Jim Stillman
NevarHate crime legislation is both popular and unnecessary
July 8th 2007 13:12
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Let’s start with a few “givens”, as professors in law school like to say. I do not justify or excuse any person who commits a crime against any person or who injures any person or steals property of another. A person arrested for a violation of law is entitled to a fair trial and, upon conviction, deserves to be incarcerated or suffer other punishment as the law might direct.
The issue is whether the acts of the accused should be classified as criminal based on the identity of the injured person or whether the punishment imposed should be enhanced because of the inner thoughts of the defendant.
For example, if I strike a person whom I believe he or she is Jewish, Moslem, Gay or Lesbian, African-American – you can add whatever group you choose – should I be found guilty of a separate and different crime than would have been the case if I choose my victim by chance? If I am adjudicated guilty, should my punishment be greater than it would be had I blindly chosen the victim without concern of his or her ethnicity.
Several months ago, three lads left their homes in New York City, looking for someone who would make a convenient and risk free victim. The boys waited outside of a well known gay bar in Brooklyn looking for a patron to leave the premises. They did not hate gays nor did they have any prejudices against them; on the contrary, they looked very favorably upon homosexuals, as victims, on the theory, at least in their subjective view, that gay men would be easier to rob, less likely to put up a fight, less likely to complain to law enforcement. In short, they loved gays.
As I will discuss, the issue will revolve around the specific language of the New York law.
However the real issue is whether hate crime statutes are fair, proper or a reaction to revulsion against those who spew hatred. I submit that the answers are not always that easy.
What is a “hate crime”?
Almost all states have “hate crime” statutes as does the Federal government. Taking the latter first, the Federal law defines a hate crime as a "a crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime, because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person."
At another point, the Attorney General is directed to gather and maintain a record of hate crimes and defines them as: “a criminal offense committed against a person, which is motivated, in whole or in part, by the offender’s bias against a race, religion, sexual orientation or ethnicity/national origin.”
The Federal law does not create a new offense but allows an enhancement of penalties upon conviction of the underlying crime if (a) the victim was chosen as a result of bias against him or her, or (b) if the victim was chosen because of his or her inclusion in a protected group. It should be noted that these are two different criteria and the application to a defendant can lead to strange results.
The state laws on the subject treat the “protected” groups more or less broadly, but, for the most part, consider the hate crime statute as a means to increase the punishment. This is already possible without additional statutes. My position is that the law should not create a different crime based on the motives of the accused.
For example, Florida Statutes, § 775.085 states, “The penalty for any felony or misdemeanor shall be reclassified as provided in this subsection if the commission of such felony or misdemeanor evidences prejudice based on the race, color, ancestry, ethnicity, religion, sexual orientation, national origin, mental or physical disability, or advanced age of the victim”. Note that here; too, there must be a finding of prejudice or hatred.
New York comes to a similar but not identical result, but in a much more verbose fashion: “A person commits a hate crime when he or she either: (a) intentionally selects the person against whom the offense is committed because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct, or (b) intentionally commits the act or acts constituting the offense because of a belief or perception regarding the [nature of the victim].”
New York’s statute does not require hatred or prejudice; attack a “protected” person and there is likely to be a hate crime. And there can be a big difference in the consequences.
In the case of the gay-robbing scamps from New York, the District Attorney prosecuted the defendants and sought to enhance the sentence after conviction to recognize that this was a hate crime. The attorneys for the defendants asserted that no “hate” was involved. The Court correctly pointed out that bias against a victim was not a part of the New York law only that the victim had been specifically chosen. Although this case is presently under appeal, it seems likely that due to the provisions of the New York statute, the lads are going to do extra time!
So, what’s wrong with punishment based on bias and hatred?
It certainly meets with our visceral impressions. Who doesn’t hate a bigot? Who wouldn’t object to the throwing a painter of swastikas on synagogues in jail forever? Who wouldn’t want someone who beats and maims an African-American or homosexual because of those characteristics to be incarcerated with a new best friend, Bubba?
It is so hard being a liberal/libertarian sometimes.
A statute prohibiting specific acts, such as cross-burning, inciting a race riot or advocating genocide is certainly appropriate. That is not what is involved in hate crime legislation. It is disingenuous to suggest that one who opposes enhancement of penalties or the creation of a new crime based on the beliefs of an individual, no matter how odious, is in favor of bigotry or bias or hatred.
I submit that hate crime laws, by their very nature, punish people for their opinions. A mugger who robs a Jew because he's well-dressed is punished less severely than a mugger who robs a Jew based on the belief that Jews get their money only by cheating Christians. A thug who beats an old lady in a wheelchair just for fun is punished less severely than a thug who does so because he believes disabled people are leeches.
The rationale for such unequal treatment is that crimes motivated by bigotry do more damage than otherwise identical crimes with different motivations because of the fear they foster. Yet random attacks arguably generate more fear, and hate crimes cause anxiety in the targeted group only when they're publicized as such. In any case, judges can take a crime's impact into account at sentencing. There is no need for specific authority for the Court to do so.
Hate crime laws are unnecessary. If a specific act is deemed criminal then punishment should be meted out; the innermost feelings of a defendant save in rare circumstances, should not play a part.
Let’s start with a few “givens”, as professors in law school like to say. I do not justify or excuse any person who commits a crime against any person or who injures any person or steals property of another. A person arrested for a violation of law is entitled to a fair trial and, upon conviction, deserves to be incarcerated or suffer other punishment as the law might direct.
The issue is whether the acts of the accused should be classified as criminal based on the identity of the injured person or whether the punishment imposed should be enhanced because of the inner thoughts of the defendant.
For example, if I strike a person whom I believe he or she is Jewish, Moslem, Gay or Lesbian, African-American – you can add whatever group you choose – should I be found guilty of a separate and different crime than would have been the case if I choose my victim by chance? If I am adjudicated guilty, should my punishment be greater than it would be had I blindly chosen the victim without concern of his or her ethnicity.
Several months ago, three lads left their homes in New York City, looking for someone who would make a convenient and risk free victim. The boys waited outside of a well known gay bar in Brooklyn looking for a patron to leave the premises. They did not hate gays nor did they have any prejudices against them; on the contrary, they looked very favorably upon homosexuals, as victims, on the theory, at least in their subjective view, that gay men would be easier to rob, less likely to put up a fight, less likely to complain to law enforcement. In short, they loved gays.
As I will discuss, the issue will revolve around the specific language of the New York law.
However the real issue is whether hate crime statutes are fair, proper or a reaction to revulsion against those who spew hatred. I submit that the answers are not always that easy.
What is a “hate crime”?
Almost all states have “hate crime” statutes as does the Federal government. Taking the latter first, the Federal law defines a hate crime as a "a crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime, because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person."
At another point, the Attorney General is directed to gather and maintain a record of hate crimes and defines them as: “a criminal offense committed against a person, which is motivated, in whole or in part, by the offender’s bias against a race, religion, sexual orientation or ethnicity/national origin.”
The Federal law does not create a new offense but allows an enhancement of penalties upon conviction of the underlying crime if (a) the victim was chosen as a result of bias against him or her, or (b) if the victim was chosen because of his or her inclusion in a protected group. It should be noted that these are two different criteria and the application to a defendant can lead to strange results.
The state laws on the subject treat the “protected” groups more or less broadly, but, for the most part, consider the hate crime statute as a means to increase the punishment. This is already possible without additional statutes. My position is that the law should not create a different crime based on the motives of the accused.
For example, Florida Statutes, § 775.085 states, “The penalty for any felony or misdemeanor shall be reclassified as provided in this subsection if the commission of such felony or misdemeanor evidences prejudice based on the race, color, ancestry, ethnicity, religion, sexual orientation, national origin, mental or physical disability, or advanced age of the victim”. Note that here; too, there must be a finding of prejudice or hatred.
New York comes to a similar but not identical result, but in a much more verbose fashion: “A person commits a hate crime when he or she either: (a) intentionally selects the person against whom the offense is committed because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct, or (b) intentionally commits the act or acts constituting the offense because of a belief or perception regarding the [nature of the victim].”
New York’s statute does not require hatred or prejudice; attack a “protected” person and there is likely to be a hate crime. And there can be a big difference in the consequences.
In the case of the gay-robbing scamps from New York, the District Attorney prosecuted the defendants and sought to enhance the sentence after conviction to recognize that this was a hate crime. The attorneys for the defendants asserted that no “hate” was involved. The Court correctly pointed out that bias against a victim was not a part of the New York law only that the victim had been specifically chosen. Although this case is presently under appeal, it seems likely that due to the provisions of the New York statute, the lads are going to do extra time!
So, what’s wrong with punishment based on bias and hatred?
It certainly meets with our visceral impressions. Who doesn’t hate a bigot? Who wouldn’t object to the throwing a painter of swastikas on synagogues in jail forever? Who wouldn’t want someone who beats and maims an African-American or homosexual because of those characteristics to be incarcerated with a new best friend, Bubba?
It is so hard being a liberal/libertarian sometimes.
A statute prohibiting specific acts, such as cross-burning, inciting a race riot or advocating genocide is certainly appropriate. That is not what is involved in hate crime legislation. It is disingenuous to suggest that one who opposes enhancement of penalties or the creation of a new crime based on the beliefs of an individual, no matter how odious, is in favor of bigotry or bias or hatred.
I submit that hate crime laws, by their very nature, punish people for their opinions. A mugger who robs a Jew because he's well-dressed is punished less severely than a mugger who robs a Jew based on the belief that Jews get their money only by cheating Christians. A thug who beats an old lady in a wheelchair just for fun is punished less severely than a thug who does so because he believes disabled people are leeches.
The rationale for such unequal treatment is that crimes motivated by bigotry do more damage than otherwise identical crimes with different motivations because of the fear they foster. Yet random attacks arguably generate more fear, and hate crimes cause anxiety in the targeted group only when they're publicized as such. In any case, judges can take a crime's impact into account at sentencing. There is no need for specific authority for the Court to do so.
Hate crime laws are unnecessary. If a specific act is deemed criminal then punishment should be meted out; the innermost feelings of a defendant save in rare circumstances, should not play a part.
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Comment by Winston
Small Thoughts on Big Questions
In theory, Justice is supposed to be blind. Now, though, she's far too color conscious.
Great post!