Silly Arguments Against Hate Crimes Legislation
No, we probably shouldn’t be in the business of creating special protections for homeless victims, but this latest bout of legislative idiocy has provoked some uncommonly silly responses.
Obviously, intent matters. If someone is attacking people of a particular religious, ethnic or sexual orientation in an effort to harass, provoke or intimidate members of said group, it may be a good idea to assess additional punishment, particularly if a history of animosity and violence is involved. There may be practical reasons not to take this approach – federalizing enforcement is frequently ineffective; racial and religious animosity has subsided in recent decades – but it seems to me that special conditions can justify special enforcement strategies.
Remember that motivation isn’t the issue here – intent is. Attacking a black person to coerce or intimidate other black people is materially worse than randomly assaulting some unfortunate passerby. The later is aimed at only one person; the former targets a (potentially vulnerable) community.
In this particular case, there really isn’t a history of animosity towards transients comparable to the experience of, say, Black Americans. This doesn’t invalidate the entire notion of hate crimes legislation.
On a related note, my roommate is a cop, and according to him, hate crimes prosecutions are exceedingly rare. A lot of people seem to think that targeting crimes motivated by religious, racial or sexual animosity will lead to a rash of spurious prosecutions. The reality (at least in Northern Virginia) is just the opposite – prosecutors are reluctant to use hate crimes statutes because intent is so difficult to prove.
UPDATE: First, it was wrong of me to characterize the arguments against hate crimes legislation as “silly.” Consider the title of this post redacted.
Second, John Schwenkler was kind enough to respond to my post. Here’s the crux of his argument:
True, attacking someone as a means to coerce or intimidate or – perhaps – harass or provoke is reasonably regarded as a more serious crime than “mere” random assault, and it doesn’t seem inappropriate to include within the law a category that defines it as such; we do just this sort of thing, after all, in differentiating murder from manslaughter. But obviously it shouldn’t matter at all whether such a behavior was gone in for as a consequence of hatred for some vulnerable group rather than, say, some other sociopathic tendency or perhaps the desire to draw attention to some political cause.
I tend to think that crimes committed with the intent to harass or intimidate any group are bad, but crimes committed with the intent to harass or intimidate a historically marginalized group are worse. I also think there’s a fair case to be made that certain groups should receive additional protection in the form of more severe criminal punishment for offenders. If a particular crime is more likely to take place or more abhorrent than your run-of-the-mill offense, I’m in favor of prosecuting it more severely.
Granted, a lot of this is context-dependent, and I don’t think federal legislation is really necessary, but under the right circumstances I can see how hate crimes enforcement could be justified.
So….what is your take then? Intent matters, but it’s exceedingly difficult to prove…so….
See, because I agree, but I’m also at a loss.Report
To support irrational laws because the current gang is applying rationality to the laws is a dangerous stance to take — the next gang might not be so rational.Report
So prosecute hate crimes when you can prove it. Seems easy enough to me.Report
It seems to me that this is a way of communicating that one really, seriously, truly *CARES* deeply about a problem without actually having to do anything.
“So prosecute hate crimes when you can prove it.”
Under what circumstances can it be proven? If the answer in practice is “only under circumstances where the person would receive the maximum sentence anyway”, what good is a hate crime beyond communicating that you really, honestly, truly *CARE*?
I’m not asking for a hypothetical, here. I’m looking at stuff like, say, James Byrd where the three murderers received two death penalties and one life in prison penalty.
If this particular crime doesn’t meet the bar of a hate crime (doubtful), what use is hate crime legislation?
If it does, what added benefit (beyond communicating how much and how deeply legislators care) would hate crime legislation provide?
Can you provide an example of a real case that was a travesty of justice that would have been mitigated by the existence of hate crime laws?Report
Jaybird –
Plenty of crimes (including the occasional murder) don’t automatically receive a maximum sentence. I don’t think it’s difficult to augment the sentence of someone convicted of assault, for example.Report
“I don’t think it’s difficult to augment the sentence of someone convicted of assault, for example.”
I can easily imagine many crimes that could be augmented by hate crimes laws.
I was interested, however, in the *NEED* for such laws. Do we need these laws to prevent ongoing travesties of justice?
If so, can you give an example?
If not, can you see why some might see hate crimes laws as “communication” rather than helpful legislation?Report
I’m curious as to which arguments in the linked thread you’re considering ‘uncommonly silly’. I’ve seen uncommonly silly arguments regarding hate crimes legislation of course, but I didn’t notice any in that particular thread.Report
No, we probably shouldn’t be in the business of creating special protections for homeless victims,
Sullivan too seemed to find this so obvious as to not require explanation. But why? Homeless people need special protection because they are inordinately the victims of random crimes, not simply because they are stuck on the street but because they are targeted by people who believe, often correctly, that there won’t be any consequences for hurting them. They are precisely the people who need hate crimes legislation the most.Report
Yes, but the critical fact is that the reason they’re often correct in believing that there won’t be any consequences is that the law is frequently not enforced on the perpetrators, because they are difficult to capture. This being the case, adding an extra law that also won’t be enforced for the same reason provides no value. The solution is to put homeless people in a position where they cannot be victimized either by (preferably) making them less homeless or by ensuring that they receive every bit of protection and investigative effort that everyone else gets.Report
“Homeless people need special protection because they are inordinately the victims of random crimes, not simply because they are stuck on the street but because they are targeted by people who believe, often correctly, that there won’t be any consequences for hurting them. ”
Do you really see an additional law that won’t get any more enforced than the ones already in place as “special protection”?Report
Do you really see an additional law that won’t get any more enforced than the ones already in place as “special protection”?
It’s not unheard of for harsher punishments to lead to reduced rates of the crime in question.Report
Sidereal and Jaybird are exactly right. Add to that the fact that, as others have noted, many or most of the crimes committed against the homeless – and Freddie’s example of a crime that’s committed because it’s thought likely to have no consequences is a case in point! – are likely to have nothing at all to do with hate, and you’ve got a perfect recipe for accomplishing … nothing.
By the way, Will, I think you’re wrong on motivation and intent, and I’ve got a post up on the subject.Report
If you guys are really ready to jettison the concept of assigning harshest punishments to more costly crimes, I’d like for you all to totally flesh out the philosophical and legal consequences of that. Because they’re vast.Report
Huh? By what metric are hate crimes especially “costly”?Report
And to what extent are the punishments for premeditated murder insufficiently ‘harsh’?Report
My main concern with Hate Crimes is if it is pursued to the extent that any crime against a protected group is considered a “hate crime”. A black guy and a white guy get into a shouting match at a bar, the severity of the crime suddenly depends on who hits who first.
That being said, I am not convinced that these laws don’t have their place. When the obvious intent is to intimidate a class of persons on the basis of their race and the behavior is far from isolated, it makes sense to attach a greater sentence to a crime with greater meaning.
While a black guy hitting a white guy and vice-versa in a bar over some trivial thing are equivalent crimes, a black guy lighting up a poop-bag and sticking it on some white person’s doorstep is substantively different from a white guy lighting up a cross on some black family’s front lawn.
The other pertinent question beyond the nature of the motivation is whether or not a group of people need these laws in order to insure that people that commit crimes against them are worth prosecuting. and do potential perpetrators need to know that crimes along that particular basis will be looked at with much greater scrutiny. I think that homeless people (and homosexuals) may fall into this category far moreso than any racial minority. Knowing that the full force of Johnny Law will fall down on you if you go beat up a homosexual couple may in fact act as a sort of deterrent and prevent someone from doing something stupid.
Whether these things are occurring with enough regularity to go down that road (and nothing in between here and there will suffice), I don’t know. I think I’m a tad skeptical, but I’m open to being convinced.Report
Will are you going to cover S 909 (?), a pending Senate (?) bill concerning “hate speech?”Report
“Granted, a lot of this is context-dependent, and I don’t think federal legislation is really necessary, but under the right circumstances I can see how hate crimes enforcement could be justified. ”
Do these circumstances exist outside of the theoreticals you’ve considered?Report
I’ve both prosecuted and defended civil rights violations (which are very similar to this bill) and hate crime allegations. Just a couple of comments:
Actually, hate motivation is the weak link in civil rights and hate crimes cases. It’s the element that most often leads prosecutors to decline the case (at least as a hate crimes case) and the element that most often leads to acquittal or a hung jury. I lost a civil rights case I was prosecuting against one of two brothers — the jury concluded that the first brother was a racist who was harassing a local family out of racial animus, but that the second brother was just an asshole and a follower. Another time I had to refer a hate crimes case over to the DA’s office — no federal hook — and the DA convicted the defendant at trial of assault, but not the hate-crime enhancement, despite the fact that the defendant assaulted the victim after using anti-Semitic slurs against him. Also, prosecutors have historically been pretty timid about bringing hate crime charges rather than plain-vanilla charges — sometimes leading to anger in the victim community in question.
So, could prosecutors charge a hate crime every time that the victim is a different gender/race/sexual preference/religion than the defendant? Yes. Prosecutors could charge every assault as assault with intent to kill. Prosecutors could charge every possession of drugs case as possession with intent to distribute. But there is no basis to conclude that they would do so here.
Actually, SB 909 is the Senate version of the House bill being discussed here. Can you point to the particular portion that criminalizes speech, please?Report
Ken,
No I can’t. I just heard a blurb this morning on the radio (I see I got thet number wrong), but I thought I heard the term “hate speech.” If you hear something about this would you comment? Much appreciated.Report
Bob, Senate Bill 909 (SB 909) is, as near as I can figure, just the Senate version of the House hate crimes bill that has already passed. I haven’t compared them to see if and how they are different. Nobody has cited to me any provision of the Senate version that could, in my opinion, be classified as punishing “hate speech” as opposed to “hate crimes.” Of course, critics have been claiming that the House version is a “hate speech” bill, so what you heard is probably more of the same.
The argument that this is a “hate speech” law goes like this: if I say “I hate damned white people,” then hit a white person, then my statement can be taken as evidence of my bias motive for the attack, one of the elements of the hate crime law.
Of course, if that’s the standard for what a violation of free speech looks like, then a vast number of existing laws violate free speech. If I say “I’m going to kill you for prosecuting my brother”, and then try to hit a federal prosecutor with an axe, then my statement can be taken as evidence that (1) I knew the victim was a prosecutor, (2) I attacked the victim because of his work as a prosecutor, and (3) I meant to kill the victim, all elements of the federal crime of attempted murder of a federal prosecutor.
Similarly, if I’ve spent the last ten years talking about how much I hate Naderites and how they deserve to die, and a Naderite turns up murdered on my street, my past statements can be used as evidence that I’m the one who killed him.Report
Ken,
Thanks! I am interested in following this to see if it does devolve onto ‘speech.’ I should like to see how the 1st Amend. is side stepped; perhaps I’ll be joining with my ‘liberal’ friends in resisting ‘speech’ restrictions. Again, thank you.Report
Will talks about hate-crimes legislation as providing an extra measure of protection for minorities, especially blacks. But that isn’t the way it works out in the real world. In fact, blacks are more likely to be charged with hate crimes than are whites.Report
Okay now we’ve heard a silly argument against hate crime laws.Report
Nat Hentoff has an interesting essay up here:
http://www.cato.org/pub_display.php?pub_id=10188
As someone who digs Hentoff, allow me to urge you to read it.
Not that I’m telling you how to live, of course.Report
Jaybird –
Nice find. I’ll be sure to check it out.Report