So are the “thoughts” to want to kill a juror.
Since there are more white people than black people, a crime that terrorizes whites should be alot worse than one that terrorizes blacks…no?
I love how you focus on this part of my post, and totally ignore the much larger part of my post that addresses your incorrect assumptions about “free speech.” 
Which I’m going to address because you continue to fail to understand the difference between “free speech” and “motive.” So let’s clarify with a simple example.
John Doe is at the bar on a Friday night with a group of acquaintances from work. He doesn’t know them really well, having started a new job not too long ago, but they seem like alright guys, typical for the construction industry. John is a fairly middle-of-the-road guy, not too political in his thinking, but doesn’t really have many strong viewpoints. His brother is homosexual, a fact John doesn’t mention to many people because it gets him into uncomfortable discussions, since many of the people with whom John finds himself have very definite opinions about “gays” that differ from his.
John and his work buddies have several drinks at the bar. Late in the evening, a male gay couple walk into the bar. Their arrival is greeted with less than welcoming words from the assembled patrons; the atmosphere gets increasingly hostile to their presence. They leave, having heard some direct threats to their physical well-being on the part of the bar patrons. Indeed, the man sitting next to John at the bar, part of the crowd John is with (let’s call him James), makes a particularly strong statement about beating the crap out of the “fags.” John, who has had more than his usual amount of alcohol manages to chime in with an emphatic “Yeah!” Having built up a sense of companionship over the course of the evening with the workmates, he gets carried along in their emotions.
Shortly after the couple leaves, a few of the patrons, including James and others from John’s work, get up claiming they need to teach the “fags” a lesson for coming into a decent person’s bar. John, somewhat blearily, follows along. The group exits the bar, catches the couple, and beats them severely; John doesn’t actually hit anyone, but he is in the group and yells obscenities at the couple as they are being beaten. The police arrive, and break up the attack, managing to arrest John in the process. Witnesses establish the preceeding facts.
Now, John faces criminal charges of a “hate crime.” Likely he will be found guilty and sentenced accordingly.
For what is John being punished? His thoughts? His speech? Or his actions, and their motive?
Well, clearly not his thoughts; John doesn’t hate gays at all. His “free speech?” Well, no. No one is punishing him for having said, “yeah!” Had he stayed in the bar and left it at that, he’s home free. But he engaged in a physical assault and battery which was motivated by the selection of the victims on the basis they were homosexual. John was a part of that; that was his “motive” as much as anything can be said to be his motive. For this, John will have to face extra time in jail upon conviction.
So, we see that the “thoughts” aren’t what are being punished (not that that matters anyway since, as I and others have pointed out, “thought” isn’t protected by the First Amendment). Nor is “speech” being punished. But just as we consider it worse to kill someone with the intent of furthering certain types of criminal enterprise, so, too, do we consider it worse to hurt or kill someone as a result of their identity within certain classifications.
Which brings me to your comments I have quoted above. Obviously 6 is greater than 5, and 5 is less than 6. We have no quarrel here. But if we punish crime A with prison for a term of 3 - 5 years, and have done so for decades, and then we come along later and establish that crime A + hate will be punished with prison from 5 - 7 years, we have hardly devalued our view on crime A. We still feel crime A is a problem. But we also feel that “hate” is a problem, that needs additional measures to deal with it. To then say that we no longer value crime A’s victims is pure sophistry.
What we have here is an example where a particular law covers some, but not every possible, situation that its general intent includes. Yes, (to enhance the example somewhat) a sniper that randomly shoots anyone is terrifying to a broader group than one who only shoots blacks, and the hate crime enhancement only covers the second, not the first. But just because the (rather rare) case of someone who is randomly violent toward anyone is not covered doesn’t mean that the (more common) case of someone who is randomly violent to a marginalized group shouldn’t receive enhanced punishment.
The symbolism of a hate crime is a two-way street. In addition to the individual victim being a symbol of the vulnerability of his group, the individual criminal is claiming he’s a symbol of the power of his group - it’s saying “any one of us can attack any one of you”. A symbolic threat of “white people can terrorize black people” is realistic. A symbolic threat of “me and my five buddies can terrorize everyone” is not.
There’s a community effect. To use DSYoung’s example, if you start talking in a bar about beating up “fags” you know there’s a realistic chance you’ll be able to find people who’ll agree with you and you can fire up the crowd to go out and commit a crime. If you start talking in a bar about beating up left-handed people, does anyone think you’ll be able to get a mob together?
You can talk about theory all you want, but we live in the real world. Hate crimes are not something people just invented so they could pass a law against them - they really do happen. There are people who were the victims of a crime just because they were black or gay or female or Hispanic or Asian. And there are people who were the victim of a crime just because they were a white guy and I fully support the use of hate crime laws against people who are targeting whites as well as against those who are targeting other groups.
But face facts, it wasn’t black people who were publically lynching a white guy who got uppity. The reason why white men are most likely to be prosecuted for a hate crime is because white men are most likely to commit a hate crime. Like I said, let’s admit there’s a real world out there.
If I were on the SCOTUS, I would suggest this compromise position: forbid legislatures from allowing increased penalties for race or discriminatory crimes, but allow the prosecution to put on evidence in a bifurcated sentencing phase to allow the jury(or judge) to consider it for severity of punishment within the normal sentencing range.
Then Scalia would write a dissenting opinion blasting my jurisprudence and asking where in the Constitution support for my opinion rests.
If someone spraypaints “Cecil is god” on theback of my store in the alleyway it’s not really going to upset me much. If they get caught doing it, the most they are going to get is a fine. I probably wouldnt bother to have it removed.
If a group of skinheads spraypaints “DIE JEW DIE” on a synagogue thats a whole different crime. sandblasting the spray paint off isn’t going to undo the damage that was done by that action to all the people who saw it. the people who did it didn’t do it because they were bored; they did it to terrorize. They need to do jail time for it.
It would be one of the few time Scalia was correct. And unless the SCOTUS was made up of people with no understanding of constitutional law then it is your opinion that would be the dissenting one. Most of the majority would be spent pointing out how you had forgotten it was not your job to propose legislation.
Yeah. Because NO ONE in the history of the Supreme Court has EVVVVVVVER split the baby. :dubious:
O’Connor woulda been with me! Maybe Kennedy, too!
You have never read a SCOTUS opinion have you? Both of the Justices you mentioned certainly know that it is not their job to write legislation. I don’t know what you are talking about when you say splitting the baby, this case is not even a close call.
Abortion now, but not in the third trimester. Busing kids to solve the ills of Jim Crow. Permissible methods of the death penalty, but not for someone in category X. Affirmative action if you do it exactly like this, but not like that. Miranda warnings!
C’mon. All of these are more dramatic than my subjective theory of keeping race out of the guilt/innocence phase of the trial, but allowing it to be used in the sentencing phase.
If you don’t agree with activist/pragmatist jurisprudence that’s fine, but don’t insult my intelligence by sticking your head in the sand and pretending the practice doesn’t exist.
People disagree. Get over it, Scalia.
I think I’m going to drink more because I agree with askeptic here. Scalia is the last guy who does anything that you mention. Well, next to last. Thomas is the last, but Scalia is with him 90+ percent of the time…
Actually, you don’t agree with him. Not sure if you agree with me, but I actually said Scalia would disagree with me.
He said everyone would disagree with me because what I suggested was written by someone who had obviously never read a Supreme Court case. (I went to law school, by the way. Read AT LEAST three or four cases in three years.)
My examples are of other, more “creative” precedents; written by more celebrated legal minds than mine (or any Doper, for that matter).
However, I still recommend drinking heavily. It makes life more interesting.
What I would like to see is the terrorism aspect of hate crimes charged as a seperate punishable crime, rather than as a sentence enhancer for the base crime.
So spray painting “Die jews, die!” gets charged a count of vandalism, and a count of religious intimidation.
The difference is that this specifically addresses the social effect of the “hate”, and also allows a jury to decide if the terrorism aspect applies in each case. It also respects the victims of non hate-crimes by punishing those criminals equally (for the base act).
Say, for example, the grand imperial poobah of the local KKK chapter kills a black drifter with no witnesses, buries the corpse, and never says a word to anyone about it…if it weren’t for the luck of the body being discovered, nobody ever would have known it happened.
Now suppose instead of just burying the corpse, he had carved the words “N__ers keep your place” on the chest, and leaves the body on the doorstep of the local black church.
To my mind, the first is just a murder, and the second is a murder AND an act of terroism. The first was a biggot using murder to satisfy his racism, the second using murder to intimidate the black community at large. Yet as hate-crime laws are currently written, they seem not to make this distinction. If a well known biggot takes action against a member of the hated group, it shouldn’t be a hate-crime unless the action was taken in a way that can be expected to intimidate other members of that group.
Makes a lot of sense. I could get behind that.
The problem with this scheme is that different level of “religious intimidation” to spray paint “Die Jews, Die!” on a building, to yell it while beating up a Jew and to yell it will beating a Jew to death. If there is a separate crime of religious intimidation (unless it is defined with so many steps that it serves as an enhancement, e.g. religious intimidation in the commission of a class C felony is a class B felony, etc.) the crime will be either too serious for minor religious intimidation (e.g. minor spray-painting) and too weak for major religious intimidation (e.g. bias killing), or even both.
You’d probably run into a double-jeopardy challenge. You’d be charging a person twice for the same crime. If I beat up a black guy because I was a racist, I could be charged once for beating up the guy in general and a second time for beating him up because he was black. It’s better to treat it as what it was: a single crime with extenuating circumstances.