produced any.

I think Kaveh and Bad Jim get to an important point. Part of the purpose of these laws, by treating racially motivated crimes, etc, more seriously than other crimes is to establish an official abhorrence of racism and similar forms of prejudice. One might hope for effects of this to include changing attitudes in a wide-ranging way (maybe through a kind of ‘chilling effect’) rather than being limited to the deterrence of criminal behaviour. On the other hand, this intention of changing societal attitudes or combatting prejudice might be one which some people feel is not a legitimate aim of criminal laws, which might help to explain why they are controversial.

My reference to banning of political speech included a link, making a specific reference.
There have been defenses on this site of the banning of political speech.

“Parse, you keep saying there is evidence but as far as I can see you still haven’t produced any.” And again: look at Derrick Bell’s dissent in re: Brown v Board of Education.

“Bell, the first tenured black professor at Harvard and a veteran civil rights lawyer, reflects critically on the function and limitation of the landmark Brown decision. He asserts that he, like many of his colleagues, confused the means of integration with the objectives of high-quality education and racial equality. To analyze racial reforms, he has developed a theory of converging interests into one of racial fortuity. For example, it was U.S. cold war interests that necessitated the elimination of legal segregation rather than purported concern with quality education for black children. In other words, when the interests of blacks converge with the interests of whites, blacks are more likely to have their needs addressed; otherwise they are not. Thus white resistance to busing and other integration strategies has reduced the Brown decision and its promise to mostly symbolic value. However, Bell admonishes blacks to not forgo their real interests even when they do not converge with the majority, and certainly prime among those interests is the educational development of black children.”

And claims that some groups have special needs or need special rights feed into rightist criticisms of laws which are in fact designed carefully NOT TO GRANT SPECIAL RIGHTS. The laws refer to discrimination based of race gender or sexual orientation not to discrimination against blacks homosexuals and women.
Once you start saying that some people are more equal than others, you’ve got a problem.
The road to hell etc.

engels, according to blacks represented more than 18% of known hate crimes offenders. I believe African Americans represent about 14% of the population.

I’m not sure if I’ve coded the url correctly. The 2007 FBI statistics are posted here:

http://www.fbi.gov/ucr/hc2007/table_03.htm

we already have laws against menacing, harrassment, and incitement. why would we need additional hate crime laws?

@141 perhaps parse misunderstands the meaning of “abhorrence” here:

if the reason for treating these offenses more seriously is to demonstrate official abhorrence of racism, then they really are thought crimes, aren’t they?

It’s not that the thoughts of the criminal are abhorred, it’s that the *crimes* (based on those prejudices) are abhorred–the government needs to take extra measures to ensure that the public realizes that these offenses (hate crimes) will be scrupulously investigated and punished just like the others. Maybe “repudiate” would be a better word here than “abhor”?

Examples have been given (and you could find many, many more) where hate crimes are consistently given a wink and a nod by the authorities, so the expectation that a hate crime will *not* be taken as seriously as other crimes is not even irrational, it is actually backed up by experience. (Although I don’t concede that this is a necessary condition for hate crime laws.)

The life sentences given to Matthew Shepard’s killers may be an effective deterrent against similar crimes, but that is only because of all of the attention, including the effort to write hate crime legislation, that followed. There are many other hate-motivated killings of gay men that were scrupulously investigated and prosecuted, which none of us has heard of, which have no deterrent value to somebody who thinks they can get away with killing a gay man “because, you know, they’re perverts.” But even then, it took somebody getting killed. If there were well-publicized hate crimes laws on the books, the deterrent would be there before anyone even commits a crime and gets punished.

You could argue that a more fair response to this state of affairs would be some kind of public information campaign, to the effect of, “gay people are protected by the law too”, but it’s hard for me to see how that message could be delivered without reaffirming the initial prejudice (or the initial uncertainty) that gay people aren’t necessarily as protected by the law.

Besides which a hate crime legislation approach has the additional logical justification that some hate crimes are an act of intimidation, a kind of terrorism, so there really is something real to punish other than the act of murder/vandalism/whatever, and that by itself needs to be addressed.

The anti-terrorism aspect of the laws might be less important in most places in the U.S. right now to protect victims of sexual identity-related hate crimes than it would be to protect ethnic/religious hate crimes. Because ethnicity (and in some cases religion) is (here, now) usually easier to guess at a distance, in public spaces, than sexual orientation, so there is more of a fighting over public space dimension to those crimes.

At any rate, I’m not a lawyer or legal scholar, it doesn’t seem at all important to me to find a strong unifying principle that justifies all hate crime laws, as long as the laws don’t violate any other legal principles. Because (or rather, assuming that) individually, the laws make sense and will prevent some particular harm.

Henri, my point (or part of it) is that I don’t understand the defining of discriminated-against groups in the racists’ terms as being, in the places where discrimination is occurring and by the people doing the unacceptable discriminating. Maybe something your argument applies to is happening in some other country (Canada?), or maybe the argument is entirely academic, as the saying goes. There’s a point past which sheer logical argument becomes counterproductive (though I hesitate to say it in a philosopher’s thread). Again: what you say makes sense to me given I stipulate certain premises, which I would prefer not to do, given that I don’t know what in your experience causes you to assume them, or for that matter where they lead.

Regarding your @122: There were some (I’d have to check exactly who but can do it if you’d like) who did argue in the 1950s and 1960s in America that attempting to integrate US schools in both South and North would result in increased prejudice–and (for what I consider bad reasons) that such integration would in itself be bad for African-American children. The evidence does not bear their assertions out and in retrospect, they look clueless.

Parse, you are jnust repeating the same argument that John refuted in his orginal post, I think. To be quite honest I think this ‘thought crime’ thing is extremely stupid and I[m not going to argue about it any longer.

@146, school integration affirms the equality, universality. That’s good. But something like, for example, racial quotas – that’s a different story.

to blacks represented more than 18% of known hate crimes offenders. I believe African Americans represent about 14% of the population.

This is an oddly chosen comparison, given that for whatever socioeconomic and racist-policing-related reasons, African Americans are overrepresented as criminal defendants with respect to their representation in the population generally. Wouldn’t you want to see whether the percentage of hate crimes committed by African Americans was greater or lesser than the percentage of non-hate crimes committed by African Americans before concluding that the laws were being enforced selectively against African Americans?

Wouldn’t you want to see whether the percentage of hate crimes committed by African Americans was greater or lesser than the percentage of non-hate crimes committed by African Americans before concluding that the laws were being enforced selectively against African Americans?

Not if you’re already convinced that the overrepresentation of African-American defendants is *itself* the results of selective enforcement. Then the fact that hate crimes defendants reflect defendants in general (not society in general) would just be a consequence of the fact that AAs are more likely to be prosecuted for *everything*.

ISTM, though, that this attitude leads inexorably to vigilantism or anarchy. If the institutions of government are *inevitably* self-serving and acting in bad faith, then there’s nothing to do but write off the whole government. Rape laws were used to “justify” lynchings but that doesn’t mean we should have repealed them, but rather, that we should have cleaned up their enforcement.

So the argument appears to be that because all laws in America in their practical enforcement disproportionately penalise African Americans The Left ™ ought to oppose any legal reform that creates new crimes or causes penalties to be made stricter, even (or perhaps especially) when more-or-less expressly intended to protect African Americans.

This is a bit like arguing that because the police are generally biased against women feminists should oppose any reforms to domestic violence laws which might cause them to become more punitive. And also, you know, I saw this documentary where this one woman was accused of assaulting her husband so laws against domestic violence only make women worse off anyhow…

I said a law that seeks to express official abhorrence of racism as an attitude created a thought crime.

Well, it doesn’t.

God, this is annoying.

my original post about the disproportionate representation of African-Americans among those prosecuted for hate crimes was a response to a specific claim: that while hate-crime laws might well not do any good, they don’t cause any particular harm.

Who do you think made such a ridiculous claim?

Given that engels pressed me for evidence of particular harm caused by hate-crime laws, now might be a good time to ask if anyone has evidence they’ve done any particular good.

No, it’s time for you to provide some sort of evidence that eg. laws against racially aggravated assault have been on balance a bad thing for African Americans.

If racism is officially abhorred, why shouldn’t it be punished for itself, instead of only for it’s expression in behavior that is already criminal?

Because… drumroll… that would be legislating to create a thought crime, ie. a crime which one can commit merely by thinking the wrong thing, without doing anything wrong.

@147

I should have been more explicit. There are two situations that the laws could address:

1- Perps believed that the law effectively didn’t protect certain victims, perhaps because they could claim they are in some sense threatened by the victims (a gay or transgendered victim “provoking” them; a Muslim or black man is seen as a part of a social threat, that “everybody knows we need to do something about”). They hold this belief *even though the laws are, in fact, enforced*.

Situation #1 is due to the perps’ prejudices about the victims, which can be long-existing historical prejudices, or relatively new ones created largely by right-wing radio & TV (not really a hypothetical at this point, that *is* a major factor encouraging these prejudices). The prejudice itself isn’t a crime, the problem is that it interferes with their being aware of and responding to the incentive system that the law produces, and for that reason the law needs to recognize it as a factor.

2- Perps believe the law doesn’t protect certain victims, based on experience (lynch mobs carried out lynchings in the past, and got away with it).

Situation #2 is due to the perps’ prejudices but also verified by experience.

Situation #1 may not be fixed by merely enforcing the law. Hate criminals may think no jury will convict them because they believe the victim is hated by society (and their social circle or choice of media may encourage this belief).

In this case, which I think is a pretty good description of some actual situations laws are meant to address, I don’t think the harsher punishments are for the purpose of encourager les autres, at least as I understand the phrase, because people effectively misunderstand the law. I’m not sure what legal principles would apply to this situation, and, were it not for the terroristic aspect of hate crimes, it certainly seems like a cludge to pass additionally harsh laws just to make people aware of the law, but I think people tend to prefer this approach because they intuitively recognize that there isn’t really a better one. And then there are other reasonings based on more stylized models of how hate crimes occur and what they are (e.g. hate crimes as intimidation) that seem to be legally sound (that, at worst, “walk a fine line”) that can be applied as well. At least that seems to me to be what people are really doing by promoting these laws.

Parse, I take it that what you object to is the idea that the state should express disapproval, or seek to undermine, certain attitudes which is deems reprehensible, eg. racism. As I said, it’s a controversial issue. There would be room for discussion about it. The problem is that the way you present your arguments is very confused and you keep dragging up this hackish, shockjock BS about ‘thought crimes’. Also, your tone is extremely patronising and annoying, you keep misattributing to me obviously silly beliefs that I do not have, and you seem to prefer to ask endless questions to adducing evidence or making substantive arguments of your own. And when you do make arguments they are transparently very weak, eg. the implication in your last post that it is reason enough to oppose a law that it will predictably cause some harm to somebody and that because 18% of hate crimes convictions are African Americans (compared to 14% of the population but compared to iirc 45% of offenders serving time for drugs convictions) these laws ought to be repealed, even though you have no reason for thinking that they are not effective in their primary stated purpose of deterring racist attacks which, as Marc points out, have a long and rather ghastly history in the US of which African Americans have overwhelmingly been the victims.

Finally, the justification that I mentioned, that seems to have offended you so immensely, that the laws might be taken to express an official abhorrence of racism, isn’t one that has to be given by defenders of these laws. Everybody else who has defended them has given different, more pragmatic and conservative reasons. I acknowledged that it is controversial. I mentioned it because I thought it was an interesting line of thought to consider. But obviously that was a foolish thing to do here if people aren’t interested in exploring interesting sounding ideas in good faith but in trying to stamp out, by all means necessary, what you appear to think are thought crimes ‘thought crimes’ against the American constitutional religion of liberal neutraliy.

“2, I do think an attempt to express official abhorrence for racism through criminal statutes would create a class of thought crimes.”

A thought not expressed is unknown, and as The Don taught us, we know there are many of those. Expressing is an action. As more or less stated prior, all this is about addressing the flaw we [but not just US alone] glaringly have had, and do have, with an unequal enforcement of our laws. Should we need this kind of imposition, no, but if our history is any judge it’s difficult to see how we could not have it for most foreseeable futures.

The argument that the only purpose of laws against ‘hate crimes’ is to ensure equal treatment by the police under existing laws appears to be very US-centric. Many other countries have similar laws but not the division between local and federal enforcement that this would hinge on.

Also, for an interesting perspective you might compare with the Brazilian constitution:

XLI – a lei punirá qualquer discriminação atentatória dos direitos e liberdades fundamentais; The Law will punish all discrimination against fundamental rights and liberties.

XLII – a prática do racismo constitui crime inafiançável e imprescritível, sujeito à pena de reclusão, nos termos da lei; The practice of racism constitutes a crime not subject to bail, punishable by imprisonment, according to the terms of the Law.

Do you think it is natural to take these constitutional articles to express official disapproval of racism? Since they criminalise ‘the practice of racism’ do they create ‘thought crimes’?

I’m willing to consider evidence that it has, but I wouldn’t concede, absent such evidence, that hate-crime laws have provided any benefit

Do you adopt this epistemological strategy when considering legislation in general? Eg. would you refuse to concede that a law against illegal parking has any effect in discouraging illegal parking unless someone presents you with concrete evidence that it has done so?

I think any scheme to award them additional power has a very high potential for abuse, and I think the disproportionate representation of African-Americans among hate-crime offenders is evidence of such abuse.

So if there is evidence that any law is being abused, or that African-Americans are disproportionately represented among offenders, you consider that sufficient reason to call for its repeal?

I do think an attempt to express official abhorrence for racism through criminal statutes would create a class of thought crimes.

Why do you think this? |On the face of it, it doesn’t seem to make a lot of sense.

@167

No, I don’t think that people would expect the homeless and illegal immigrants to be un-protected by the law. They might expect them to get less protection, but not in the way they might think that their attack on somebody they consider truly abhorrent is justified because they are so truly incredibly abhorrent that “isn’t it obvious, nobody would punish me for this!” It’s a particular, manic mindset, different from somebody opportunistically preying on the homeless or undocumented.

Anyway, I’m speculating here, I don’t know if that’s exactly what would go through many hate crime-perpetrators’ heads, but I think it’s one more facet, in addition to the terrorizing aspect of hate crimes, and official abhorrence of racism.