Thought Crime and Mens Rea

by John Holbo on October 14, 2009

Steve Benen ponders John Boehner on hate crimes: “The Democrats’ ‘thought crimes’ legislation … places a higher value on some lives than others. Republicans believe that all lives are created equal, and should be defended with equal vigilance.” Benen: “if Boehner doesn’t want to consider the circumstances behind a violent crime, and doesn’t want to pursue “thought crimes,” then he’d necessarily reject the rationale behind every hate-crime law, right?” Benen goes on to note that, apparently, Boehner does not. He “supports existing federal protections … based on immutable characteristics.” Which Boehner thinks include religion, but not sexual orientation. Who knew?

There is, I think, an even more basic problem, which is theoretically interesting, which I would certainly like to see used to swat down Boehner-style arguments, and which I’ve never actually seen anyone make (but probably I just missed it). Practically all crime is ‘thought crime’ in the good ol’ common law sense of the Latin phrase actus non facit reum nisi mens sit rea – ‘the act does not make guilt unless the mind be guilty.’ If we were to take a strict liability approach to all violent crime we would be obliged to place wrongful death on a par with premeditated murder. (After all, it’s not as though the lives of those killed accidentally are worth less.)

This refutes the notion that there is something sinister and Orwellian about post-Drakonic/post-Hammurabian developments in criminal law. (Damn liberals and their newfangled political correctness!) It doesn’t follow that ‘hate crime’ legislation makes moral and practical sense, of course. We could have that discussion after Boehner is done looking up ‘immutable’ in the dictionary.

{ 172 comments }

1

jc 10.14.09 at 2:40 pm

The obvious difference between common law mens rea and hate-crime laws is that hate crime laws view intent based not on the crime that the person intended to commit, but rather on their motives for intending to commit that crime.
Under common law, if you kill someone because they’re black, or you kill them because you don’t like them, you suffer the same punishment as long as you intended to kill them. This distinction in the law seems pretty basic to me; I don’t understand how you could swat down any argument against hate crimes laws with it.

2

nolo 10.14.09 at 2:43 pm

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.

3

kid bitzer 10.14.09 at 2:46 pm

i think the wiki translation (“the act does not make a person guilty…”) gets “reum” right: i.e. it is an adjective, modifying a noun supplied for the accused, rather than a noun meaning “guilt” in the abstract. but i defer to latinists.

on to more important things. 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?” so, e.g., did i know that flipping that switch (as i did) would kill the victim, or was i unaware that the flipping would be a killing? did i know that accepting the stereo from my friend (as i did) would be a receiving of stolen goods, or was i unaware that the accepting would be a receiving of stolen goods?

however, 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. the more detailed ascertainment of motive may play some other evidentiary roles, but for mens rea it is sufficient that i knew that what i was doing was a killing or a receiving.

the question your proposal raises, then, is whether we can draw a line between the thoughts that have traditionally gone into mens rea, and the thoughts that are now included in thought-crime laws. i am inclined to think that a line can be drawn, along the lines just suggested. we have always criminalized the intention to commit a crime, i.e. the knowledge that the act performed was a criminal act. but we have not criminalized any one motive for it more than another.

(of course, if we *were* to create a crime of killing-people-because-they-are-gay, then the traditional question of mens rea, applied to this case, would have to delve into whether the accused knew that what they were doing was killing-someone-because-he-was-gay. but that epicycle arises *after* we have become convinced that thought-crime laws are legitimate, and cannot justify their legitimacy beforehand).

of course, all of this is irrelevant to boehner’s idiocy if he is willing to countenance thought-crime laws related to race, gender, religion, etc., but not related to sexual orientation. then he is just a prat.

4

Jacob T. Levy 10.14.09 at 2:50 pm

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.

5

John Holbo 10.14.09 at 2:59 pm

“we have always criminalized the intention to commit a crime, i.e. the knowledge that the act performed was a criminal act. but we have not criminalized any one motive for it more than another.”

But hasn’t this distinction been made in the penalty phase? (That is, it hasn’t just played an evidentiary role?) Some particularly heinous mental attitudes can be punished more severely than others?

6

Ginger Yellow 10.14.09 at 3:00 pm

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

7

kid bitzer 10.14.09 at 3:02 pm

i believe that motives are sometimes taken into consideration at sentencing phase, yes.

but that’s an entirely different issue from mens rea. to say, “hate-crime laws are nothing new; we have always taken motives into consideration at the sentencing phase,” is a very different argument from saying “hate-crime laws are nothing new; the doctrine of mens rea shows that thought has always been of the essence in crime.”

so that’s an argument for a different post, it seems to me.

8

John Holbo 10.14.09 at 3:04 pm

Yeah, I kinda guessed I was reinventing several people’s wheel. But I’ve never seen the argument made in the popular press, or in a journalistic context. Boehner’s argument that ‘hate crime’ must be ‘thought crime’ and we can’t have ‘thought crime’ gets a lot of play, by contrast.

9

Chris Dornan 10.14.09 at 3:05 pm

John, I think you will find that all ethics (Butler identified this in his dissertation on virtue, but I am not sure ho many people noticed) and just about all law comes down to intention. There is a twist that the experimental philosophers noticed in that when you do something with -ve externalities, even if unintended, then law (rightly, of course) classifies the destructive side effects as intentional and the miscreant therefore culpable.

A thought crime becomes a thought crime when the crime is entirely confined to thought. This really is sinister, of course. But there is nothing especially unusual about intention being assessed in determining guilt or innocence–it is what the law does.

That doesn’t make every proposition for legislation wise, of course. I think laws that discourage the inciting of hatred are valuable, and increasingly relevant in an age where mass communications are so prevalent and accessible. I doubt if hateful speech is something you can otherwise legislate for but I suspect Boehner is attacking strawmen.

10

Chris 10.14.09 at 3:08 pm

@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.

11

John Holbo 10.14.09 at 3:11 pm

“but that’s an entirely different issue from mens rea. to say, “hate-crime laws are nothing new; we have always taken motives into consideration at the sentencing phase,” is a very different argument from saying “hate-crime laws are nothing new; the doctrine of mens rea shows that thought has always been of the essence in crime.”

so that’s an argument for a different post, it seems to me.”

You are right, kid bitzer. I am collapsing the two legal levels. But I think the collapse does correspond to something at the moral level. (Of course, saying that doesn’t carry a lot of legal weight, I appreciate.) The reason why we approve the doctrine of ‘bad intent’ is the same reason why we approve more severe sentencing for ‘really bad intent’. So if we don’t think there is some special legal barrier to this kind of legislation, there is no special moral problem with it. The moral impulses behind it are already fully in force in the legal system as it stands. (I’m making this stuff up as I go along. I never really thought it through before.)

Of course, the question remains whether it makes any sense to say that, as a general rule, killing a man because he is gay is wickeder than killing him because you think he might have $50 in his wallet. I am personally inclined to say: no.

12

mpowell 10.14.09 at 3:17 pm

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).

13

John Holbo 10.14.09 at 3:22 pm

Chris makes the point that the circumstances matter, too. If we want to address a pernicious, social problem – say, rampant racist killings – by punishing those who kill with that intent more severely … well, that’s an important possibility. But I think it’s important to notice how complicated our moral reasoning gets at this point. Deterrence is a perfectly fine justification for criminal law. But making an example of someone by punishing him extra (giving him more than we have already decided this crime ‘deserves’) … well, that’s a dicey sort of utilitarian calculation. And it has an additional funny feature, in the present context, that it is not really a ‘thought crime’ sort of approach. It’s a pour encourager les autres approach.

14

rea 10.14.09 at 3:33 pm

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.

15

NECLC 10.14.09 at 3:38 pm

The act is primary.
Intent refers to the intent to perform the act, not its philosophical or moral justification.
The parallel you would want to make to defend hate crimes legislation would be of the use of extenuating circumstances or the commission on an illegal act as a “social” act or an “anti-social” act. Killing your wife’s rapist vs killing someone for being who they are: black, white, or homosexual. That refers more to questions of just punishment. Still, our system is or should be balanced against the state. The accused is presumed innocent not presumed guilty. Better a guilty man free than an innocent man a prisoner.

Yes, by some logic all speech is action, but only some speech is actionable. Law requires that that grey area be made a line, but that line should not privilege the state.

16

CJColucci 10.14.09 at 3:40 pm

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.

17

rea 10.14.09 at 3:53 pm

after Boehner is done looking up ‘immutable’ in the dictionary.

Maybe Boehner is a Calvinist?

18

Aulus Gellius 10.14.09 at 4:13 pm

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.

19

Kaveh 10.14.09 at 4:29 pm

Does anyone ever argue that what makes a hate crime a hate crime is not intent, but an observable display they produce in committing the crime, a display which people of the same ethnicity/religion/orientation as the victim could reasonably interpret as a threat against themselves?

In other words, if Bob the skinhead goes to a mosque and beats up somebody who was praying there, somebody he never met and had no other motive to attack, I think most people would assume Bob did that in order to make a statement. And that statement is to threaten their physical safety. Threats of violence, for example if I called up Bob the skinhead and threatened to beat him up, are already a criminal offense, aren’t they? So couldn’t hate crime laws be understood as extending the definition of physical threats to a well-known category of threats that might not have been clearly covered under laws that govern threats? You could also argue that hate crimes incite others to commit similar crimes. They seem to be a weird combination of threats and incitement.

I think this easily applies to cases like that of Matthew Shepard, even you could demonstrate that the perps were not threatening to kill other gay men themselves, what they did constituted a kind of combined threat + incitement that other people might copy their crime.

20

dsquared 10.14.09 at 4:35 pm

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

21

parse 10.14.09 at 4:41 pm

Where the characterization of “though crime” in relation to hate crime seems useful to me is the means by which it will be demonstrated that a particular act was motivated by a bias against a group of which the victim was a member. In determinations of degree in murder, the limits on which the behavior of the alleged killer outside of the specific violent act which led to the death of the victim is allowed as evidence are more stringent than those in connection with hate-crime laws, both in existing state and the proposed Federal statutes. The proposed Federal legislation last year did include language that “evidence of expression or associations of the defendant may not be introduced as substantive evidence at trial, unless the evidence specifically relates to that offense,” but that stricture has been removed from the current bill.

22

Netbrian 10.14.09 at 4:41 pm

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.

23

John Casey 10.14.09 at 5:05 pm

Pardon the self-promotion, but I think I might have made a similar point a while back:

http://thenonsequitur.com/?s=hate+crimes

24

mpowell 10.14.09 at 5:05 pm

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.

25

praisegod barebones 10.14.09 at 5:25 pm

There’s also such a thing as the criminal law of attempts. (Which requires overt acts, but presumably what makes an overt act an attempt must be something to do with the mental state of the performer)

26

Chris Dornan 10.14.09 at 5:27 pm

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).

27

roac 10.14.09 at 5:42 pm

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

OT but interesting: The historical origin of the murder/manslaughter distinction becomes apparent from a reading of the Icelandic family sagas. In Iceland at the turn of the first millennium, when there were laws but their enforcement was strictly private, there was no moral obloquy attached to killing someone; it fell under the heading of A Man’s Gotta Do What A Man’s Gotta Do, as when the deceased had killed one of your relatives. Having killed him, however, you were morally obligated to make an immediate and public announcement of the fact, so that his relatives could kill you if they could — unless they could be persuaded by influential third parties to accept cash or a cash-equivalent in lieu of their right to revenge.

What was immoral was to kill someone in secret and not announce that you had done it. By doing that, you were depriving the victim’s kin of their rights — in effect, a form of theft, which was uniformly regarded as disgraceful(see Hallgerd in Nials saga). This kind of secret killing was called morð, which is cognate with, and generally translated as, “murder.”

I can’t find anything by a quick Google to confirm my inference (though I can’t possibly be the first one to have thought of it) that, here as in much else, Icelandic tradition preserved something that dates back to a common Germanic heritage whose origins have been lost in English through Christianization. But I would take a lot of convincing that I am wrong.

28

kid bitzer 10.14.09 at 5:46 pm

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

29

Keith 10.14.09 at 6:09 pm

It’s all noise and subterfuge to create a smoke cloud behind which non-lethal abuses of power against targets acceptable to conservatives can still be had. Basically, it lets small town bigot cops harass gays and blacks and latinos and get away with it because “thought crime” is not prosecutable. A Fiery cross on the yard of the home of an immigrant family is thus mere vandalism, whereas the proposed legeslation would make it hate crime.

30

roac 10.14.09 at 6:15 pm

kid b @ 26 — Thanks!

31

roac 10.14.09 at 6:24 pm

Regarding no. 27: Whatever the attitudes of small-town cops may or may not be, cross-burning is a already a federal crime (see 42 U.S.C. 3631 and 18 U.S.C. 241) and is regularly and vigorously prosecuted by the Civil Rights Division of the Department of Justice. The front page of its website shows two examples in the past couple of weeks, here and here. Serious jail time typically follows from conviction.

32

engels 10.14.09 at 6:41 pm

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.

33

engels 10.14.09 at 6:48 pm

(Again

we have always criminalized the intention to commit a crime, i.e. the knowledge that the act performed was a criminal act

is also wrong, I think. In general, to be convicted of a crime there is no need for any knowledge on your part that what you were doing was criminall.)

34

CJColucci 10.14.09 at 7:10 pm

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.

35

Matt 10.14.09 at 7:41 pm

In general, to be convicted of a crime there is no need for any knowledge on your part that what you were doing was criminal.

In most cases, at least, this is right. The “knowledge” element of a crime, at least in most cases, is knowledge that one is doing a certain action, not knowledge that what one was doing was a crime. So, if I see an umbrella that’s not mine, and I take it, the “knowledge” aspect of the crime of theft is that I knew that I was taking an umbrella that wasn’t mine, not that I knew that such umbrella taking was a crime. (If, on the other hand, someone had put their umbrella in my bag while I wasn’t looking, and I took my bag without realizing that I was thereby taking their umbrella, I wouldn’t have committed theft, because I didn’t “knowingly” take the umbrella.)

36

Sebastian 10.14.09 at 7:46 pm

“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).

37

Phil 10.14.09 at 7:53 pm

engels – yes, but I feel as if there ought to be a distinction between mens rea in sentencing and mens rea in determining guilt. IOW, whether you shot the gun intending to wound or intending to aim wide and give the other person a fright is a different question from whether you intended to fire at all. There are people on the defendant’s stand who should be given a just sentence for what they’ve done, but there are also people who should be allowed to go home – and for me the mens rea requirement is more about sorting group B from group A than it is about giving group A the right sentence. (The point here, of course, is that determination-of-guilt mens rea doesn’t have much to do with ‘hate crime’ legislation.)

38

LizardBreath 10.14.09 at 8:07 pm

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).

39

rosmar 10.14.09 at 8:10 pm

Doesn’t most, if not all, hate crime legislation require the “hate” part to be explicit–like someone yelling “Chink” as they smash a bottle over the head of an Asian person? Or someone having told someone ahead of time (or written down) that they were going to go beat up some faggots or something like that?

I do think the effect of crimes aimed at members of a group specifically because of their group membership has different social effects than more “personal” crimes. Knowing someone has been gay-bashed in the neighborhood probably will make many gay people circumscribe their behavior to a degree that knowing someone was mugged in the neighborhood wouldn’t.

I was reading recently about the New York race riot after the Proclamation of 1863. It didn’t take many deaths before most black people in the city started trying to leave. Similarly with the anti-Chinese violence in California during the 19th century–killing or torturing a few people *because they were Chinese* generally sufficed to make all the Chinese people in town leave.

40

kid bitzer 10.14.09 at 8:26 pm

“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.

41

LizardBreath 10.14.09 at 8:41 pm

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.

As I understand it (or, really, remember it from law school) this is exactly it. The hate crime is the message — the underlying crime is an element of it, but not the central thing.

I think in the real-world hate crime situation, you prove intent by the ordinary ‘people are presumed to intend the natural results of their actions’ — 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. Whether or not they desired to intimidate gays, they intentionally acted in a way that they knew would intimidate gays, so they intended to intimidate.

42

parse 10.14.09 at 8:47 pm

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.

43

rosmar 10.14.09 at 8:51 pm

African Americans are charged with nearly every crime disproportionately to their representation in the population, so I don’t see why that would be an argument against hate crimes legislation in particular.

44

SusanC 10.14.09 at 9:00 pm

(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.

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parse 10.14.09 at 9:08 pm

rosmar, it’s not an argument against hate crimes legislation in particular. What I meant to suggest that criminal laws, which are written with the intention of treating all citizen equally, are frequently employed by police and prosecutors in ways which cause particular harms to particular classes of people–most often, the same people that hate crimes legislation is ostensibly designed to protect. What the early statistics from New Jersey suggested to me is not only are hate crimes laws capable of being (mis)used in exactly the same fashion, but there’s considerable evidence that they have actually been used that way.

It has traditionally been conservatives who make political hay out of demands for law and order, but hate-crimes legislation has had the unfortunate effect of creating “tough on crime” liberals who endorse longer sentences. No doubt the powerful corrections officers union in California finds a lot to like in hate-crime laws.

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Kaveh 10.14.09 at 9:35 pm

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.

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parse 10.14.09 at 9:45 pm

Kaveh, I don’t know who the victims of the hate crimes were in the New Jersey cases. It would be interesting to make the argument that white people need special protection from bias attacks from African Americans and see if the liberal supporters of hate-crime laws were willing to get on board that particular band wagon. We have Megan’s Law; maybe we need Nat Turner’s Law as well.

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evil is evil 10.14.09 at 9:48 pm

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

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rosmar 10.14.09 at 10:04 pm

Hate crimes legislation isn’t written like “against blacks, against Latinos,” etc. It is written more like “based on race, religion,” etc. So a crime against whites would already count.

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John Quiggin 10.14.09 at 10:11 pm

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.

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leederick 10.14.09 at 10:45 pm

“The Democrats’ ‘thought crimes’ legislation … places a higher value on some lives than others. Republicans believe that all lives are created equal, and should be defended with equal vigilance.”

I think this is correct. The relevant observation is that politicians could have decided to make all crimes aimed at members of a group in order to intimidate members of that group hate crimes, but they didn’t. That’s not an accident. They 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.

Crimes against people whose groups are on the list are punished more heavily than people left off it – even through the motivations may be the same – just because some groups are thought deserving of protection and others aren’t. If you get beaten up because people don’t think Catholics/Blacks/gays have any business entering particular neighbourhoods: that’s a hate crime. If you get beaten up because people don’t want Man United fans/hippies/marxists/women/S&M enthusiasts entering particular neighbourhoods: that’s not a hate crime.

“This refutes the notion that there is something sinister and Orwellian about post-Drakonic/post-Hammurabian developments in criminal law.”

I don’t think it does. The fact is the mens rea and action may be identical: you beat someone up because you wanted to intimidate a particular group. But for some groups it’s a hate crime, for others it isn’t, largely because some groups are thought to be more worthy than others. If you feel intimidated because you’re X that’s terrible, if you feel intimidated because you’re Y that’s tough. What makes it really sinister is that this is more-or-less accepted, and the argument now is really just a factional squable about where the deserving/undeserving line is drawn.

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parse 10.14.09 at 11:20 pm

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.

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Mario Diana 10.14.09 at 11:39 pm

rosmar @ 39

Doesn’t most, if not all, hate crime legislation require the “hate” part to be explicit—like someone yelling “Chink” as they smash a bottle over the head of an Asian person?

I’m with you that this is the general understanding of how hate laws work. But, doesn’t this point out the problem concerning hate laws? If we imagine two people getting into an altercation, doesn’t it just make sense that such epithets will be included as part of the taunting that goes along with run-of-the-mill street violence, and yet not point to some sort of “attack or intended intimidation” on an entire community?

If two “bar patrons” (and I’m being polite, here) come to blows, I don’t think it would be completely out-of-the-ordinary to hear one or both of them use some colorful language — as distasteful as that may be. But, I wouldn’t jump to the conclusion that there was some kind of program or intended pogrom behind it, or that whatever was said was necessarily a clue as to what the fight was all about.

But, then again, I’m not an ambitious prosecutor looking to make my bones.

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bad Jim 10.14.09 at 11:47 pm

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.

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drscroogemcduck 10.14.09 at 11:55 pm

That’s not an accident. They 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 think if hate crime legislation was extended to all groups there might be some unfortunate side effects like G12 rioters getting stiffer penalties because they are engaging in intimidation against another group.

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parse 10.15.09 at 12:49 am

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?

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lemuel pitkin 10.15.09 at 1:58 am

What I meant to suggest that criminal laws, which are written with the intention of treating all citizen equally, are frequently employed by police and prosecutors in ways which cause particular harms to particular classes of people—most often, the same people that hate crimes legislation is ostensibly designed to protect.

Who are hate crimes meant to protect, tho? and who should they be?

Today, the obstacles to full equality for African-Americans are largely institutional, operating through the labor and housing markets and the legal system. Private acts of violence and intimidation are no longer the main way racism works in this country, so hate crime law and similar measures won’t do anything to combat it.

But for sexual minorities, among others, individual acts of harassment and violence really are a major obstacle to equality — there’s a reason why a lot of gay-rights groups make school bullying one of their top issues. That’s the kind of problem which measures like hate crime laws can help solve.

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. Of course for African-American kids, the problem isn’t — now — bullying and harassment, but a hyper-segregated, inequitably funded public school system. And it’s quite true that hate crimes laws don’t do anything about that.

Different kinds of inequality and exclusion are reproduced in different ways, so different strategies are needed to address them. Is that so strange?

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John Holbo 10.15.09 at 2:05 am

leederick, you seem to be willing actually to affirm what I thought would be generally regarded as an unpalatable consequence: namely, that post-Hammurabian developments in criminal law have indeed been an Orwellian mistake from the ancient get-go and we should return to a strict liability model that pays no attention to intention. So murder and wrongful/accidental death should in fact NOT be distinguished, because it’s wrong to think that one life is worth more than the other? Are you willing to affirm this?

Because if you are NOT willing to affirm this, 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. And if you accept that, then you ought to have no problem in principle with legislation of this general shape. (It isn’t, per se, some bizarre new melding of thought and act, as you suggest.) You just don’t happen to think that the specific judgment that these sorts of crimes are worse, and deserving of more severe punishment, makes moral sense for quite independent reasons. But that’s a different issue.

The point about intimidation vs. hate is crucial and very knotty. There is no question that, as a general rule, if you commit an act that causes more harm to the community, it is presumptively reasonable to punish acts like that more severely. Two guys walk into a bar and have a fight. It’s basically just between them. Guy walks into a bar and bashes someone he thinks is gay and a whole group feels increasingly threatened. You punish the latter crime more severely because it’s more harmful. Whether you think this sounds like a good idea or not, it is not a ‘thought’ crime, even though it is a thought that caused the more diffuse harm. The punishment can correctly be said to target harms, although it does so by tracking thoughts.

But this general model of holding individual actors differentially responsible for basically similar actions (and not clearly differentially reprehensible mental states) on the basis of some more general judgment of harm through diffuse intimidation is problematic. Suppose the case is this. Two communities – black and white – have somewhat tense relations. There is rising crime in the white neighborhood because, for whatever reason, more blacks are coming into the white neighborhood to commit crime than in the past. (Let’s stipulate that this is true, not just a paranoid fantasy on the part of the whites.) Now: two cases. White kid from the neighborhood robs and kills a little old white lady. Black kid from the next neighborhood comes over and robs and kills a little old white lady. The white community will be more intimidated by the latter case because they will see it as part of an overall, threatening trend. Whereas the former case will be regarded as an isolated tragedy. The latter case will make all the little old white ladies sit home every night in fear, bemoaning the loss of their safe neighborhood, whereas the former case will not. So in a certain sense, the black kid’s crime causes more harm. Should the black kid be punished more severely than the white kid? He has, to repeat, caused more harm, because he has caused more fear. And the fear is not unreasonable, in the sense that it is predictable and based on actual facts about crimes committed. We don’t need to stipulate that all the whites is this community are wonders of color-blindness who are only anxious about black crime because they have rationally studied the numbers. That would be confusingly unrealistic, if this hypothetical is supposed to take place somewhere in America. But even a wonderfully racial-animus free white resident would predictably be made more anxious by news of a black-on-white crime than by news of a white-on-white crime, so the intimidation effect would exist even in the absence of white racism (even though, again, it’s dubious to suppose it away entirely). So – to get to the punchline – the black kid is going to meet LB’s threshold for ‘hate crime’ intimidation. Which shows why it’s such a misnomer. He doesn’t need to hate white people. Let’s stipulate that he just wanted the money. And white people don’t need to hate him (not because he’s black anyway). But he has done something that will, predictably, intimidate white people as a group in this neighborhood. Yet we think there’s something problematic about punishing the black kid more severely, just because overall sociological trends make his act more intimidating, ergo harmful, to the community. (The case is actually somewhat analogous to disparate sentencing for cocaine and crack, on grounds of differential social harm. There again, it is rather preposterous to suppose the impulse to disparate sentencing is colorblind. Yet there might still be a genuine difference you can point to in terms of harm. Poor people on crack more intimidating than rich people on coke.)

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.

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Kenny Easwaran 10.15.09 at 2:29 am

Given how easy it was for the media to convince the public that Henry Louis Gates and Barack Obama were the racists (and not Crowley or the Republicans talking about the incident) it definitely shouldn’t be especially surprising if members of minority groups are more often convicted of hate crimes against the majority, even though the laws may be intended to work in the other direction.

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parse 10.15.09 at 2:30 am

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 .

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Yarrow 10.15.09 at 5:36 am

unfortunate side effects like G12 rioters getting stiffer penalties because they are engaging in intimidation against another group.

Naw, assaulting a police officer’s club with your head is already a felony.

But arresting riot cops for engaging in intimidation — that could work. (Dunno who’d make the pinch, though.)

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lemuel pitkin 10.15.09 at 5:37 am

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?

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Matt Austern 10.15.09 at 5:44 am

Possibly a digression, but… Most of the examples in this discussion have involved murder. It’s worth remembering that this distinction applies to lesser offenses too, and that it’s probably more relevant for lesser offenses.

I’d be upset if someone spraypainted my house or set fire to some trash on my front lawn. I’d be more upset, and possibly afraid for my life, if someone spraypainted a swastika on my front door and burned a cross on my front lawn. That difference — a purely symbolic difference, in the most literal sense — is what would make it a much worse crime than vandalism. That’s what would make it a hate crime.

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Kaveh 10.15.09 at 5:52 am

@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.

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John Holbo 10.15.09 at 6:59 am

“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.”

I think this is basically right, but it’s a surprisingly fine line. You have to distinguish between people who anticipate a more diffusely threatening or intimidating effect of their actions (or could reasonably be expected to) and people who intend that effect, perhaps only in a secondary sort of way. In practice, I don’t think it’s so hard to TELL the difference, but it turns out to be a bit subtle. An instance of the doctrine of double-effect, in effect.

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parse 10.15.09 at 11:45 am

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.

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Salient 10.15.09 at 12:20 pm

Thanks for sharing that, parse. I’ll have to give some thought to the correlation you’ve hypothesized, which on its face makes sense.

I wish we could collectively rename ‘hate crime’ to ‘intimidation crime’ or even, yes, ‘terrorism.’ I don’t care, and neither does anyone else, whether or not it’s hate that motivates a so-called ‘hate crime.’ What we care about is the chilling intimidating effects of the crime. Hate crime has a damaging effect on the community subjected to it and therefore on the state as a whole. That’s the rationale for harsher penalties than purely personal crime against an individual, with no chilling residual. This has been said before, surely many times, but it’s worth emphasizing:

If any crime can appropriately be called terrorism, in the undiluted literal sense of the word, it’s the incidents we currently call ‘hate crime.’

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Salient 10.15.09 at 12:29 pm

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.)

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Ceri B. 10.15.09 at 12:45 pm

I have long been in favor of wide-ranging hate crime laws, but I’m feeling productively challenged to re-think by the Sylva Rivera Law Project, who provide legal services for poor trans, intersexed, and otherwise non-gender-conforming people. The crux of their argument, linked to because they’re better advocates than I am, is that American prisons are awful enough and American justice biased enough that putting more people in prison for longer does our society more harm than good. I find it persuasive, since I agree with them on the awfulness of being incarcerated in America, and having such a swollen and swelling prison-industrial system.

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engels 10.15.09 at 12:46 pm

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.

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alex 10.15.09 at 1:01 pm

“lesbian wolf pack”

Band name!

Sorry, I’ll get me coat…

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engels 10.15.09 at 1:09 pm

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.

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bianca steele 10.15.09 at 1:20 pm

I’m surprised no one has mentioned the “policy” word–maybe because it suggests the “social engineering” word. We have a policy to protect, affirmatively, the civil rights of long discriminated-against groups. We don’t have an official policy to eliminate the kind of private aggressiveness that gives rise to bar fights.

In order to protect the civil rights of certain groups, we have a policy to suppress the antisocial, organized or sporadic actions of those who have long committed violence against those groups, in violation of the law and in violation of the custom of the majority.

It’s probably not surprising that police who have been targeting the LGBT community might find hate crimes simply another tool for their purpose. I wonder whether this is the only use to which the law is put.

It’s probably not surprising, either, that police who have been trying to suppress gang violence might try to use hate crimes laws for this purpose. I think this is wrong, though. The kind of hatred Jets have for Sharks isn’t the kind of hatred these laws are intended to prevent. Street gangs are not blackshirts in the making. It might be different if, for example (and sorry), the really huge problem in all levels of our society were “gang warfare” between Illuminati, Opus Dei, and Freemasons, causing enormous social problems. It would be just as wrong to use anti-gang measures to try to suppress private acts of aggression under the theory that they’re in some sense similar.

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bianca steele 10.15.09 at 1:20 pm

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

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LizardBreath 10.15.09 at 1:35 pm

I am really very doubtful about what Lizardbreath says in #38 (and which everybody else who commented seems to assume is correct).

I was (as I noted in 38) lazily working off memories of law school, without checking particular statutes. The problem with opining on US law is that there are 51 legislatures, if you limit it to the states and Congress and don’t worry about things like city councils, and so ‘hate crimes’ can mean different things in different states — I think (still haven’t checked) that there are some statutes that work as I described. But the reasoning I set forth makes it clear that it’s at least possible to draft a statute addressing hate crimes without worrying about questions of motivation rather than the questions of intent common to all criminal law.

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LizardBreath 10.15.09 at 1:43 pm

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.

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roac 10.15.09 at 1:52 pm

I wonder if there has ever before been a documented example of a blog discussion changing someone’s mind about an issue. Having paid desultory attention to this over the years, I was more or less where CJ Colucci was, way upthread: being familiar at one remove with the current mechanism for prosecuting cross-burnings and the like, I don’t see any particular need for hate crime laws, but if they give historically-underdog groups a feeling that they have some power to bring society and the state around to their side, then why not?

Other commenters, however, have focused my attention to what these laws, as exemplified by the one at Salient’s link, actually do, which is to put new power and new bargaining tools in the hands of police and prosecutors.

So I now suggest that supporters of these laws ask themselves these questions: Do you think that the police, in general and where you live, are favorably disposed toward gay people, black people, or whomever? Do you think prosecutors don’t have enough discretionary power as things stand?

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parse 10.15.09 at 2:00 pm

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.

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Marc 10.15.09 at 2:01 pm

There is an odd form of historical amnesia in this discussion, similar to ones about affirmative action which behave as if the present is a blank slate. Public violence motivated by ethnic hatred has a real history and a deadly impact. In the American South, for example, until the 1940s a white man accused of rape or murder typically got a trial and a black man accused of the same frequently got slowly tortured to death in front of an enthusiastic crowd. Members of the crowd made postcards and sent them out as souvenirs. Listen carefully to the lyrics of the Billie Holiday tune “Strange Fruit”. Anti-lynching laws were fiercely opposed by people like Strom Thurmond. The past isn’t really past.

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Ceri B. 10.15.09 at 2:03 pm

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.

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LizardBreath 10.15.09 at 2:17 pm

78: I don’t think that’s an important distinction — the point I was going for is that you can draft a hate crimes law so as to rely only on intent rather than motivation so long the intent to intimidate is the hate crime, rather than whether the target of the intimidation has to be the same as the target of the underlying crime (using murder as my example made it necessary to bring in third parties as targets of the intimidation, because you can’t intimidate someone by killing them.) But try Michigan, which doesn’t specify that the intimidating conduct has to be directed against the target of the intimidation (that is, that you can intimidate person A by defacing person B’s property.)

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parse 10.15.09 at 2:25 pm

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.

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Salient 10.15.09 at 2:44 pm

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 evidence that the crime is not singular and is likely to be repeated against other members of a community.

I changed the wording to pull it more in line with what I’d support. 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.

I would argue intention ought to operate in reverse, as a mitigating factor! If you can demonstrate^1^ that you specifically intended to harm the individual you harmed, not because of their belonging to a specific community but because of what they said or did as an individual, that ought to remove the possibility of the act being tried as a terroristic crime.

^1^I really only mean, if you can raise any reasonable doubt of the opposite.

84

Salient 10.15.09 at 2:55 pm

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.

85

LizardBreath 10.15.09 at 2:59 pm

82: 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.

This stuff is really slippery to talk about, but I think that’s still intent: what you actually intended to do — rather than motive: why you wanted to do it. Intimidating Vietnamese people, or Presbyterians, is a crime in a state with a statute like the ones described, and intimidating gay people isn’t. But the crime doesn’t depend how you feel about Vietnamese people, only on how you act toward them — if you like Vietnamese people fine, but want to join a gang for other reasons that demands that you engage in anti-Vietnamese violence, you commit hate crimes by this definition when you intimidate Vietnamese people by means of violence.

The fact that some classifications (race, gender, national origin) are protected, and others aren’t (sexual orientation, political affiliation) may be a problem (I’d say the failure to protect sexual orientation is a problem, political affiliation probably isn’t), but it isn’t the same problem as a law that addresses motive rather than intent.

86

parse 10.15.09 at 3:00 pm

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?

87

LizardBreath 10.15.09 at 3:03 pm

Under Salient’s definition, that’d unambiguously qualify for the sentencing enhancement.

88

Salient 10.15.09 at 3:03 pm

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.

89

Salient 10.15.09 at 3:04 pm

No no no

Not arbitrary targeting of a group

Arbitrary targeting of a member of a group by which I mean “targeting so-and-so just because so-and-so is member of group X”

90

Salient 10.15.09 at 3:08 pm

…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.)

91

Salient 10.15.09 at 3:10 pm

No, wait. What am I saying. Gah.

Ignore everything I’ve said for the last two comments and go with what LizardBreath said.

My apologies. I’m not thinking about what I’m saying.

92

engels 10.15.09 at 3:10 pm

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.

93

engels 10.15.09 at 3:34 pm

Part of the problem is that people here seem to have just assumed that the purpose of hate crime laws is to combat (conscious) ‘terrorism’. They then move straight on to advocating for a law that combats this ‘terrorism’ directly. But it’s not at all clear either that this really is the (only) purpose, or that this would be better served by a more direct approach. In fact I don’t think that ‘hate crime’ and ‘terrorism’ really have much to do with each other.

Pace John I am inclined to think that there is something morally worse about being murdered because of you are black, say, than because, say, the killer wanted your money.

94

roac 10.15.09 at 3:55 pm

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.

95

parse 10.15.09 at 3:55 pm

Pace John I am inclined to think that there is something morally worse about being murdered because of you are black, say, than because, say, the killer wanted your money.

Could you tease out what it is that is morally worse about being murdered because you are black than because the killer wanted your money? And could you say something about how easy you think it would be to categorize those motives that fall in the “morally worse” class versus those that do not? And do you think it’s pretty much binary, or is their a continuum, such as murdered by your jealous lover is morally worse than by a killer wanting your money but not so morally bad as by a racist?

96

engels 10.15.09 at 4:02 pm

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.

97

Chris 10.15.09 at 4:08 pm

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?

This seems to me more like a bank robber who robs banks (and not other types of businesses) because that’s where the money is, or a rapist who rapes women (and not men) because he’s heterosexual. That is, it relates to the practical difficulties of committing the crime and what the criminal expects to get out of it.

I do wonder, though, how the mugger knows which people are immigrants? (Although if he targets people he thinks look like they’re probably immigrants because they’re less likely to report the crime, that might still fall in the category of practical reasons, provided there’s some basis for his belief. Presumably nearly everyone who commits a crime wants to get away with it, so behavior oriented toward getting away with it should be built into the base sentence.)

98

rosmar 10.15.09 at 4:09 pm

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.)

99

engels 10.15.09 at 4:14 pm

‘Pace John I am inclined to think that there is something morally worse about being murdered because of you are black, say, than because, say, the killer wanted your money.’

Could you tease out what it is that is morally worse about being murdered because you are black than because the killer wanted your money?

I don’t have time right now unfortunately, or to answer your other three (rhetorical?) quetsions. Why don’t you tease out why you think it isn’t?

100

engels 10.15.09 at 4:29 pm

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.

101

engels 10.15.09 at 4:34 pm

To answer your other two questions: no, I don’t think making these judgements are ever easy and yes, I think there probably is a kind of ‘continuum’ on which different acts of murder can be considered more or less morally bad depending on the motivation of the murderer.

102

parse 10.15.09 at 4:34 pm

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.

103

engels 10.15.09 at 4:46 pm

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

I’m against any scheme I’m familiar with to capture the moral distinction in legal proceedings.

Fine, but this is a separate issue.

104

Salient 10.15.09 at 4:54 pm

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. :-)

105

Salient 10.15.09 at 5:03 pm

Actually, distinguishing my attempts at quips versus my attempts at substantive comment aside, questioning my wisdom generally speaking is probably a very sensible thing to do. Conversely, to be fair to myself, the in-real-life I had an unexpected flustered moment around posts 88-91, which divided my attention. I’d like to retract those statements and flatter myself in believing not everything I say is quite that stupid, and thank you for calling them out.

106

parse 10.15.09 at 5:07 pm

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.

107

CJColucci 10.15.09 at 5:11 pm

Why might it be morally worse to kill someone for racial reasons than for money? If someone wants to kill me for money, unless killing me is essential to the project of obtaining money (maybe it’s a professional hit person or an insurance killing), what the killer wants is not my life, but my money. I have at least some chance of living by giving him my money. If someone wants to kill me because I am [fill in the blank], what the killer wants is to kill [fill in the blanks], so killing me is essential to the project and there’s nothing I can do about it. Much the same reasoning applies if the killer wants to kill me because I f##ked his wife; I can greatly reduce the odds of his killing me by not f##king his wife.

108

engels 10.15.09 at 5:12 pm

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.

109

Salient 10.15.09 at 5:20 pm

Back to an attempt at substance.

Pace John I am inclined to think that there is something morally worse about being murdered because of you are black, say, than because, say, the killer wanted your money.

Let’s take cases. Wanted (1) your money, perhaps because they felt you owed it, (2) wanted someone’s money, whoever, (3) wanted the money of a black person specifically because black people don’t report to the police, they think, or (4) wanted the money of a black person because [racial slur]s don’t deserve money?

I would say (3) as well as (4) would ‘deserve’ higher penalties (the operative word is “higher” because I don’t want to commit to what ‘deserve’ ought to mean). It seems you would distinguish (3) from (4), whereas I see little difference between the two.

To take a non-murder example, burning a cross on your neighbor’s lawn because you don’t want black people moving nearby and ruining your property values is, I think, exactly as bad as burning a cross on your neighbor’s lawn because you feel hatred toward them for being black.

I guess you’re right insofar as the latter case isn’t terrorism. Please reread my proposal in #83, which does not use the word “terrorism,” as I would like to know whether you find it amenable.

110

parse 10.15.09 at 5:23 pm

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?

111

lemuel pitkin 10.15.09 at 6:16 pm

American prisons are awful enough and American justice biased enough that putting more people in prison for longer does our society more harm than good.

Yes, on reflection I have to agree that it’s just that simple: anyone on the left should be extremely suspicious of a solution to any problem that involves putting more people in jail for longer terms.

112

Marc 10.15.09 at 6:48 pm

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.

113

parse 10.15.09 at 7:01 pm

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.

I’m not sure that’s an obvious point. Isn’t it possible that a racially motivated killing might prove intimidating mostly to people of the same race as the victim while a murder in the course of a robbery might prove intimidating to anyone with a wallet?

114

Henri Vieuxtemps 10.15.09 at 9:26 pm

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.

115

engels 10.15.09 at 9:45 pm

Henri, that’s a fair point but I think in some cases that is what is being discussed under the rubric of ‘hate crime statutes’ as in eg. the Michigan statute mentioned above.

116

bad Jim 10.16.09 at 2:37 am

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.

117

bad Jim 10.16.09 at 3:32 am

The point of laws against hate crimes is to obliterate the social consensus that makes them broadly acceptable.

118

NECLC 10.16.09 at 3:33 am

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.

119

NECLC 10.16.09 at 3:37 am

“…should in principle, be avoided.”
It’s hasn’t been avoided nearly enough.

120

John Holbo 10.16.09 at 3:58 am

Thanks for all the good discussion. I’ve been busy for the last 24 hours and am only now working through the thread. I’ll make a quick response to NECLC. “John Holbo #59 missed leederick’s point. in #51.” It may be I missed his point, but only if his statement missed his point. My comment addressed his statement, and adequately I think. Moving along

“That is a moral dilemma [the pour encourager les autres stuff] 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 be avoided.”

This won’t do because it is an argument against criminal law, per se, not against some specific application or extension of it. Criminal justice is social engineering by command – and a blunt instrument to boot – but I don’t think it should in principle be avoided.

You are right that legally there is no room for ‘pour encourager les autres’ sorts of improvisations. But there is a real question in what cases we can make targetted deterrence part of the law, by explicitly laying down the law that x will be punished more severely from now on.

121

Substance McGravitas 10.16.09 at 4:00 am

Other societies ban certain forms of political speech and such bans are approved of by (foreign born) authors on this site.

I would say that the choice to be born in Foreignia makes the opinions of these authors worth less than those of our fine Uslandian patriots.

122

John Holbo 10.16.09 at 4:01 am

I should perhaps qualify that, slightly. There is an element of social engineering in all criminal justice. The interest of the state in involving itself in what could be regarded, and has been regarded by many societies, as a private, retributive matter, is largely an interest in social engineering. The state ensures punishment not (just) by way of securing private retributive ends but by way of securing a more diffuse public good.

123

bad Jim 10.16.09 at 4:16 am

“Does one group deserve more protection than another?”

Sometimes. Slaves and their descendants from the end of the Civil War to approximately the present, for example, given the traditional absence of punishment for their maltreatment by their neighbors. More recently, Jews, given the imminent threat of extermination in their European homeland. More generally, women and gays, given the general disdain with which they’ve been regarded more or less forever?

We humans need bright lines to govern our behavior. Here’s a new one: thou shalt not henceforth abuse the other without impunity merely for being the other, even if your mother or your brother and your neighbor has your back. The world is our community.

124

Phil 10.16.09 at 7:03 am

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.

125

Henri Vieuxtemps 10.16.09 at 7:26 am

123 (bad Jim), how would you respond to 118: “…by following them [racial demographics] do we strengthen the barriers?”

IOW, (leaving aside dramatic situations) when a group is already disliked, isn’t special protection (or at least this particular form of special protection) likely to increase the resentment? And if so, doesn’t the action defeat its own purpose here.

126

bad Jim 10.16.09 at 8:36 am

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.

127

alex 10.16.09 at 8:43 am

Certainly not! But your quest for ‘general agreement’, achieved by criminalisation, contains its own contradictions nonetheless.

128

engels 10.16.09 at 11:09 am

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…)

129

parse 10.16.09 at 11:49 am

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.

bad Jim, were you aware that it’s already illegal to shoot gay men? That Wyoming somehow managed to put Matthew Shepard’s killers away for life, even without a hate-crime law on the books?

130

Henri Vieuxtemps 10.16.09 at 11:50 am

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?

131

parse 10.16.09 at 12:00 pm

engels, my argument wasn’t that 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…) but to report we have a very good idea what happens in practice: people go to jail for longer terms, and these people are disproportinately poor and people of color. There is evidence that hate crime laws have made things worse for some of the people they are designed to protect. People are induced to plead guilty to “lesser offenses” rather than risk going to trial with the possibility of an even worse outcome than they would face absent the enhanced sentencing such laws often include. I learned last night at the screening I mentioned earlier that the young lesbian women accused of forming a man-hating wolf pack were threatened with charges of committing an anti-heterosexual hate crime.

132

Salient 10.16.09 at 12:05 pm

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.

133

Kaveh 10.16.09 at 1:41 pm

@117 & 111

I would expect hate crime laws not to work by deterring people from committing a crime with a harsher penalty, but more by a kind of moral persuasion that (iirc) was observed when seatbelt laws went into effect. It wasn’t that people were afraid of getting arrested for not wearing seatbelts, it was that the state established a norm, a moral standard.

Same thing with hate crimes, what they state may really be signalling with these laws is that the crimes will not go unpunished. The people who killed Matthew Shepard may have expected to get away with what they did because probably without thinking about it much they assumed that a gay man’s life was worth less to society and wasn’t subject to the normal rules.

If effect, a hate crime law says, to most people “this is not just a crime but an act of terrorism and will be punished accordingly,” and to the bigot, “yes, gay people are protected by the law too”.

I imagine this is something you could try to measure.

134

engels 10.16.09 at 1:48 pm

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

135

parse 10.16.09 at 1:49 pm

Same thing with hate crimes, what they state may really be signalling with these laws is that the crimes will not go unpunished. The people who killed Matthew Shepard may have expected to get away with what they did because probably without thinking about it much they assumed that a gay man’s life was worth less to society and wasn’t subject to the normal rules.

Wouldn’t the fact that the people who killed Matthew Shepard were punished with life imprisonment send the message that the assumption of killing gay men would go unpunished was ill-founded?

136

engels 10.16.09 at 2:03 pm

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.

137

bianca steele 10.16.09 at 2:04 pm

Henri@130: their racist doctrines, their racist terms

My problem with your argument in this comment isn’t that it isn’t logical given that this is what’s going on, but it just doesn’t describe what I know about the situation. If I can’t see what you’re referring to, as far as I’m concerned it’s airy speculation.

138

NECLC 10.16.09 at 2:09 pm

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.

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bianca steele 10.16.09 at 2:27 pm

engels@136: 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.

I agree. Also, as I think bad jim suggested, they officially de-institutionalize what had been felt to be a quasi-governmental right possessed by white racists in many parts of the South. It had previously been felt to be acceptable, in those parts of the South, for a mob to storm the town hall, intimidate the sheriff with guns and fists, break down the prison door, and kidnap a prisoner whom they proceeded to torture and kill. Not being a Southerner myself, I can only guess why the people involved felt it was acceptable (perhaps they even thought they were doing the sheriff and judge a favor in removing the compulsion they otherwise had to obey state law)–it had never been considered acceptable in the North. I suppose it was assumed that there were significant populations even in the South, even white populations, who would have preferred to deinstitutionalize that kind of mob law.

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parse 10.16.09 at 2:29 pm

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

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parse 10.16.09 at 2:36 pm

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.

But 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 one thing to demonstrate official abhorrence of racist violence–which I think you can accomplish by scrupulously investigating and punishing all acts of criminal violence, including those motivated by bias. If the aim is to officially sanction racism itself, it does seem as though it’s thought, rather than action, which is being criminalized.

To return to the Shepard case–didn’t the prosecution, conviction and sending to prison for life the two offenders demonstrate an official abhorrence of violence against gay men?

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lexrex 10.16.09 at 2:43 pm

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

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Henri Vieuxtemps 10.16.09 at 3:06 pm

137: If I can’t see what you’re referring to, as far as I’m concerned it’s airy speculation.

I wasn’t necessarily referring to any real-life situation, but to bad Jim’s argument in 123 that some groups sometimes need special protection.

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Kaveh 10.16.09 at 3:18 pm

@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.

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engels 10.16.09 at 3:30 pm

Just to be clear my own suggestion is a little different to what Kaveh says above in that I suggest that the law might indeed express abhorrence of racism as an attitude, not just of racist violence. It does this by singling out racist violence for a more severe level of punishment than similar acts of violence that were not motivated by racism. Part of the motivation for this may well be discourage this attitude in general. But it does not criminalise having the attitude itself, only the expression of the attitude in a violent act, therefore it does not create a ‘thought crime’.

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bianca steele 10.16.09 at 3:43 pm

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.

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parse 10.16.09 at 3:58 pm

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.)

Kaveh, the problem you have identified is that laws protecting people from violence were not scrupulously applied in the cases of certain classes of people. And you believe the remedy for this is not to correct that failure to enforce the existing laws by applying them equally regardless of the victim, but to pass new laws and trust the same institutions that failed to enforce the existing laws to scrupulously enforce the new ones? And that will send a message to those who observed the failure of police and prosecutors to apply the existing laws that things are different now?

engels, suppose you have two cases of violent assault which are otherwise identical except that one is motivated by racial bias and the other is not. The former crime is punished more severely than the latter; the biased assailant receives 5 years in prison, and the un-biased assailant receives 3 years. If I told you that it seems to me that the biased assailant is serving 3 years for assault and 2 years for bias, would you say that’s an unreasonable conclusion or just one that you don’t agree with?

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engels 10.16.09 at 4:10 pm

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.

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engels 10.16.09 at 4:13 pm

If you want to know what a ‘thought crime’ is read 1984. Racially aggravated assault is not a thought crime. Calling it one is an example of the kind of rsilly, paranoic rhetoric that has done so much to make American politics the laughing stock of the civilised world.

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Henri Vieuxtemps 10.16.09 at 4:47 pm

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

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parse 10.16.09 at 5:15 pm

engels, I didn’t say that racially aggravated assault was a thought crime. I said a law that seeks to express official abhorrence of racism as an attitude created a thought crime. I don’t think John refuted this argument in his original post, as there was no explicit claim that such expression was a justification for hate-crime legislation.

I’d be interested in your response to the evidence you requested regarding the actual effects of hate-crime laws as applied in the United States. Even supporters of the notion that the state should use criminal law to express official abhorrence of racism might be bothered to find that such a statute was racist in its application, if not its intent.

I’ve read 1984.

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LizardBreath 10.16.09 at 5:32 pm

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?

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parse 10.16.09 at 5:47 pm

Lizard Breath, I’m not attempting to show that hate-crime laws are uniquely racist in their appplication but to suggest that they are not an exception to criminal law generally, which is racist in it’s application. I realize I haven’t included proof of the premise about criminal law generally, but I thought that for the purposes of this discussion, it might be granted.

Unless African Americans do commit hate crimes disproportionately, their disproportionate appearance among those identified as hate-crime offenders would strongly suggest racist application of the laws, wouldn’t it?

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Chris 10.16.09 at 5:56 pm

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.

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Henri Vieuxtemps 10.16.09 at 6:01 pm

Regarding the motives. I don’t think racism vs greed (or jealousy, which is the same thing) is all that interesting or enlightening, because greed is a rational motive and racism isn’t. What about racism vs psychotic murder, where the motive is the hatred of all mankind. Which one is worse?

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engels 10.16.09 at 6:03 pm

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…

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Chris 10.16.09 at 6:04 pm

I see that my post crossed with parse, who said about what I expected.

The idea that the law might be abused isn’t an argument about any specific law (unless that law is *unusually* prone to abuse, such as the so-called “unbridled discretion” doctrine); it’s an argument against law in general, or government in general, or society in general.

But law, government, and society are things that we can’t really afford to eliminate in general, so we have to attempt to prevent abuse of power by those entrusted with it by some means *other* than abolishing positions of power altogether. Legal standards that any particular official must adhere to (i.e. the rule of law) are one means of doing that; public scrutiny of the actions of officials is another; etc. Given that those methods are necessary, and that they will probably be imperfect most of the time, but that we can’t call the whole thing (i.e. law, government and society) off anyway, laws and proposed laws should (IMO) be examined within that framework.

Imperfection is not a justification for refusing to try. Carry on imperfectly.

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engels 10.16.09 at 6:07 pm

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

Well, it doesn’t.

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parse 10.16.09 at 6:32 pm

Chris, engels, 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.

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.

engels, what does it mean “officially” abhor racism? 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?

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engels 10.16.09 at 6:46 pm

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.

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parse 10.16.09 at 7:02 pm

engels, the claim was made by CJ Colucci in #34. As I said, I was responding specifically to that post, and quoted it when I originally referred to the disproportionate number of African-Americans represented among hate-crime offenders. Which part of the claim strikes you as ridiculous: that hate-crime laws might well not do any good, or that they don’t do any particular harm?

I’m not sure what evidence I could offer that would convince you that hate crimes laws have been on balance a bad thing for African-Americans. I think you’ve accepted now that there are some negative effects of the laws. I’m not aware of any positive effects of the laws, so on balance I would say they are harmful. I’m willing to accept that there might be positive effects I’m not aware of, but you aren’t prepared to offer any. Apparently I’m to be mocked for a failure to provide evidence of my assertions while you are to be indulged. And yet you are the one who is annoyed!

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Kaveh 10.16.09 at 7:17 pm

@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.

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engels 10.16.09 at 7:18 pm

Sorry, but life is too short for this.

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engels 10.16.09 at 8:53 pm

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.

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parse 10.16.09 at 10:31 pm

1. I don’t think hate-crimes are thought crimes. I do think hate-crime laws, contra John, do require investigating a defendant’s thoughts in ways that differ substantively from traditional mens rea.
2, I do think an attempt to express official abhorrence for racism through criminal statutes would create a class of thought crimes. I meant to indicate I believed reasonable people might differ about this; my apologies if that wasn’t clear.
3. I do have a pervasive distrust of the police and criminal justice system in the United States. 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.
4. I don’t think it’s obvious that hate-crime laws have been effective in deterring racist or other bias-motivated attacks. 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.
5. Most of the questions I’ve asked throughout this exchange were not rhetorical but genuine attempts to elicit more information or a better understanding of the points others were making.

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MarkUp 10.17.09 at 2:40 am

“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.

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Henri Vieuxtemps 10.17.09 at 11:53 am

@162 Perps believed that the law effectively didn’t protect certain victims…

I imagine the two most vulnerable groups in this respect are the illegal immigrants and the homeless (both, unsurprisingly, socio-economic categories). Are they even mentioned in any of those ‘hate crime’ laws?

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engels 10.17.09 at 12:38 pm

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’?

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engels 10.17.09 at 1:19 pm

Again, for some perspective wikipedia has a comparison of hate crime laws in different countries.

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engels 10.17.09 at 3:06 pm

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.

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MarkUp 10.17.09 at 5:37 pm

#168 “The argument that the only purpose of …”

That it was the only purpose was not stated, though I suppose my choice of wording could readily be read that way, though we still end up back to the un-equalness that has been fostered over time for many reasons – economic, gender, race, ideology, etc. There is a small grain of wisdom in the notion from some on establishing protected classes. If Shepard had been homeless, or a CountryWide broker, or a door knocking evangelical, rather than gay, what happened would have been no less horrendous but could easily have received different levels of ‘interest’ in resolution and focus. That said I have no real issue with a further defining of bad acts since we still have problems applying common sense. And yes, mean people suck, be they here or Brazil or …

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Kaveh 10.18.09 at 5:09 am

@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.

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