Hate Crime Legislation Revisited

Great Debates
101

On the contrary, they enhance it. They permit a judge to impose a greater penalty in precisely those cases which warrant it.

There can be no argument that legislature has plenary authority to define crimes and set the punishment for crimes, subject only to the limits imposed by the Constitution. There is no usurpation of judicial authority when the legislature, in the exercise of this power, provides instruction to judges on the factors which they are to consider when fixing sentence. Such usurpation (IMO) only occurs when legislatures strip judges of discretion entirely (mandatory life sentences, “three strike rules”, and so forth); in my opinion such legislation violates both due process and the Cruel and Unusual Punishments clause (Harmelin v. Michigan notwithstanding).

However, no hate crime statute I have seen interferes with judicial discretion. In most cases all the effect of a special finding of bias motivation does is allow the judge to impose a greater sentence than otherwise would be permissible for the underlying crime. In some situations, such a finding may also increase the minimum sentence (usually, in cases where a special finding of bias motivation results in the offense being upgraded from a misdemeanor to a felony). In addition, the trial judge is free to entertain a motion for a directed verdict on the special question of bias motivation before the question is even sent to the jury, if the prosecution has failed to make a decent case for it. (Not all states require a special finding, leaving the determination of bias to the bench alone or requiring a separate pleading in the indictment. I am basing my comments on Wisconsin’s statute, which is footnoted in the Mitchell case I cited earlier in the thread).

For what it’s worth, I don’t think hate crime laws offend the spirit of the Constitution. If anything, they reinforce it. The Constitution, especially as amended by the First and Fourteenth Amendments, embodies the principle of a pluralistic society. Hate crimes are offenses against pluralism, and prohibiting them seems very much in keeping with promoting a pluralistic society.

102

What kind of rhetorical nonsense is that?

Esprix

103

[smartassed irony]
Now now, Esprix, Beeblebrox has taken the time and trouble to be a Doper, and therefore should by default be considered to be of high mental acuity and good character. Therefore, he/she should automatically be accorded the benefit of the doubt as to the attempted cogency of her/his arguments. Your failure to grasp the thread of what he is getting at is probably just a rare lapse on your part.

I am in no way making any judgement about any physical characteristics anyone might possess, such as the relative width of anyone’s cranium.
[/smartassed irony]

I think what he’s getting at here is that one can’t make a judgement about a criminal action prompted by a given impetus without making a judgement about the impetus itself. For the sake of devil’s advocacy, I’ll further flesh out his argument by pointing out that while crimes motivated by certain thought processes should obviously be singled out for additional punishment (e.g., “I killed her because I hate her kind,” “I burned their church down because I don’t want them in my neighborhood,” “I robbed him because his kind have no rights in my book,”) isn’t there a potential danger when you start getting into the grey areas? Here’s a hypothetical: what if the notion of “hate crime” existed back in the bad old days when ethnic segregation was both de facto and de jure in this country? What if sit-in participants subsequently convicted of trespassing and disturbing the peace received a harsher sentence because their crimes were motivated by “hateful integrationist ideals”?

Again, let me make myself clear: I am not trying to argue both sides of the issue, and I am begging somebody, anybody, to PLEASE point out the flaws in the Satan’s Suppositionals that I’ve brought up.

104

The logical rear side fakie with a double spin kind. :slight_smile:

If I am understanding you correctly, then hate crime legislation will not raise the minimum sentence unless the judge wants it to. i.e. if the judge does not think bias motivation is applicable, he can stick to the normal sentencing guidelines. If this is correct, then yes, my concerns are unfounded.

Learn something new everyday.

105

[Moderator Hat ON]

Struct, you have two threads in the Pit complaining about your warning; that is the proper place for you to make “smart-assed” references to your calling someone thick-skulled and the subsequent fallout. Here, it is just a distraction to the debate on hate crime legislation. Besides, referring to the “width” or someone’s cranium would mean they had a big/small head, not necessarily anything to do with the relative thickness of their skull; so it doesn’t even correlate properly, though you were heavy-handed enough that no one could miss the allusion.

If you want to continue to bitch, even “subtly” about your warning, do it in the Pit. It is not appropriate in this forum. Don’t make me step in again here.

[Moderator Hat OFF]

106

This is kind of a strawman argument. It should be fairly obvious that if your hypothetical existed, it would be bad, but it wouldn’t be the current hate crime legislation we are discussing in this debate. And it would be bad, not because your hypothetical legislation enhanced penalties for any motive, but because it enhanced penalties for honorable motives. Which brings us back to earlier statements arguing that motives can, are, and should be considered when determining sentencing. You can’t avoid it by saying “what if the motives punished were abhorant ones.”

Look at it this way, if they made a law that Murder of a person of a minority race should only be a misdemeanor, that would be bad too. That doesn’t mean that Murder statutes should not be enacted. Hopefully your devil will understand now.

107

Broxie (I’m just gonna see how many I can get away with.)

I don’t want you to be misled here. Some hate crime legislation, like the one in Illinois I described earlier, can, in fact, raise the minimum penalities. When a case goes from a misdemeanor to a felony, the defendant is no longer eligible (except in certain, inapplicable cases) for supervision, which means there is no conviction entered. In addition, a felony conviction may have more of a social stigma than that of a misdemeanor. So there are cases where the “minimum sentence” is different.

If you want to argue this relatively minor difference in sentencing options for the judge makes a difference, you factually can. I just think the argument that the legislators are usurping the judiciary branch is flawed because the legislature is exactly the branch to determine these things.

108

**'s alright, but if you keep it up, I’m gonna make you start calling me: El Temporale y Galactical Presidente Zaphod Rosicrucian Beeblebrox III, Canis Major

Well, it was kind of a minor complaint anyway, but the judiciary is bound by law in interpreting law. As long as its not unconstitutional, the judicial branch has to abide by it. So they determined Congress could do it - but that doesn’t mean they liked it. Its a minor abuse of a perfectly legal legislative power.

Anyway, I’ve run out of possible arguments for now, so I’ll step back and see where else the discussion leads.

-Beeblebrox, Canis Major

109

I refuse to accept your argument that the legislature “abuses its power” when it dictates the definitions of crimes and the sentences thereof. The legislature does abuse its power when it makes unreasonable crimes or unreasonable sentences, but that’s a due process argument, not a separation of powers argument: legislatures have no right to make unreasonable laws. It’s just as much an abuse of power if the legislature leaves discretion to a judge to set sentence and the judge abuses it by setting unreasonable sentences.

110

Correct. Apparently the person that was keeping me informed of the trial was misled.

Maybe there is another possibilty. We could have been confused about what the actual charge was: maybe the prosecutor was trying to get a murder conviction by claiming that Jon killed the homeless man because he was gay, instead of in self defense. That means he wouldn’t have been charged with a hate crime, per se.

Either way, I’m pretty embarassed. I certainly had no intention of providing an inaccurate example of how hate crime enhanced sentences could be abused. My apologies.

Hamlet, call bullshit all you want. The incident happened several years ago ('96 or '97 I believe) in Austin, Texas which is in Travis County. Research away. His real name is John or Jon; I don’t know his last name because I hardly knew him. He was a friend of a former roommate. It is possible to be peripherally connected with people, you know. It may not matter to you now since he obviously wasn’t charged with a hate crime, but I don’t appreciate the implication that I’m lying.

Let’s look at this a different way, shall we? The designation of a crime as a “hate crime” means an enhanced sentence, correct? Well, the death penalty is also an enhanced sentence, now isn’t it? We’ve seen how the threat of the death penalty is abused by prosecutors, haven’t we? So why would hate crimes be any different?

111

It really doesn’t matter to me now. You admit to giving an inaccurate example, and apologize for it, so I have no problem.

The threat of anything can be abused by unscrupulous prosecutors. Threatening to ask for the Death Penalty instead of Life. Charging Arson in the First Degree instead of Arson in the Second Degree. Charging Aggravated Battery instead of Battery. You run into the same problem as Beeblebrox where you take an issue with ANY criminal prosecution and tack it on to hate crimes. It doesn’t make hate crime statutes any less desirable to have though.

112

Actually, wring, you’re exactly wrong. You are making a common mistake: confusing intent for motive. They sound similar, but they are not the same.

Intent simply refers to the intentional nature of the act, i.e., it wasn’t an accident. It means Smith pushed Jones off the ledge rather than accidentally bumping into him. Intent is almost always an element to a crime (a few strict liability and/or negligence-based crimes do, of course, exist – it doesn’t matter if you didn’t intend to sleep with an underaged person to be charged with statutory rape, for example).

Motive refers to the why of the crime: for example, Smith killed Jones so he could steal Jones’ money, or Smith killed Jones because Jones had embarassed him publicly, or Smith killed Jones because Smith held an irrational hatred of some characteristic (say, race) of Jones. Motive is not an element for most crimes (except, of course, for hate crimes legislation). The prosecution, as a matter of law, does not have to prove motive to secure a conviction (they often do, of course, because it helps make a persuasive factual case to the jury, but it isn’t strictly required).

Let’s look at your examples:

  1. Accidental car wreck. Since you’re stipulating the wreck was accidental, there’s no murder charge here; the worse that he can probably be charged with might be negligent homicide. Conceivably it could be voluntary manslaughter if the husband’s driving was “reckless.”

  2. Cheating wife caught and killed. This is probably murder. It may be mitigated down to involuntary manslaughter if the defendant acted on a sudden, uncontrollable passion (the formulation varies from jurisdiction to jurisdiction if it is recognized at all). But assuming the husband was in control of his faculties and knew what he was doing, this is plain 'ol murder. The important thing to note is that the mitigation is not based on why the husband wanted to kill his wife, but rather the degree to which the husband acted intentionally.

  3. Husband methodically plans to kill wife. Again, this is plain 'ol murder.

  4. Husband hires a hit man. This would also be plain 'ol murder, except that some jurisdictions heighten the penalty for contract hits (this is meant to give prosecutors a bigger stick to whack organized crime). But, you’ll note, it isn’t the motive behind the killings that elevates the offense: it’s the fact that the defendant hired someone else to do it. It doesn’t matter why the defendant wanted the victim dead, only that he chose this particular manner in accomplishing that end.

So hate crime legislation is unusual in that it brings motive in as an element of a crime – we do not, as you claim, “punish thoughts all the time.”

113

wring, you’re ignoring an important point: you’re saying it’s OK for the law to have heightened penalties for crimes committed due to hatred of a certain characteristic held by the victim because those characteristics are in the law. Well, why are those characteristics protected and others not?

If someone with an irrational hatred of the legal profession decided to take Shakespeare’s advice and kill all the lawyers, why is that hatred less worthy of our scorn than hatred of other groups? (Admittedly, I have a personal stake in this one :slight_smile: )

Or if you want to exclude groups that people voluntarily elect to enter, what about looks? What if a guy decides he wants to off all the “beautiful people”? That’s a hatred based on genetic characteristics that the victim can’t help; why should that not be a “hate crime”?

What about tall people, or fat people, or people named wring, or people who have red hair?

Yeah, yeah, I know, there hasn’t exactly been a huge spate of beauty-related crime in our history. But the better answer, it seems to me, is vigorous prosecution of crime whereever it occurs. Send a message that certain acts simply will not be tolerated, and we don’t give a damn why you did it.

And if the laws need to be toughened to deal with those acts, fine. The comparison to terrorism is an apt one: any act designed to terrorize a community, regardless of why the perpetrator committed that act, should be punished harshly. It shouldn’t matter if a cross is burned because the perpetrator hates black people and wants them to leave or because the perpetrator hates Democrats and wants them to leave – that act should be punished harshly.

114

Dewey only have a few moments here, so might not get to all of your concerns.

You selected certain specific quotes, which were in response to other posters. THe answer is, of course motive and intent are different, but also that we do in fact legislate based on what person’s motives (ie reasons behind the action, thoughts, plans, vs. actions) all the time.

And, I note that you did the typical thing again, and selected references to violent crime, when hate crime legislation is mostly used for things like property offenses, threats, graffitti type stuff (data has already been posted). And therein is the issue.

A Nazi swastika painted on a synagog has a different relevence, different intended effect than “bobby loves joanie” painted on the same synagog. and of course you know this, as do most folks who take the stand that hate crime legislation isn’t necessary.

Regarding the ‘why not red heads, persons named such and such, lawyers’ different answers.

Lawyers is a selected profession. You are subject to jokes and the like, but it was a choice that you made. Generally speaking ‘protected classes’ are specifically for things over which one has limited control (*addded in ‘limited’ since in one view one’s gender may be considered a choice).

The name - well, actually that could come into play, if the name involved was ‘shwartz’ or ‘Giovanni’ or ‘achmed’, where one’s nationality or ethnic group might come into play.

And, if you can demonstrate that red heads are subject to red headed based attacks, I’d be happy to help you lobby for their addition.

happy now?:smiley:

115

Can you give me an example, other than hate crime legislation, where the reasons behind an action are punished? Not whether an act was intentional or not, but on the reason the perpetrator performed the act?

**Well, I was responding to your murder examples, in order to demonstrate some points that were factually incorrect. But that hardly changes the analysis. Property crimes have an intent element, too, and they also lack a motive element (outside of hate crime legislation).

In fact, the analysis of other crimes is more straightforward, since you generally don’t have to deal with the several lesser included offenses (e.g., involuntary/voluntary manslaughter, negligent homicide).

You’ll find that, even crimes that allow for aggravating factors to heighten the penalty, those factors are based on what the perpetrator actually does rather than the motives behind his actions.

**

I quite agree that they are different, but I think they are better handled through penal codes addressing terroristic threats (which a burning cross or swastika on a synagouge most certainly are). It shouldn’t matter if the perpetrator is motivated in your example by a visceral hatred of Jews or if he is motivated by a fiscal desire to close the synagouge by driving away its members so he can buy the land it sits on. Terrorizing a community ought not be tolerated, regardless of the motives of the perpetrator.

**

You miss the point: why should hatred directed at someone solely because of their hair color be any less offensive than hatred directed at someone because of their skin color? Is bigotry based on some genetic quality any less offensive because it is less widespread?

What of fat people, or ugly people? I bet more than a few nerdy types get beat up every year (that’s assault, you know). Why tolerate that?

116

If I am not mistaken, certain motives have been significant in capital sentencing laws adopted post-Furman. One of the common capital qualifiers is murder committed with the intent to prevent a witness from testiftying. Frankly, this sounds like a motive to me: the murder was committed with the motivation of silencing a witness. Or take the moneylaundering statute, which makes it illegal to structure a transaction for the purpose of avoiding the reporting requirement). Is the required intent (to conceal a transaction) an intent or a motive?

While the four MPC intents (intentionally, knowingly, recklessly, and negligently) do not touch on motive, I think most of these specialized intents do reach to motive as an element of the crime. And as any prosecutor can tell you, proving motive is virtually required in any prosecution involving an intent beyond recklessly.

117

I disagree, KellyM, though the things you note definitely blur the line.

The “silencing the witness” statute, it does not matter why you don’t want the witness to testify; it only matters that you are trying to stop him from testifying. It doesn’t matter if you work for John Gotti and are doing it to protect your boss, or if you’re just a rabid mobophile who kills mob snitches for pleasure.

Similarly, for the laundering statute, it doesn’t really matter why you want to avoid reporting requirements, it only matters that you intended to avoid those requirements. It doesn’t matter if you did it to hide drug money or just out of an ideological belief in financial privacy – you’re still liable under the law.

I agree with you about the practical necessity of showing motive at trial, but again it isn’t an element – instead, showing motive is mere evidence of intent. But you’re still guilty under the same murder charge regardless of if you killed Granny for the inheritance money (motive) or if you just did it because you felt like it one morning (no motive). The prosecutors may have a harder time securing a conviction in the latter case, but the law is clear if we stipulate the facts.

118

stalking legislation. It’s not illegal for some one to make phone calls, write letters, drive down a street, walk on a sidewalk. Yet, in stalking laws, if the intent of these actions is to terrorize the victim, and it’s demonstrated, the person does time.

119

I think motive which offends core values is so deeply embedded in statutory schemes that we do not always see it as comperable to something like hate crimes. Robbery, for instance, is justified by the lawyer as combining the offences of assault and theft but I think it can be equally argued that the offence demonstrates the extra protection granted to economic security under the law. The law makes a large distinction when considering whether a beating was for the $10.00 in the victims pocket or because he looked at the perpetrator’s girlfriend. The theft is petty, the economic motive is the real difference.