Why not just prosecute people who beat up or kill members of religious, sexual-orientation, racial or ethnic minorities under the regular criminal laws?
Arguably, such crimes cause whole ethnic communities to live in fear, and may prompt individual members to revenge on random members of the ethnic group they perceive as harassing them, leading to cycles of violence. There’s a state interest in discourging such.
ISTM that “hate crimes” intimidate a smaller subset of the population than would a similar crime with a different motivation. If I beat up a black guy because he is a black guy, then black guys would tend to fear being beaten up. If I beat up a guy to steal his wallet, then everyone who carries a wallet is intimidated, and there are more people with wallets than black people.
Of course, IRL there is so much overlap that the distinction makes no difference. People who commit hate crimes commit other kinds of crimes disproportionately as well.
But in answer to the OP, hate crime legislation exists to communicate that certain motives for crime are more worthy of condemnation than others. Murder for gain is bad, murder for racism is worse. That sort of thing. I am not talking about premeditated vs. spontaneous crime - that distinction already exists, and is apart from hate crime motivation. Hate crime legislation is designed to punish a different set of motives for forming criminal intent.
Regards,
Shodan
Thought crime, then?
Does anybody know how juries distinguish between regular crimes and these ‘hate’ crimes? If the victim is a minority, is that enough? Or does the prosecution have to show that the suspect is a racist/homophobe/whatever? Are all crimes perpetrated by racists hate crimes? Or must there be evidence that the crime was a ‘message’ to the wider minority community?
I don’t know anything about how these laws are defined and prosecuted, but on first glance, the whole concept seems fucked up. I can see that, for example, lynching black people, especially in the past, was a much more horrible crime than simple murder, due to its effect on the entire black community. But I don’t know how to go about proving that one crime is intended to threaten an entire community, while another is just because the victim pissed off the wrong guy. Especially in this day and age, where diverse groups of people live and work side by side; you can’t simply say “the victim was gay, the perpetrator was homophobic, ipso facto hate crime”.
It also seems unfair to the victims of non-hate crimes to say their loss just isn’t as big a deal as the loss of a minority, therefore we won’t punish the perpetrator as much.
I’m not sold on hate crimes legislation, myself. Absolutely, a crime directed towards members of a minority will frighten members of that minority, and that’s terrible. By a similar token, a crime that occurs outside my apartment building will make frighten everyone in my neighborhood - this is also terrible. All crimes threaten the safety of some other group - that’s why we have criminal law. Criminal law is meant to protect society precisely because there is a class of conduct - crime - that threatens many more people than the immediate victims.
Given that we already have law designed to deal with conduct that has community-wide adverse consequences, it seems both redundant and distasteful to create a special subset of that law designed to punish a particular motive for crime.
It’s already been discussed many, many times on this board.
But basically, yes: The evidence has to show that the perpatrator intended to intimidate the entire community.
And there are many crimes that require figuring out the perp’s mental state at the time of the crime to find him guilty. That’s often the difference between different types of homicide, for example. Accident, involuntary and voluntary manslaughter, first and second degree murder, they all differ largely on what the perp was thinking at the time.
It’s the responsibility of the prosecution to show that the crime was motivated by racial, religious, or whatever animus.
I’d like to point out that intent is an element of nearly all crimes, not just hate crimes. (Whoops, suranyi did that. Well, me too!)
To me, the argument is clear: those who attack others based on hatred for the groups they belong to are a greater threat to public order and safety than those who attack out of personal animus. Thus it is eminently sensible to make this level of intent the difference between two degrees of assault or murder, much as premeditation is the difference between two degrees of murder.
It seems to me that, if I spraypaint, “Go Dodgers!” on a wall, that should be a lesser crime than if I spray paint, “John Smith should die!” The latter, obviously, being a threat as well as an act of vandalism. Particularly if I do it on John Smith’s house. It seems a reasonable extension that I should receive an even stronger punishment if I paint, “Kill the Jews” on a wall, as that’s vandalism, and a threat against multiple people, instead of just one. Particularly if I paint that on the wall of a synagogue.
Similarly, if I viciously beat someone, that’s bad. If I viciously beat someone, and then tell him, “This is what happens to <ethnic expletive> people in this country! Go to tell all your <ethnic expletive> friends that they’re going to be next!” then that should be a worse crime, because in addition to the beating, I’ve threatened a large group of people. While I suppose you could prosecute that as two separate crimes, I don’t see anything wrong with prosecuting it as a single crime with a harsher penalty then either of its components.
This is an excellent answer that cuts right to the quick. I will be sad when they Chris Buckley you out of the GOP.
I need to voice my agreement with Kimmy here. That was an outstanding answer which defines the reasoning behind the concept of ‘hate crime’ without arguing for or against the subject.
Having criticized Shodan in the appropriate forum several times for not doing this sort of post, it’s incumbent on me to make public recognition when he dose. Thank you, sir, for that post.
I don’t know if the “having wallet” vs. “being black” analogy is really that apt. There are such things as identities, and some are more at risk than others. Wallet-haver is not such a one. People already know that their property is protected by the law, and it’s unlikely that, having learned that a man (or six men) with a wallet was assaulted and robbed, my response would be holy christ, they’re coming for us wallet-havers. There are criminals, but at least I’m not under attack as a person. And everybody already knows, and will always know, that it isn’t OK to fuck with me because I have a wallet.
If I’m at a store, and somebody says to me “Hey, you got a wallet there? That a wallet?” it isn’t very likely that I’m going to feel under attack, either. My status as a wallet-haver is secure, and, with no immediate presence of a violent aspect to the exchange, I’m not going to be thinking about an escalation to violence just yet.
Now, say I’m a gay man, and I find out that gay men are getting beaten in a certain part of town, because they’re gay. If I’m at a store and someone hints that maybe I look like a faggot, or whatever, now we’re talking intimidation. It is part of my identity that is causing me to be threatened in this situation. Maybe I’m going to get beaten, maybe I’m not, but I’m fucking terrified, and I’m terrified in a way that a man with a wallet is not going to be terrified when someone else finds out he has a wallet.
There are a lot of difficulties involved with punishing people differently for the nature of their intent, certainly, and it’s probably the case that it will never be free of defects philosophically to do so, but to draw that parallel suggests pretty significant disregard for the purpose to which hate crime legislation is intended.
For my part, by the way, I’d suggest an additional purpose for legislating a category of hate crimes: a remedy for existing inequality. Arguably, if it was equally negatively regarded in society in general, beating up a Mexican for being Mexican wouldn’t need to be punished differently than beating him up because I was cranky. If the general perception, though, is that certain minorities are more deserving of negative treatment, there’s an inequality there that in my estimation is in itself a wrong. Obviously you can’t make it a crime to hate Mexicans, but at the same time, you can make an attempt to disfavor hatred. Hate crime legislation does this by saying that the act itself is wrong, and in addition, if the act is in furtherance of this agenda we want to stamp out, it’s additionally wrong.
Which, frankly, I’ll concede is a “thought crime” in the sense that I just mentioned, and I can see the objection to that idea. I have an objection to racism and homophobia and religious intolerance and sexism, too, though. And in the end this probably ends up being an affirmative action debate, but that’s my answer, anyway.
The only merit I see to hate crime legislation is the rider that the Feds can step in when the locals are not using due diligence. Luckily this doesn’t happen that often (and there’s a difference in due diligence and quotidian incompetence). And I do think that statistics and records should be shared with central agencies for hate crime designations to analyze trends and for use in possible other cases.
But as for prosecution and sentencing I completely agree: if the crime is unprovoked assault on a gay guy/black guy/whatever guy, prosecute for the unprovoked assault. To hold their belief system against them is unconstitutional and dangerous.
As was mentioned above, the prosecution must prove up animus as a motive for the attack, it is not sufficient merely to show that the victim was of a different race/religion/sexual orientation from the perpetrator.
An unprovoked (in the sense of not being provoked by the real or perceived race/religion/s.o. of the victim) is not a hate crime. Furthermore, you are free to believe whatever you like and express whatever beliefs you like. The commission of a violent crime against another has never been considered an expressive activity, so that line of reasoning is DOA.
Here’s an example that might illustrate the difference.
Here in Minnesota, starting a campfire on someone else’s property is a crime, Negligent Fire, 609.576, with a penalty of up to 90 days in jail of a $1,000 fine.
And burning a cross on the property of a black family that has just moved into the neighborhood – that’s the same crime, Negligent Fire.
But obviously, the second one is much more of a threat to the property owners, and also an intimidation to any other black potential property owners. Without hate crime enhancement laws, they would be the same crime, despite the more serious implications of the cross-burning.
I don’t think it does. The problem isn’t that a hate crime is classified as “negligent fire”, it’s that deliberately starting fires on other people’s property to intimidate them is classified as “negligent fire”. If someone set fire to your lawn to scare you into paying protection money, shouldn’t that also be considered worse than “negligent fire”?
I think most of what hate crime legislation wants to accomplish would be able to be accomplished under existing laws with further charges, though I’m not certain.
Spraypainting hearts and flowers on a synagogue can be prosecuted for vandalism, spray painting ‘kill the Jews’ or a swastika on a synagogue can be prosecuted for vandalism and ‘making terroristic threats’ or the like. Is this not the case for some reason?
But is not racism a protected political thought?
So, if you add on a penalty for (murder/robbery/assault) BECAUSE of racism, then aren’t you, in effect, penalizing a constitutional right?
In other words, action X is bad. Thought Y is protected.
If you do action X you get 10 years in prison.
If you do action X because of thought Y, you get 15 years in prison.
Aren’t you saying that we are giving you 5 years in prison for believing Y? Even though Y is protected?
Beliefs are protected, sure. Expressing those beliefs is protected too. But the commission of a violent crime is not expressive activity. You don’t have a First Amendment interest in “expressing” your belief in the superiority of the R race by punching a non-R in the face.
The sentencing enhancement doesn’t come because you believe thought Y. If David Duke were driving down the street blindfolded and struck a non-white pedestrian, he wouldn’t have committed a hate crime, despite his adherence to distasteful racial beliefs. His didn’t have the requisite intent, which is a different thing from belief. He can hold and publicize whatever belief he likes. He can even undertake legal activities to advance those beliefs. But if those beliefs lead him to form the intent to use criminal attacks to intimidate classes of people he disapproves of, then he has crossed the line into hate crime territory.
Yes we do. Certain motives are worse than others, and no I don’t consider that a thought crime