Hate Crimes

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Will

Will writes from Washington, D.C. (well, Arlington, Virginia). You can reach him at willblogcorrespondence at gmail dot com.

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  1. Avatar Jaybird
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    says:

    I very much like the idea of there being a distinction between a guy just mugging another guy because he wants a wallet and a guy mugging another guy because he doesn’t like (slurs).

    I very much see the difference between spray painting “Eat At Joe’s” on the side of a (religious building) and spray painting “(slurs) die” on the side of one.

    I’m 100% with you up to that point.

    My problem resides with the faith that the government will be able to make the right decisions about these things. There are dozens of potential excesses… this group is assumed to engage in hate crimes more often than other groups and so there becomes a presumption of guilt whenever a member of that group gets prosecuted. Or perhaps every crime between two people of different pigmentation get “hate crime” stapled to it as a prosecutorial tool to get a plea bargain. Or that this group tends to get better legal representation than other groups… and so hate crime laws only apply to the groups that don’t tend, as a whole, to get decent legal representation.

    It seems to me that there are many more potential downsides in the implementation…

    But, for the record, I totally see that there is a difference between a mere mugging and a (member of this group) beating up a (slur).

    It’s tough.Report

  2. Avatar Will
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    says:

    Jay Bird –

    All valid concerns, though I don’t think any of those issues are unique to hate crimes prosecution per se. Moreover, we seem to have found a workable approach in civil court when assessing emotional damages – why not apply something similar to hate crimes?Report

  3. Avatar Jaybird
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    says:

    Is the additional damage done by a hate crime mugging in comparison to a run-of-the-mill mugging not sufficiently addressed by civil courts?Report

  4. Avatar Will
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    says:

    To be honest, I’m not sure.Report

  5. Avatar Mark Thompson
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    says:

    Will – Can you clarify where you think this legislation asks courts to quantify psychological harm? I don’t see any reference to that in the legislation.Report

  6. Avatar Will
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    says:

    As best I can tell, Mark, the legislation assigns set penalties for hate crimes. My (admittedly inarticulate) second point was that while I don’t find the idea of assessing criminal penalties for psychological harms terribly objectionable, this particular piece of legislation doesn’t leave a lot of room for discretion.Report

  7. Avatar Mark Thompson
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    says:

    Jaybird – As a practical matter, no. Individuals who are sued civilly after being convicted (or, for that matter, acquitted) criminally are usually not going to have the resources necessary to pay large compensatory damages awards. Since it’s an intentional tort, there’s also not going to be any insurance coverage.Report

  8. Avatar Mark Thompson
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    says:

    Will – Gotcha. I can think of a couple answers to your question.

    First, the purpose of criminal penalties is not to compensate the victim but to punish the criminal. Explicitly requiring courts to consider the emotional damage to the victim is problematic because it punishes criminals differently if they have the misfortune of attacking someone who happens to be unusually fragile emotionally or have the good fortune of attacking someone who is unusually strong emotionally. In a civil context, there’s nothing wrong with having different awards because the point of compensatory damages is that the victim should not be forced to bear the costs of the defendant’s tortious acts; this logic doesn’t apply where the sanction is purely supposed to be punitive.

    Second, as a practical matter, it looks like the legislation does give judges pretty wide discretion over sentencing here, allowing sentences of up to 10 years in most cases, and of unlimited length in cases that involve certain particularly heinous underlying offenses, with no mandatory minimums. That is comparatively a pretty wide amount of discretion as far as criminal statutes go, at least in my limited experience.Report

  9. Avatar Ken
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    says:

    A couple of observations, from a former prosecutor and current defense attorney:

    1. In response to Mark Thompson’s comment, to the extent that this bill amends or extends existing federal criminal law, sentences will still be guided by the U.S. Sentencing Guidelines — while those are no longer mandatory, they still provide a rough guide of reasonableness that most district court judges follow and most appellate courts look to in review.

    2. Despite the oft-expressed concern that hate crimes laws criminalize thought, I don’t think they are meaningfully distinguishable from a vast array of previously existing laws. Many, many other laws have long required an inquiry into a defendant’s intent and mental state — intent to defraud, specific intent to do various things, knowledge of falsity, etc. etc. etc. Proving — or refuting — malevolent racial intent is not qualitatively different in any way that impacts criminal practice, in my experience. Moreover, we already consider motive and intent in all sorts of variations on murder or assault: we impose different penalties depending upon whether a murder was planned, spontaneous, or in the heat of sudden passion, we impose different penalties depending on the method used (poison, lying in wait, etc.), and we impose different sentences for assaults on different people. Assaulting a federal official — because you know they are a federal official — comes under a different statute and a higher penalty than assaulting a “civilian” under federal jurisdiction, based on a social judgment that the former mental state is more dangerous than the latter and the former assault more threatening than the latter.

    3. In my experience and observation, prosecutors are very cautious about charging hate crimes and require a higher level of proof than of other crimes. When I used to refer potential hate crime cases to the DA (because they lacked a necessary federal component), few made the cut — but the DA was prepared to charge plain-vanilla assaults even on fairly weak evidence. This has actually caused quite a bit of irritation in some interest group communities.

    4. The feds have been prosecuting crimes that are indistinguishable from hate crimes — like civil rights offenses — without the system collapsing or free speech being impinged. Usually the evidence of motive is simply not subject to multiple interpretations. When I prosecuted a pack of loser tweaker skinhead wanna-bees for harassing a multiracial family, I had racist tattoos, racist posters, shouted racial epithets, and “get our of our neighborhood, [epithet]” evidence. I’ve never seen a case where the evidence was “well, he got in a bar fight with that black guy, and I once heard him say he opposed affirmative action, so it must be a hate crime.”Report

  10. Avatar Will
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    says:

    Ken –

    Thanks for the informative comment.

    Mark –

    Ken’s response pretty much sums up my feelings on the issue. If crimes motivated by sexual, racial or religious animosity are materially worse than crimes committed for more mundane reasons, it stands to reason that the criminals responsible ought to be punished more severely. As Ken says, a defendant’s motive and state of mind are frequently considered in criminal court – why not extend such considerations to hate crimes?Report

  11. Avatar Mark Thompson
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    says:

    Thanks, Ken. I can’t believe I forgot about the Sentencing Guidelines!

    As for the speech implications of this legislation, your points 2 and 4 line up pretty well with my admittedly limited experience. I’d also add that whatever one’s opinion of employment discrimination laws, you would think that they would present far more of a free speech issue than hate crime laws since they seek to punish and prevent (albeit in a civil rather than criminal context) otherwise perfectly allowable behavior purely on the basis of intent. Yet we’ve had such laws on the books for decades without the First Amendment being brought to its knees.

    On your third point – very interesting. Out of curiosity – is there a reason why prosecutors are hesitant to charge hate crimes even though they’re usually willing to be pretty quick to charge most other crimes?Report

  12. Avatar Cascadian
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    says:

    I’m no fan of Mark Stein, but this hasn’t been working out so well in your new found home (Canada). Most of the tribunals have been moving away from the Canadian version, with some Provinces reading the legislation very narrowly. I think it’s a grand idea. It just doesn’t seem to play well in reality. With the thin skull defense, it encourages over reaction and doesn’t blend well with freedom of speech.Report

  13. Avatar Ken
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    says:

    Cascadian, I don’t think that Canadian laws are comparable to the American proposed laws. First, Canada’s rather (forgive me) anemic speech protections are explicitly made subject to a balancing test; First Amendment tests are far tougher to meet. Second, the tribunals you mention (which I have vigorously criticized before) are empowered to punish not just actual assaults, but hurt feelings.

    Mark: I suspect that prosecutors are more hesitant to prosecute hate crimes cases because they are more high-profile, and a loss is more damaging and embarrassing.Report

  14. Avatar Will
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    says:

    Cascadian –

    Again, I just don’t see how hate crime laws spill over to free speech. Committing a crime is a precondition for prosecution. If you don’t commit a crime, you can say whatever the heck you want.Report

  15. Avatar Cascadian
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    says:

    Ken: Wow, that’s a long post you link to. I’m getting ready for date night with the Mrs. so I’ll have to pour through it later. Canadian law (or at least BC law) on this matter has been doing some drastic changes in the last year or so. I’ll give you some links when I can get back to this.Report

  16. Avatar Bob Cheeks
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    says:

    Will, do you have any statistics related to “hate” crimes perpetrated against racial, sexual, religious, or ethnic minorities?Report

  17. Avatar Will
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    says:

    Bob Cheeks –

    I don’t – as I said above, this is not an issue I’m very familiar with. Does the incidence of hate crimes matter, though? If hate crimes are worse than “regular” crimes, we should prosecute them more severely regardless of how frequently they occur.

    Then again, if they don’t occur particularly frequently, perhaps there’s no need for additional deterrence.Report

  18. Avatar Jaybird
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    says:

    “If deterring racial, religious or gender animosity is a compelling state interest”

    If, by animosity, you mean “acts”… of course it is.

    If, by animosity, you mean “thoughts” or “ideas”… are you not, in fact, supporting thoughtcrime laws and calling them laws in support of a compelling state interest?Report

  19. Avatar Will
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    says:

    Jaybird –

    I mean acts motivated by hatred. Policing our thoughts is not what I have in mind.Report

  20. Avatar Jaybird
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    says:

    Fair enough. I just wanted to hammer down what you meant by “animosity”.

    As I tend to see the word used, it’s generally an internal state, rather than the manifestation of an internal state.

    If you mean the latter… sure. I’d say that is much, much less creepy.Report

  21. Avatar Bob Cheeks
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    says:

    Will, I was just wondering if this is a “significant” problem or is it the case that one violation is sufficient. I believe Jaybird is correct in implying the close proximity of the slipppery-slope of thought crime violations.Report

  22. Avatar Bob Cheeks
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    says:

    Will,
    One more thing. Can there ever be a “hate” crime perpetrated against white people?Report

  23. Avatar Will
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    says:

    Bob Cheeks –

    As I understand it, the legislation attaches severe penalties to any crime motivated by racial hatred. I see no reason why a racially-charged attack against a white person wouldn’t fall under this rubric.Report

  24. Avatar Ken
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    says:

    The notion that hate crimes laws prohibit violence against minorities, but not violence against whites, is a frequent but utterly baseless talking point. I challenge anyone to find a bias crime law that, by its terms, criminalizes (or enhances penalties for) bias crimes against only select racial/ethnic/religious groups. In fact, as Will suggests, the language of bias crimes laws generally prohibits specific acts when motivated by racial, religious, etc. animus.

    In fact, the leading U.S. Supreme Court case on hate crimes, Wisconsin v. Mitchel, involved black-on-white violence.

    In fact, I recall seeing a study that hate crimes are disproportionately prosecuted against minorities targeting whites — I’ll try to find it.Report

  25. Avatar Mark Thompson
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    says:

    Ken – I think you’re referring to the 2007 FBI report on hate crimes, but I may be wrong.Report

  26. Avatar Jaybird
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    says:

    “hate crimes are disproportionately prosecuted against minorities targeting whites”

    Is this a reason to oppose hate crimes or not?Report

  27. Avatar Ken
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    says:

    “Is this a reason to oppose hate crimes or not?”

    It’s a reason. However, inasmuch as disproportionate prosecution and punishment is found for a vast variety of crimes and penalties, I’m not sure it’s a good reason.Report

  28. Avatar Jaybird
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    says:

    While “disproportionate prosecution and punishment” for, say, murder is not particularly a reason to oppose laws against murder, I’m pretty sure that adding additional disproportionate prosecution and punishment for things that already have disproportionate prosecution and punishment is a step in the right direction.Report

  29. Avatar Bob Cheeks
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    says:

    Will, Thanks for straight answers and Ken as well! I continue to be concerned that “hate crimes” lead to thought crimes…given human nature and sundry psychopathological disorders.Report

  30. Avatar Cascadian
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    says:

    It appears that the definition of hate crime is one where the victim is targeted because of their membership in a protected group. If I’m a fraud but I only target members in my own ethnic group would I be open to these additional charges? Wouldn’t any illegal activity that targeted a particular population be open to these charges? Do the federal grants provide unwanted incentive for financially strapped municipalities to find applications for this law?Report

  31. Avatar Will
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    says:

    Cascadian –

    Presumably there would have to be some evidence that your criminal activities were actually motivated by racial hatred.Report

  32. Avatar Cascadian
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    says:

    Where do you read that?Report

  33. Avatar Jaybird
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    says:

    Update #2 gives me even more pause… because it seems like the issue is no longer one of “does this policy work” but one of “do you support the protection of (oppressed group) or not???”

    Support of hate crimes is seen as support for the protection of (oppressed group).

    Opposition to hate crimes is seen as support for further oppression of (oppressed group).

    And you are either part of the solution or part of the problem.

    Which is a position that always rankles me.Report

  34. Avatar Ken
    Ignored
    says:

    Support of hate crimes is seen as support for the protection of (oppressed group).

    Opposition to hate crimes is seen as support for further oppression of (oppressed group).

    It’s too bad that it is framed that way. I disagree with the framing. There are principled and colorable reasons to oppose hate crimes laws (Sullivan, for instance, is hardly opposing them because he wants to bash gays), and equally principled and colorable reasons to support them.Report

  35. Avatar Ken
    Ignored
    says:

    If I’m a fraud but I only target members in my own ethnic group would I be open to these additional charges? Wouldn’t any illegal activity that targeted a particular population be open to these charges?

    That depends upon how carefully the law is drafted.

    Lots of criminals target their own ethnicity or religion for criminal acts — not out of hate, but because they are running affinity scams, or because they are taking advantage of some cultural trend (like the home invasion robberies of Vietnamese immigrants in the 70s and 80s, targeting families who mistrusted banks and thus kept wealth in their homes). However, I doubt many of these would meet the definitions of hate crimes laws, given how most hate crimes laws are drafted. First, most hate crimes laws address violent crime and not fraud or theft, and most affinity-group crime is property crime. Second, many hate crimes laws require proof that the defendant was motivated by animus towards the victim. That would exclude affinity-style targeting. Other laws — like the one linked in this post — don’t mention animus but require a showing that the defendant assaulted the victim because of the victim’s race/religion/etc. A prosecutor could argue that applies to an affinity-style crime, but it would be a tough argument — it’s the difference between saying that a defendant set out to commit a crime and chose the victim based on his race, and saying that the defendant decided to commit a crime because of the victim’s race.Report

  36. Nob Akimoto Nob Akimoto
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    says:

    I’m curious, how do people who oppose hate crimes react in relation to distinctions/gradations of murder based on for example intent or premeditation? Should these gradations also be abolished because we’re trying to police the thoughts/motivations behind killings? I’ve yet to find anyone who actually thinks we should stop distinguishing between premeditated murder, voluntary manslaughter etc. is a good idea, but aren’t those too also “government making a determination of thoughts”?Report

  37. Avatar Jaybird
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    says:

    “I’ve yet to find anyone who actually thinks we should stop distinguishing between premeditated murder, voluntary manslaughter etc. is a good idea, but aren’t those too also “government making a determination of thoughts”?”

    This reminded me of a tangent.

    Back in my women’s studies days, there was an argument that there was much disparity between husbands killing wives and wives killing husbands. A spousal murder of husband killing a wife was usually 2nd degree murder but the other way around was usually 1st degree.

    That’s because a husband killing his wife was usually a case of “I threw her down the stairs plenty of times, she ain’t never died before” but the reverse was usually “she bought a gun, she bought bullets, she bought whiskey, she waited for him to pass out, then, IN COLD BLOOD, she KILLED him! This shows intent! This shows a cold-blooded PLAN!”… which is usually enough for 1st Degree in most states.

    My professors argued that this was unfair and spousal murder should be its own category with no more of this disparate impact of prosecution.

    So… there. That’s the tangent.Report

  38. Avatar Cascadian
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    says:

    The way I read this bill, neither hate nor violence is required. Any felony, including spam and libel, that targets a protected group would qualify.Report

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