Good Lord.
We are talking about what thoughts should be elements of a crime, not whether someone is guilty of said crime.
We don’t have to “prove” which thoughts are criminal; we have to establish which thoughts are criminal - by passing legislation, just like we have done in the murder and arson situations I have described.
But you are still stuck on the “we can’t criminalize thoughts” argument. That argument has been conclusively disproven - we can and we do.
Can we move on to the next step - why do you assert that these particular thoughts shouldn’t be made an element of a crime?
I’m not ready to move past the original arguemnt. Sorry. I don’t think you’ve proven that specific “thoughts” are currently criminal. When we talk about motive or intent, we are talking about whether or not there were ANY thoughts at all (as opposed to accident). We are not talking about the content of the thoughts. We are just asking ourselves “did the guy know what he was doing, did he plan it, etc”. I.e., did he think about it? And as for the murder of a potential witness, I don’t see where thought comes into that at all. Basically the guy has committed a DOUBLE cirme-- a murder to cover up another crime. That’s what seems to make it worse.
But, for the sake of argument, if I were to assume that you HAD proven your assertion, I would still say that it is you who must prove that certain thoughts are aggravating circumstances. If you look at my early post about the bar fight, what would say to that?
My opinion on that depends on what the legislation says. If it applies to federal property, D.C., crimes involving interstate travel, etc., there is no doubt that Congress can.
If it makes a federal crime of all hate crimes, the question becomes much more interesting. First of all, it would fall under the Commerce Clause, not the 14th Amendment (though I personally believe that the 14th Amendment both applies and is the more logical source of authority). So Congress would have to establish that hate crimes affect interstate commerce, and the court would have to accept the connection.
Ten years ago, there would have been no doubt that the courts would accept it. Now, the state of the law is in flux, and I can’t provide any reliable prediction - there are too many variables.
As for my opinion - Congress can and should pass the first kind, the federal property, etc., one. While I’m generally pretty liberal on Commerce Clause issues, I somewhat agree with the Rhenquist Court that the Commerce Clause is not a vehicle to federalize everything, so I’d be opposed to a general federalization of hate crimes.
You burn down a house. If, while you are doing it, you are thinking “fire sure is pretty,” you get convicted of arson 2. If, while you are doing it, you are thinking, “I’m going to buy a boat with the money Louie is going to give me for burning the house down,” you get convicted of arson 1, and you spend more time in jail. It’s that simple.
Please note that an arson 1 conviction is not dependent on whether you actually get any pecuniary gain, but whether you think you are getting a pecuniary gain.
Pay attention, John. Intent and motive are two different things, and the difference has already been explained.
Intent is whether you had the mens rea (roughly, “state of mind”) to commit a crime.
Motive is why you committed the crime - IOW, what were you thinking.
In most instances, motive is irrelevant. However, in many cases, motive is an element of the crime.
The thought is why you are killing the person.
No argument, son. I have. Ask any lawyer (like me).
You are still saying it wrong. First, I don’t need to prove anything. This is a political argument, not a scientific one. Hate crimes legislation will pass if that is the will of the people, not if an equation has been satisfied.
But I will present my argument, which is a simple one. The punishment meted out for crimes has always been a reflection of our values as a society. As in the arson example, we consider that the destruction of property and threat to human life by fire is more heinous if the reason you did it was for monetary gain.
We consider rape to be a considerably more heinous crime than assault, even if the monetary impact and physical damage is equivalent in both crimes, and we send the rapist to jail for a lot longer. We think you are worthy of more severe punishment for stealing $50 dollars if you use a knife than if you steal $5,000,000 if you use a computer, even if you don’t physically hurt anyone in either situation, because we are outraged by the idea that you would threaten to end the life of another for money.
The list goes on and on. All of criminal law is a reflection of what outrages us, and how much it offends our sense of decency and justice.
And for me, the concept that, in this day and age, a person will beat up, rape, kill, rob, etc., another human being merely because of the color of his skin, or the deity she worships, or who he goes to bed with, is an outrage. It offends and demeans us a a people and as individuals. And those who commit a crime with that motive deserve harsher sanction.
Thanks for the opinion Sua. I am inclined to agree with you, a broad federal hate crime law would be an unconstitutional exercise of power under the commerce clause. I disagree with you that it could rightly fall under the XIV Amendment.
My impression is that the proponents are hanging their hat on the “equal protection” clause – if the states are failing to protect specified groups of their citizens who are known to be victimized for one reason or another, the Fourteenth Amendment’s equal protection clause, being a part of the Federal Constitution, enables the federal government to step in and protect those rights.
As for the “hate speech” argument, no “hate crimes” law makes criminal an act which would not be criminal without it – it defines the motive as an aggravating characteristic. Contemplate the arson distinction in New York that Sua defined above; the act itself is a crime; doing it for expected monetary gain makes it a more heinous crime. Assault, harassment, etc., are already crimes; committing one of them because you hate women/blacks/gays/Jews/ Estonians/left-handed Albanian midget Lesbians with Tourette’s syndrome simply becomes a higher degree of the same crime, or (in the law contemplated in the OP) a Federal crime, like interstate transportation of a stolen motor vehicle makes what was a state crime (grand theft auto or the equivalent) a Federal crime.
One thing that this discussion of hate crimes, interesting as it is, has neglected is the expert opinion of Sen. Smith that there is growing support, on a human-rights level, among Republicans for measures of this sort. I’m fascinated by that stance – it corresponds to the Republican Party I knew and was a member of for over two decades in New York, rather than to the Lott/Armey/DeLay school of thought that makes the news and that I see exemplified in much NC Republican speechifying.
