-
Is this extra penalty given for the motivation, or for the person being killed? (Similar to killing a police officer). If a person kills a witness to a previous crime, must the prosecution prove that they intended to kill them for that reason? (Likely it would be assumed in any event, if they were related to the crime, so this is a very technical question)
-
The extra penalty for killing a witness is not punishing for a protected expression of ideas. If someone calls for a specific witness to be killed, it is a crime AFAIK (correct me if I’m wrong in this). I’m not sure if you dispute this distinction, so if not let it serve to clarify.
*Originally posted by Maeglin *
**
A straight, white, Christian male would be protected by the law every inch as much as a homosexual Puerto Rican.
**
Not if a hate crime committed against him isn’t identified as a hate crime. I was attacked and beaten by a couple of drunken blacks who followed me for a couple of blocks shouting things such as “Come back here, you white motherfucker, I’m going to kick your ass.” Quite obviously this was a hate crime. But would it have been prosecuted as a hate crime under current laws? Not necessarily. Most likely hate crimes against whites would not be classified and prosecuted as hate crimes in the first place, so I am skeptical that hate crime laws provide equal protection to “white straight Christian males” (who seem to be the chief bugaboo of liberal demonology.)
**The fact that straight white males are rarely victims of hate crimes is completely and utterly irrelevant.
**
What’s your factual basis for this claim? According to Justice Department statistics (I don’t have the URL handy), blacks kill whites three times as often as whites kill blacks, even though whites outnumber blacks 8 or 9 to 1. Figures for assault are similar. Clearly a white is more likely to be the victim of racial violence than the perpetrator of it–but that’s a dirty little secret lefties don’t like to talk about.
So all cases in which a black person kills a white person (or vice-versa) are racially motivated? Huh. You learn something every day, I guess. Out of curiousity, how do you derive that conclusion from numbers alone? Or do you mean something different by “racial violence” that is completely unrelated to the topic of “hate crimes” and is therefore irrelevant?
Due process in the criminal law always requires that the prosecution prove some degree of “mens rea” toward each element of the charged offense. For murder one under New York law, that means that the state must prove that the defendant (1) intentionally engaged in some course of action which caused the death of another person, (2) either intended that course of action to cause the death of another person, or had knowledge that that course of action would in fact cause the death of another person (without the specific intent to do so), and (3) knew that either the person actually killed or the person intended to be killed was a police officer or a witness to a (prior) crime. (There are other ways to reach murder one, but this is what applies to the hypothetical.) If you set out to rob a liquor store and in the course of doing so intentionally shoot the attendant, you do not commit murder one even if the attendant happens to be an off-duty cop; you have to actually know beforehand that the attendant was in fact a police officer. The jury may permissibly infer that the defendant knew that his victim was a police officer or a witness, when the evidence is sufficent to rationally allow such an inference.
Absent evidence that the defendant knew of his victim’s “special circumstances” the state cannot reach the elements for murder one and has to settle for murder two.
The law acts to prevent the motivation of capping a witness who is about to rat out on you, but the state doesn’t actually have to prove that the witness was a rat. Motivation is almost never an explicit part of the criminal law, but is almost always lurking around just below the surface. Proving motive at trial does make the jury more likely to convict, however.
Personally, I am not convinced that hate crime laws do any real good. Hate crimes are generally committed by people who simply do not care about being punished for what they’ve done. The law does not here function to prevent the act through fear of punishment. And meting out stricter sentences on such offenders seems as likely to strengthen their hatred as to cure it. My personal feeling is that people who commit crimes motivated by group hatred is to treat them as mentally ill and confine them until they are in fact cured, but I doubt we’ll see that any time soon.
Finally, in response to LonesomePolecat, the mere fact that the offender and victim are of different race/religion/gender/etc does not make the offense a “hate crime”. Neither does the use of a racial epithet during the offense, although that certainly is suggestive. The identifying characteristic of a hate crime is animus toward people similar to the victim. Neither animus toward society as a whole nor animus toward the victim specifically is sufficient to constitute a hate crime.
Another example: robberies are rarely hate crimes. The motivation in a robbery is to steal. Target selection may be based on group identification, but the group identification is not based on animus but rather on a belief that, e.g. well dressed white people are more likely to have valuables worth robbing. Selectively robbing white people is not, therefore, automatically a hate crime.
An interesting question would be, Should Freedom of Speech not protect speech which promotes acts that, if performed, would be illegal?
This is actually sort of from a different post which asked if it was immoral to threaten what it would be immoral to do and I find it very, very appropriate here.
Were this the case hate crimes would find themselves, I think, in much sounder grounds legally. However, this does put the morality of the Constitution on some shakey ground and 1984 comes into the picture even more than metaphorically. That is, information is illegal and banned; that information never existed. It would, like Newspeak, eliminate any chance for responsibility, legalization, etc…once a law, always a law since no one would ever know any better (and to say differently would be criminal in itself!–quite a paradox…that it is illegal to try and change laws in effect).
Some say this is a good thing. I find the short term gains can easily equate to long-term losses in such a case. This is especially so in, for example, drug manufacture. As it stands there are agencies both public and private which have access to illegal drugs for whatever reason the DEA allows people access to drugs. Were this information to become illegal, the DEA labs would not be able even to publish information regarding new developments in busting these meth labs (to pick a drug). The only other option is to continue our current “caste” system (of a sort) where privilege is granted to a few.
Now, a stretch from hate-speech to drug information isn’t that far when one considers the amount of people opposed to each. I find that information-banning, message banning, etc, to be completely detrimental to our way of life regardless of its effectiveness in removing some unwanted crimes in our wake.
To be honest widjas, I don’t know. I’ll look at the statute, but my guess would be that they don’t distinguish. Similarly, I don’t know if you can only be hit with murder 1 if you know the guy’s a cop. This all may go back to the intent, rather than the motivation, issue.
But beating up a Inuit gentleman because you hate Inuits is not a protected expression of ideas either. First, it is not “speech” as defined in our constitutional jurisprudence. Second, if you are referring to punishing someone to a greater extent because of what he/she said while beating up the Inuit gentleman, free speech doesn’t protect you from the consequences of the words you use. If, while killing the witness, you are heard to say “you’re going down 'cause you ratted me out,” that admission may be brought forth at trial to prove murder 1 rather than murder 2. Similarly, if you say “you dirty Eskimos need to be taught a lesson” while beating the man, this admission can be used against you.
Third, free speech has always had limits. You can say in front of a crowd “All Inuits deserve death”. You can’t say, “see that Inuit over there? Kill him.”
Sua
How about this: Department of Justice
Out of the nearly 5000 incidents reported, only about 1200 were anti white (given the racial distribution of our country, it would then follow, that whites would be much less likely the victim, don’t know that I’d use the term “rare” tho)
The same problem exists when the victim is a minority. The standard is, as always, “beyond a reasonable doubt” and for that reason many hate crimes will not be prosecuted as such.
and
Talk about reading too much into things. Maeglin used “white straight Christian males” as a demonstration that all persons, even the majority, are protected by hate crimes. If she had used “black gay pagan transsexuals”, it wouldn’t have made the same point.
And how/why is hate crimes a left-right issue? Last I checked, liberals are the ones who want to extend free speech protection into everything, and conservatives believe in stricter punishments. I’ve never gotten this.
Sua
Also keep in mind that the DoJ only reports as a “hate crime” crimes where the local constabulary documents the offense as a “hate crime”. They do spot checks to see if areas are underreporting, but the FBI lacks the manpower to independently investigate every offense committed in the country to see if it’s a hate crime or not.
As you will see at the Dopefest, Sua, I am quite male.
Sorry about the hijack. 
MR
TRIS says:
A de facto conspiracy, if proven, would be punishable as such. Same with intimidation, same with murder. The problem is that if you have unrelated people who all happen to be bigots and who all enjoy intimidating their black neighbors, their actions, taken together, do not consitute a conspiracy unless they in fact conspired. In other words, the fact that you are dealing with 100 assholes as opposed to one lone asshole does not elevate assholishness to a hate crime. Even if the aggregate effect is admittedly intimidating.
There is no difference between a crime “as accomplished” and a crime “as it appears.” If you can prove the elements of the crime, the defendant is guilty. If you can’t, he’s not. If you have 100 people all committing the same crime, that does not serve to change the nature of the crime itself. If you feel that the crime as it exists is not serving as a deterrent (as evinced by the fact 100 people do it), that to me argues for increasing the punishment, not inventing a whole 'nother crime.
Regarding the difference between motivation and intent, and the creation of new crimes based on motive, SUA says:
By “we,” of course you mean “you.” “We” in my jurisdiction do not do this. Again, I maintain that motive more properly belongs in the penalty phase and should not be included as an element of the crime – in part because motive is very difficult to prove, and in part because the actual, factual crime doesn’t really change and to act as if it does is nothing more than a legal fiction.
In my jurisdiction, a court that imposes the death penalty must show BOTH that the defendant was convicted of a crime for which death is a possible punishment (such as murder) AND that certain exacerbating factors exist justifying a sentence of death. Among those exacerbating factors is motive. The why portion of the proceedings arises in this penalty phase. The only issue at trial is whether the person committed the crime or not; not why he did it. I just think that’s a more reasonable way to arrange things, rather than expecting the State to prove at trial BOTH that Sirhan Sirhan shot Bobby Kennedy AND that he didn’t out of hatred of Irish-Americans.
dopefest?!? Don’t tell me there’s a straight dope convention! Man, for readin Cecil for over three years it took me long enough to get on this stupid message board.
A guy can dream, can’t he?
Jodi, I can think of only one appropriate response – you live in a stupid jurisdiction.
Sua
In your jurisdiction, yes, motivation is part of the penalty phase for some (perhaps all for all I know) crimes. However, this does not preclude other possabilities. There really are very few crimes prosecuted under these laws (as shown in the link I provided), probably because it ** is** difficult to prove motivation. Of course that doesn’t mean that it’s impossible.
We also disagree on if the crime changes. To deface a synagogue with paintings of Britney Spears will cause the synagogue financial harm, perhaps momentary embarrasment etc. However, to deface the same synagogue with swastikas and “death to all Jews” and pictures of the leaders of that synagogue taken at their homes will do additional damage - it may create new and heightened level of fear within the Jewish community that they, in particular because of their faith, may be victims of violence. I see this as a very realistic difference and one that is not handled adequately by other legislation (since the implied threat is not necessarily to any specific individual etc.).
But I still like you, Jodi
KellyM
I don’t understand you. There is a difference between understanding what you are doing and your motivation for doing it.
SuaSponte
Beating up anyone is not protected speech. Beating up is punishable. The issue here is the additional punishment for the idea conveyed that goes beyond the actual beating. Maeglin has suggested (and others have seconded) that this is due to the intimidation of others that is also being done with this beating. This intimidation would appear to be otherwise protected speech. (In your example, the speech is being used to determine the person’s mindset - he is not being punished for the actual speech).
This, of course, is extremely problematic. Clearly there is a line between speech that is protected and speech that is not. In this case, I believe it might depend on jurisdiction. Marching in a Neo-Nazi parade is certainly protected speech. However, if one of the skinheads were to break off from the crowd and wave a gun in a threatening manner at several Jews, would this threatening speech still be protected?
As far as I know, it is illegal to threaten to murder someone, even if the weapon, unbeknownst to the victim, is in fact unloaded.
MR
WRING –
But to me, this still argues for stiffer possible penalties for existing crimes, taking into account motive as an exacerbating factor – not for the wholesale creation of new, motive-based crimes.
Let’s say the existing law provides a penalty of only 100 dollars for defacing property and does not provide that repeated instances of misdemeanor defacement can ever accrue to felony defacement. The legislature determines that this is insufficient punishment, because it does not reflect the severity of hate-motivated defacements such as swastikas on synagogues. What should the legislature do? Create a new crime of “defacement with hateful intent” or provide for stiffer penalties of the existing crime, based on motivation? To me, the latter just makes more sense. The action is the same – defacing a synagogue – and the motive should influence the degree of punishment, not the crime charged. That way, the Britney Spears defacer will be punished differently from the swastika defacer, who in turn may be punished differently depending on whether she is a nine-year-old who thought it would be funny or an adult skin-head intending to frighten and harass.
I also continue to maintain that reserving motive until the penalty phase makes crimes such as murder easier, not harder, to punish as hate crimes, because the State is not obliged to prove a hateful motive in order to secure a conviction. The judge can look at the hateful motive when determining the penalty, but at that point the State does not have the burden of proving it beyond a reasonable doubt.
I am not saying, and have never said, that hateful motivations should not be addressed by the law. I just don’t think they are best addressed (or combatted) by creating new, motivation-based crimes.
But I still like you, Jodi
These are direct intimidation. They are not analogous to the intimidation of other members of a minority group through a hate crime not perpetrated on them. I specifically made this distinction in my earlier post.
With respect, I do not think those numbers mean what you think they mean. Let’s consider it for a second: whites outnumber blacks 8 to 1, and blacks kill whites more often than whites kill blacks. Yes? And? Seems intuitive to me. Because there are so many more white people than black people, you would expect in raw numbers more whites to be killed–by blacks or otherwise–than vice versa. You’re arguing at cross-purposes with yourself.
It would seem that a more fruitful examination of the statistics would look at black on white homicides proportionally relative to black on black homicides: that is, is the incidence of black people killing white people higher, after adjusting for population, than the incidence of black people killing black people. Then you can see the degree to which a white person is more likely to kill a black person than someone of his own skin color. Then you can compare the two rates of incidence, and maybe the results will be worthwhile–although in my opinion there’s too much statistical noise due to socioeconomic disparities to say anything much about hateful motivations.
In conclusion, then: yes, “a white is more likely to be a victim of racial violence than a perpetrator of it,” if you define racial violence as violence by an individual of one race against an individual of another. But that’s to be expected, 'cause there are a hell of a lot more white people than black people!!! Sheesh, you and your fuzzy math…
Sorry for putting your name on that, wring. It was Lonesome Polecat’s post to which I was responding…