If I may borrow the pet phrase of a certain Danish Prince, that is a gross oversimplification. Hate speech per se is not categorically protected under the First Amendment. In fact, The Robed Nine have ruled that many types of hate speech are explicitly not protected by the First Amendment. You cannot go around overtly telling people to “kill all the ____'s” or publish to that effect. You cannot make libelous or slanderous statements about ____'s. You cannot display your bigotry about ____'s in a way that compromises the integrity of the workplace. As for the hate-filled idiot kids, they can march around in KKK uniforms on their own time, but if they wear them to school, they can be suspended or expelled because the Supreme Court has ruled that a school’s interest in maintaining a safe and secure learning environment is more compelling than a student’s right to uninhibited free speech.
**
IANAL, but isn’t this more along the lines of a Fourteenth Amendment equal protection and due process consideration?
Ah, I do so love the internet. A while ago on vote.com, when they used to have concise summaries of the pro and con arguments by respected folks on either side (rather than just letting people discuss among themselves), they discussed the question of hate crimes, and the pro side was nicely summarized here. (For the record, she talks about both Matthew Shepard and Billy Gaither.) Some excerpts:
The summary was written by Winnie Stachelberg, Political Director of the Human Rights Campaign. I should also note that this commentary is about the federal Hate Crimes Prevention Act (which, IIRC, has either been radically changed since its original introduction or perhaps tabled altogether by Congress, I’m not sure which as I don’t follow news on this issue very closely). It also explains where I got my reasoning from, but I will fully admit I may be a little out of date and I am not referring to individual states’ versions of hate crimes laws.
Another question - can it reasonably be stated that crimes based solely on gender, race, nationality or sexual orientation be considered a form of terrorism? Why or why not?
Aww, darn it, Esprix, you’re exacerbating my dictionary.com jones! Oh well, here goes:
ter·ror·ism Pronunciation Key (tr-rzm)
n.
The unlawful use or threatened use of force or violence by a person or an organized group against people or property with the intention of intimidating or coercing societies or governments, often for ideological or political reasons.
Well, that certainly makes it easy to answer your question, Esprix. The answer is yes, and the reason is that the statement may be considered true by definition.
In my opinion that’s exactly what it is. A hate crime, say a cross-burning on the lawn of the first black family in the neighborhood, isn’t just a crime against that family. It’s a message that says “we do not want blacks here”. The crime is not arson (or criminal trespassing or whatever) although it contained the elements of it. The crime is the application of fear to a larger population than the immediate victim. Exactly the MO of a terrorist.
This is exactly what the Supreme Court found when it made laws prohibiting hate speech qua hate speech unconstitutional. Justice Scalia put it far more eloquently: “St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.” R.A.V. v. St. Paul, 505 U.S. 377, 392 (1992).
However, hate crime laws don’t do this. Rather, “the same criminal conduct [is] more heavily punished if the victim is selected because of his race or other protected status than if no such motive obtained.” Wisconsin v. Mitchell, 508 U.S. 476, 484 (1993). What makes a hate crime special is that it is motivated by the point of view that the victim was, by virtue of being a member of some protected group, selected as a victim by the defendant. What hate crime laws do is send the message that group animus is an especially heinous motivation for committing a crime, deserving of special opprobrium.
A random act of violence against a member of a community is a disturbing event that may very well dismay and frighten the community, but will not likely destroy it. An act of violence motivated by hatred of members of one group in the community by members of another group, on the other hand, has the potential to tear the community apart. It’s quite clear to me that such acts are far more dangerous to a civil society and deserve greater punishment.
I’m so glad some one brought this up again, for I’ve been curious.
For those who think that ‘hate crimes legislation’ is a bad idea, and that laws already on the books for murder, assault, etc. are adequate and the concept that the event itself might be considered more heinous (if the motive involved is based on the victim’s ethnicity, gender, sexual orientation etc,)
ahem. May I ask - Did you feel more outraged at 9-11 events than any other recent criminal event? What I heard, consistently across these boards and everywhere else, was a sense of outrage that the approx. 3000 people who were targeted for death that day were selected solely 'cause they happened to be Americans (mostly) working, flying etc.
Glad also to note that no one’s rising to the bait submitted by catsix, hate crime is defined by the motivation invovled. No, of course it doesn’t make any one any the less dead, but it also increases the randomness of violence thereby increasing the fear of being victimized.
We operate daily on the basis of risk/benefit asssesment - we know that there is some risk in driving to work everyday, but the benefits generally outweigh the relatively minor risks. We may choose to go to a specific 7/11 and avoid another based on our perceived risk analysis (‘dont’ go to that one, it’s in a bad neighborhood’).
But hate crimes take away that relative risk assesment - since we cannot choose our gender (well, sort of ) ethnicity etc, and therefore may become a target w/o any way to minimize the risk to ourselves.
Wring, I was outraged by the attacks of 9-11, not because it was directed at Americans, but because three thousand people were murdered in an instant. I do not appreciate you insinuating that the desire for justice is based solely on the fact that our nationality was targeted. I would have been just as outraged if the perpetrators were targeting capitalism, the owners of the building, or were just a crazy suicide cult bent on taking as many people with them when they go. To compare hate crimes (which can include non-violent as well as capital offenses) to September 11 is beyond hyperbole and frankly, I find it insulting.
KellyM, thank you for the links to the SCOTUS rulings. I am pleased to find out that my concerns regarding infringement on freedom of speech have already been addressed by the highest court. However, I also have questions regarding the application of the fifth ammendment to hate crime legislation that I hope you can help me answer.
If I remember correctly, Sens. Kennedy and, erm, Schuller? pushed through a bill a year or two ago making violent offenses committed with a motive based on sex, race, culture, or religon a federal crime. This seems to imply that if a state is unable to get a conviction, then the defendant can be tried in federal court for the same offense - the offense is just called by a different name, which would violate the accused right to avoid double jeopardy. Has SCOTUS addressed this? Are there safeguards in place to prevent a defendent from being tried, acquited, and then retried for a hate crime offense stemming from the same incident?
When I was going to college, there was an incident of graffiti being written over cars and walls near a sorority. This in and of itself is not a huge, sensational crime. However, what the graffiti said was something along the lines of “Go back to New York, kike bitches”.
I can certainly see why there would be a penalty greater for this sort of thing than writing “Kilroy was here”. After all, the former isn’t just destruction of property – it’s terrorizing people. Likewise, if a bunch of guys get drunk and beat someone up, yes, they should be punished, but I think guys that deliberately target a group – like blacks, women, minorities, or the handicapped – should be punished more because they are harming (by terror) more than just the people they are attacking. (Another example: a former roommate got beat up while leaving a bar and had a brick thrown at his face. No, not good by itself. But he told the story a lot more often than he might have because the guys were yelling “faggot” at him when they were doing it.)
For crimes like murder, perhaps the distinction is irrelevant (if your motive is to kill, it doesn’t really matter why, in so long as it’s premeditated). But for smaller crimes, particularly non-violent crimes (like vandalism and trespassing), the sentence is small and hate crime legislation may have a place.
I know some folks argue that it shouldn’t matter – if you intended to committ a crime, and you then went through with it, it should all be punished the same. However, we do accept (traditionally, anyway) mitigating circumstances in favor of the accused – stealing a loaf of bread because you are starving is not as bad as stealing a loaf of bread because you are bored – so why not in favor of the state?
Quick answer: The double jeopardy clause, as interpreted by the Supremes, does NOT prohibit a federal criminal prosecution following an acquital in state court (or vice-versa) for the same conduct. Remember the cops in the Rodney King beating? Acquitted in State court, and then convicted in federal court. No double jeopardy issue.
I don’t want to step on KellyM’s toes, but the Supremes have dealt with the exact issue you are talking about. It is actually a very debated issue right now in legal circles, due mainly to the federal government enacting more and more criminal laws.
Double Jeopardy Clause:
Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.
Supreme’s Rulings in Abbate v. United States and others have interpreted the term “offence” in the double jeopardy clause as specific to each jurisdiction. The rationale is that violating the State law prohibiting the hate crime is separate from violating the Federal law against the hate crime, so there is no violation of the double jeopardy clause. It’s a doctrine called dual sovereignity, where, since both the States and the Feds have concurrent jurisdiction, they are not considered the same for purposes of the double jeopardy clause.
So to answer your question, nope, unless the law changes soon, there is not much LEGALLY stopping successive prosecutions after acquittal. People didn’t seem to mind it in the Rodney King case, but who knows now.
Finally, this is not particular to hate crime legislation, and, in my opinion, has no relevance to whether said legislation is a good idea or not.
Since none of you know me, I find it rediculous that KellyM is so sure I’ve never been attacked or harassed or anything because of my race, gender or religion. I have the position I do against hate crimes because regardless of people’s beliefs about me and what they’ve said or thought about me, I support their right to think, say, and believe anything they want.
My problem with ‘hate crimes laws’ is that they punish the act of hating. They punish a belief, they use thoughts to decide the criminal seriousness of a crime. In this country, no matter how morally bankrupt and ethically wrong a belief is, it’s not illegal. And it shouldn’t be used to decide if graffiti is a misdemeanor or a felony.
You owe me an apology for making assumptions about who I am and what I have faced in life, though. You assumed because of an opinion I hold over ‘hate crimes laws’ that you know certain things about me, and you shouldn’t have done that. It’s rude, disrespectful, and not in the general interest of intelligent discussion to characterize my life to attack my position. Debate my points, but don’t tell me what kind of person I am or what my life must be like to do it.
struct:
My sister would very likely do what I’d do in that situation and take her own life in such a position, hopefully with the help of her doctor. We have both seen too many loved ones suffer needlessly to allow it to happen to ourselves.
The bottom line is that I oppose ‘hate crimes laws’ because they take into legal account the beliefs in a person’s head to determine the legal seriousness of a crime. They make a person’s thoughts a crucial issue, which seems a lot like punishing people for their beliefs moreso than their actions, and because it’s so subjective. I don’t know anyone who can definitively prove what was in a person’s mind, at all. It’d require the guilty party saying “I believe _______.” to know for sure. The rest is speculation based on known events and facts - not all of which the guilty party might be sure of.
of course, catsix we punish according to thoughts all the time.
Example - husband gets in car accident, wife is killed. Husband might not even get prosecuted (depending on the accident)
husband kills wife when he finds her in bed w/another man. Most often this would not be considered 1st degree homicide.
Husband plans carefully to kill wife, this does get prosecuted differently.
Husband pays some one else to kill wife, again it’s prosecuted differently.
same act (killing of wife) difference is the thinking behind it.
We talk about motive all the time in criminal court. The motive behind a murder for hire, arson for $$ etc. does determine in quite a few cases, how the case is handled.
So are you saying that planning a murder and conspiring to commit murder are exactly the same as having a negative attitude about _______s?
It’s not a crime to believe that all ______s are bad, to hate them, or to talk about hating them. It is a crime to set up a plan to kill them, follow that plan, and carry out the act of murder.
And I don’t think actively planning a crime, such as following the victim, obtaining a weapon, devising an escape, is quite the same thing as someone who sits around complaining that ‘I hate _____s.’ all day.
Planning is not ‘opinion’, but (as disgusting as this is), racism, sexism, religionism - those ARE opinions. And that’s why I think they’re different when it comes to matters of law.
We could start punishing people based on their opinions - opinions I despise - but what happens when the people in power despise my opinion? Will it be a felony if I print it up in a newsletter and distribute it? What if I put it on a sign in my yard? Is it a hate crime?
But a criminal defendant’s state of mind is always, no exceptions* a necessay element of the prosecution’s case. Did the defendant intend to do it, was it premotivated, did he know his actions could result in the harm? Motive is generally not a required part of the prosecution’s case, although it’s necessary if you want enhanced penalties for under a hate crimes law, and some criminal charges absolutely require proof of the defendant’s motive for there to be any conviction at all. Point is, there is nothing special or unusual about state of mind inquiries in criminal law.
In many cases, of course, we do have the guilty party saying he intended to target a person based on the victim’s race, religion, sexual orientation, etc. Such confessions are very common. Even without a confession, it’s certainly possible for a jury to determine a defendant’s motive, beyond a reasonable doubt, based on evidence other than direct confessions. The Jasper dragging death wasn’t prosecuted as a hate crime–in fact, it couldn’t have been at the time–but the defendants’ avowedly racist statements, white supremacist ties, and swastika/lynching tattoos certainly indicate that James Byrd was dragged to death because he was black. The simple fact that the defendant and victim are of different religions or whatever will never be enough for a defendant to be tried for a hate crime.
*First person to mention strict liability crimes, which are virtually nonexistent, will be the lucky recipient of a smilie.
So Pearl Harbor and the sacking of Washington by the British in the war of 1812 were hate crimes because they were “attacks on America”? Nice, Wring. First off, hate crimes target a subset of the population - not an entire nation state. Second, media catch phrases are a poor choice to base an argument on - especially when they are interpreted incorrectly.
Hamlet, thank you for the analysis of the double jeopardy issue. I must admit I am severely dismayed with the judicial branch’s stance on double jeopardy. In this case, I whole whole-heartedly disagree with the robes. I believe dual sovereignty is double jeopardy. This, as you said, applies to far more than hate crimes. Because of this, I think the issue is relevant to whether any particular legislation is a good idea. The constitution is in a sorry state when parts of it can be ignored whenever it is convenient.
Hate crime laws do not “punish the act of hating”. They punish acts of violence motivated by hate. You are free to hate anyone you want as long as you do so nonviolently.
Please read the Wisconsin case I cited earlier. Chief Justice Rehnquist, in my opinion, did a good job of covering this particular objection to hate crime sentencing enhancers. The notion that “state of mind” or “motivating belief” should be off-limits to sentencing judges is, quite honestly, inane, both in light of centuries of judicial history and in light of the generally understood purpose of a criminal justice system. We most emphatically do punish people for how they put their beliefs into action; hate crime laws do not change this one bit.
smilie.