Hate Crimes on the Razor’s Edge

by Glyph

Last week, sixteen Amish men and women in Ohio were convicted of federal Hate Crimes and could serve several decades in Federal prison for cutting the hair and beards of other Amish in the course of a religious dispute.

In Federal prison (unlike State), there is no possibility of parole.

From the Reason link, here is how a (literal) Federal case was made of this:

“The government also had to cite an “interstate nexus” to justify federal prosecution. You might think that would be a challenge, since all of these crimes occurred within a single state. But hey, look, Dettelbach says: The “Wahl battery-operated hair clippers” used in the assaults “were purchased at Walmart and had travelled in and affected interstate commerce in that they were manufactured in Dover, Delaware.” The defendants also used “a pair of 8” horse mane shears which were manufactured in the State of New York and sent via private, interstate postal carrier to [a retailer] in Ohio for resale.” They took pictures of their victims with “a Fuji disposable camera from Walmart” that “travelled in and affected interstate commerce in that it was manufactured in Greenwood, South Carolina.” They used “an instrumentality of interstate commerce” (i.e., a highway) to reach victims in Trumbull County, Ohio. (They never actually left the state, but they could have.) The indictment also mentions a letter (carried by the U.S. Postal Service!) that was used to lure one of the victims. An embarrassment of interstate nexuses, in more ways than one.”

In a touch of irony, or perhaps the Old Testament justice principle of ‘a beard for a beard’, the convicted men may be required by prison administrators to trim their own beards.

And, for extra hair-related-comedy bonus, the Amish bishop ringleader’s name?

Mullet.

I am not minimizing what these guys did – this NYT article on the accusations against Mullet paints him as a sort of cult leader, with all the usual cult skeeviness. But this whole thing still seems kind of crazy, like a Mr. Show sketch: an Amish equivalent of an East Coast / West Coast rap beef in which no one got shot.

Assuming all victims were adults, does this sentence seem reasonable? (If the victims were minors, I say ‘throw that book, hard.’) The linked Salon article notes that the Hate Crimes definition in Ohio refers to ‘bodily injury, including disfigurement.’  Is forcible shaving ‘disfigurement,” even if done with the intent to shame? What say the legally-inclined here?

Don’t get me wrong – what these guys did is Not Right. If people held me down and forcibly shaved my beard I’d be terrified, even if not physically harmed (though some no doubt would think the results an improvement). This is Assault, and should be punished.

But several decades in Federal prison with no possibility of parole seems a bit harsh to me; and I am not sure about the ‘Hate Crimes’ part, either in this specific instance or in general.

Thoughts?

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100 thoughts on “Hate Crimes on the Razor’s Edge

  1. This is overboard i think. I would call shaving, in this case, serious disfigurement. As i understand beards for Amish folk are not just something to grow and cut as fashion goes. They aren’t supposed to shave ( correct me if i’m wrong) so this is forcing upon then something their religions says shouldn’t be done. Taking their religion seriously suggests this is a big deal.

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    • I often defend hate crimes law with the following example:

      Suppose I’m pissed off at my neighbor, so I get drunk one night and burn some trash on his lawn. That’s a crime: trespassing, vandalism, malicious mischief. I’d probably get a fine and maybe a month in county jail. Now, suppose my neighbor’s black, I bring some buddies who also dislike him, and we burn a cross on his lawn. That’s a not very veiled threat against him and his family that should be treated as a serious felony. The purpose of hate crime laws is to distinguish and punish the latter. As Greg points out, this is also the latter.

      The problem isn’t hate crime laws. The problem is mandatory minimums, absence of parole, and the obscene over-sentencing that’s considered being “tough on crime”.

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        • It seems to me that there is a significant difference between spray painting “HITLER WAS RIGHT” on the side of a synagogue and spray painting “CLAPTON IS GOD”.

          There’s aggression in the one that just isn’t present in the other. An implicit threat, maybe.

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          • That seems a necessary distinction, JB: whether there’s a message of intimidation. See also

            http://www.nytimes.com/2003/04/08/opinion/a-decision-on-cross-burning.html?ref=crossburning

            The Supreme Court upheld a Virginia statute yesterday that makes it illegal for Ku Klux Klansmen and others to burn crosses. The case was a difficult one, forcing the court to weigh the free-expression rights of those who burn crosses against the right of their victims not to be physically intimidated and threatened with harm. The court got the balance right in a decision that upholds the ban on cross burning but warns the states against trampling on political speech.

            Under Virginia law, it is illegal to burn a cross with ”intent to intimidate a person or group of persons.” This 50-year-old cross-burning law was challenged by three men who had been convicted under it. Two of the men were convicted of attempting to burn a cross in the yard of a black neighbor. The third led a Ku Klux Klan rally at which there was a burning cross 25 to 30 feet high, accompanied by talk of going out and randomly shooting blacks.

            The First Amendment’s free-speech protection is not absolute. Many crimes, like filing a fraudulent tax return, are committed by means of the written word, and the Constitution does not protect them. The Supreme Court has long held, in particular, that threats of violence can be prosecuted without running afoul of the First Amendment. In its decision yesterday, the court observed that cross burning could be done either to make a general political point, in which case it is protected speech, or to convey a specific message of intimidation, in which case it is not.

            The court’s heavily fractured decision — its dissents and concurrences crossed ideological lines — sounds a welcome note of caution. Justice Sandra Day O’Connor warns that states cannot assume, or ask juries to assume, that every cross burning carries with it an intent to intimidate. The burden is on prosecutors to show, based on ”contextual factors” surrounding a particular cross burning, that the necessary intent was present.

            Yesterday’s ruling gives law enforcement the authority it needs to go after cross burners. Now it is up to the states and the courts to ensure that they do so without punishing protected speech.

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              • Actually, the Matthew Shepard was precisely the type I wasn’t thinking about, where the crime was motivated by a psychotic animus, but not intended to get gay people to stop being gay.

                Whereas beating the crap out of Freedom Riders* was more than simple assault and more than mere psychotic animus–there was a terrorist message being sent, to go home and give up on civil rights protest.

                http://www.npr.org/templates/story/story.php?storyId=5149667

                In 1961, the Freedom Riders set out for the Deep South to defy Jim Crow laws and call for change. They were met by hatred and violence — and local police often refused to intervene. But the Riders’ efforts transformed the civil rights movement.

                Clearly, society had a compelling interest in protecting the Freedom Riders that went beyond their personal safety; from this vein we can make the case for “hate crime” penalties harsher than for simple assault.

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                • Thanks Tom, that’s clearer. But for some reason this still seems different to me from white supremacists attacking the Freedom Riders; this looks more like one flavor of a religion, attacking a slightly different flavor of that same religion (though as an outsider I don’t know if my impression is accurate).

                  Do we really think this warrants a more severe penalty than if the beards had been shaved as the result of, say, a dispute over farm borders? Is the fact that the real impetus behind the crimes was ‘RELIGION: UR DOIN’ IT RONG’ enough to justify increased (in fact, draconian) sentencing?

                  Also, the ‘inter-state’ contortions that the Federal Government had to go through in this case, to justify prosecuting under Federal law seems indicative…of…something, anyway.

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                  • I’m not disagreeing, Glyph [exc piece, BTW]. Is this a “message” to other Amish? That would be terrorism, intimidation. What if this were Salafis killing Sufis? We certainly know the Founders feared intersectarian strife most of all, and at this point we have a bit of schism among the Amish, two sects where there was one—“one flavor of a religion, attacking a slightly different flavor of that same religion,” as you put it.

                    Does society have an interest in prosecuting intra-/intersectarian violence? I can see the argument, that this is about much more than beards cum land disputes.

                    As for the “federal case” part of it, I suppose we have a defense of the First Amendment free exercise rights of the now-beardless, and the attackers are violating those rights. All I can say is that I can see that too–again, imagine if these were Muslims. This Muslim sect kills that Muslim sect all over the world. Putting a big hairy federal foot down on intra-/intersectarian violence seems OK to me, as a practical matter and as a protection of First Amendment rights.

                    (Whether the First [“Congress shall make no law…”] strictly applies here would be a separate question.)

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                    • Tom, this makes quite a bit of sense to me in that we do want to quash sectarian violence quickly. I do question whether the Federal government was required to do that here though. Presumably the state of OH could have handled these guys just fine, based on the the regular ol’ assault and kidnapping charges (at least one of the victims was lured to his attack under false pretenses).

                      Perhaps putting these guys in state prison for just a few years could probably have quashed the dispute just as well, no?

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                  • I really don’t see how it’s relevant that it’s “a slightly different flavor of that same religion” versus a different religion entirely, or even how you’d make a determination like that (especially the 1st Amendment discouraging religious judgments in general). As has been pointed out, from the outside, an awful lot of religious disputes look like that. Also, for that matter, a lot of ethnic disputes. If the Rwandan civil war had spilled over and resulted in violence between Hutu and Tutsi communities in the United States, should we have treated that differently from hate crimes directed at African Americans in general because “they’re both black”?

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                    • Well, that’s sort of my point, but from the opposite direction. I don’t see that it matters that the dispute was over a slightly different flavor of religion. These guys over here, assaulted and kidnapped some other guys over there. That is illegal, and punishable under OH state law.

                      What did charging the perps with ‘hate crimes’ bring to the table, other than to put some guys in federal prison, for a really really long time, when they did no permanent physical harm to anyone?

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                    • There’s a political/philosophical/prudential debate to be had about federal versus state jurisdiction, but I can’t really get myself worked up over which prison they’re going to be sent to. And sentencing law in the US are draconian in general; it’s entirely possible to feel that this sentence is, like many, excessive, while still thinking that what they did ought to be treated more seriously than forcibly shaving the average person would be.

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                    • No, like I said I am not sure about hate crimes in general.

                      Also, the contortions the Fed had to go through to claim jurisdiction (blockquoted in the OP) seem pretty goofy, no?

                      But like you say you can’t get too worked up about the difference btw Fed and State prison, I probably wouldn’t get too worked up about the difference between say a sentence of 7 years, and 7 years with six months added on for ‘Hate’. Kidnapping and assault are serious, and if hate crime charges only added slightly to that, I would still have a conceptual issue; but in practice, what’s six more months?

                      However, the potential sentence is described as ‘up to several decades’. Let’s assume that ‘several’ means ‘only two’ (though to me ‘several’ usually implies ‘more than two’).

                      Is 20 years with no possibility of parole a reasonable sentence, given the crime?

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                    • The point is that the sentence is not long because of the hate crime. It’s long because federal law tends to assign long sentences.

                      You ask something like: isn’t it unreasonable to get 20 years for a hate crime instead of 7 years for kidnapping? But the statutory sentence for kidnapping under federal law is “imprisonment for any term of years or for life”. I’m not an expert but a look at the federal sentencing guidelines appears to suggest a minimum sentence of 10 years for a first offense without any aggravating factors. Considering that multiple victims were involved, and at least some stories have mentioned obstruction of justice charges, too, it doesn’t seem that 20 years is unreasonable in that context.

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          • JB, as I point out below, in this particular instance it wasn’t speech or an action (like spray-painting slurs or burning crosses) that could be construed as aggression or threat…this was *actual* aggression/physical assault.

            How can assault, also be a threat?

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            • I think assault CAN be a threat if it is done in such a way as to convey an ongoing threat. For instance (and completely leaving aside existing law and precedent), there is a difference between beating up a Martian because you don’t like Martians and one of them looked askance at you and beating up a Martian and tying his body to a lamppost with a sign that reads, “This is what happens to Martians who come downtown.” Now, there is a lot of grey area between those two actions and exactly what constitutes a threat and what does not, absent explicit threatening language, is a tough one.

              I don’t know enough about the specifics in this case to say where it falls in that grey area.

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      • Eh, to me hate crime laws seem a bit simpler.

        Hate crimes are focused on a class of people. Not “this guy that slept with your wife” or “the guy that had the money I wanted” but an entire class of people. Women, men, atheists, gays, christians, muslims — doesn’t matter.

        And that should be punished far more harshly for the simple reason that it’s random. Someone committing a hate crime? hates a group or class of people so much he will and does act violently when he comes across them.

        And that guy? More dangerous to be wandering the street than your average thug. Because he’s gonna see that class or grouping everywhere.

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        • See, this is why I kind of have a problem with hate crimes laws, at least in this specific instance – to me, Assault is Assault is Assault.

          If as Mike Schilling says, the purpose of Hate Crimes laws is to distinguish those acts which are veiled threats of bodily harm, from those which are just general criminal behavior…in this case, what’s the ‘threat’? The victims have already been assaulted.

          Is ‘assault’ also a ‘threat of future assault’?

          Where does it end?

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          • My point wasn’t intended to be that narrow. The purpose of hate crimes laws is, in my opinion, to add extra penalties for crimes where the bare facts don’t cover the true extent (and intent) of the crime. Tom has a great example above about the Freedom Riders.

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          • Assault isn’t assault isn’t assault. We differ punishments and crimes by degree, by intent, by all sorts of things. (That’s why there’s like 5 different types of murder or manslaughter, all depending on a complex set of factors).

            With hate crimes? I think it’s probably a good idea to tack on an ‘extra’ penalty for someone whose violence isn’t triggered by something specific (like “That dude done slept with my wife” or “I needed cash”) but by hatred of an entire group.

            If nothing else it shouldn’t be in the same class of assault as, say, two guys getting into a bar fight over a football game or something.

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            • I think what makes this case slightly different than that, Morat, is that here it doesn’t appear the perps ‘hated’ the victims – this is not like a rabid KKK’er who wants to see all black people dead or on a boat back to Africa – no, these guys were motivated by LOVE (in their minds).

              They wanted their brethren to see the error of their ways, and come back into the fold.

              So maybe this is just a semantic thing, but this doesn’t look like what I think of when I hear the words ‘hate crime’.

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              • Morat’s onto crimes against strangers, which typically is the explanation for higher penalties in interracial violence cases. Random violence, or choosing victims based on animus towards a group, is much more destabilizing [and frightening!] in a society than people killing people they know [presumably over some beef].

                The problem this discussion is highlighting is that we’re trying to fit a lot of aggravating circumstances under this vague umbrella of “hate crimes.” There’s not much connection between the Amish cutting each other’s beards here and James Byrd getting dragged behind a car.

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                • Indeed.

                  I think Mike may have also been onto something when he locates the problem not in the concept of the hate crime law per se, but in mandatory minimums/tough -on-crime mentality etc. If the hate crime charge had meant an extra 6 months’ sentence or whatever, I certainly wouldn’t lose much sleep over it. Decades with no parole is a whole ‘nother ball of wax.

                  IANAL, but maybe even something like a RICO-type intimidation charge (trying to keep the little people in line) would feel more appropriate than ‘hate crime’ here.

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      • It’s one group of Amish attacking others they consider apostates, by doing something that might be upsetting to most of us [1], but is a major humiliation to the Amish. I’d call a hate crimes entrancement entirely appropriate (not at the level of decades, of course.)

        1. If someone had forcibly shaved off the mustache I had when I was first married, I’d have suspected them of being in the pay of my wife.

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  2. Obligatory

    But yeah, this is ridiculous, but the inevitable result of 1) expanding the interpretation of the interstate commerce clause so it can cover any aspect of modern life, and 2) US Attorneys that see (correctly) the path to fame and fortune is to take on (and win) high profile cases.

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  3. This is a real case of cultural whiplash for me, because decades-long sentences are rare for any crime here, much less maliciously shaving someone.

    The maximum sentence for common assault in New Zealand is 1 year.

    We don’t have hate crime laws, but let’s call it aggravated assault just to account for that (not that this meets of definition of aggravated assault under the Crimes Act). That would make the maximum sentence 3 years.

    Our sentencing regime is not unusual for developed countries, outside the US, murderers don’t get the jail time these folks are looking at getting.

    As for the flimsy federal connection? They’re acting entirely in line with existing precedent here. Even the flimsiest pretext is enough to declare something inter-state, and it has been since Wickard v. Filburn.

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  4. I’ll be the first to admit, as an atheist I find most religious rules either bizarre or pointless, but in this case I’ve got to side with the prosecution. In Amish society forcing a man to shave is no different than if you were to force a Muslim family to sit down for a hearty double bacon BLT or if you shave a Sikh’s hair.

    Mullet’s ‘cult’ chose the acts they did specifically because they were a way to defile, in Amish society, their targets. We may not see it as a big deal but if that doesn’t fit the definition of a hate crime I don’t know what does.

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    • Pen, I don’t condone anyone force-feeding pork to Muslims; but if they do, the ‘injury’ is more metaphysical, than physical.

      Do we want the US government prosecuting crimes of, essentially, ‘religious defilement’?

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        • It’s fairly easy to measure the trauma a torso receives from a blunt object.

          Less easy to measure the trauma a spirit receives from seeing a picture of a much beloved religious figure immersed in urine. Or, I suppose, a youtube video in which it explains that a much beloved religious figure was really violent and lied about stuff.

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        • Well, in the case of ‘metaphysical’, I’d say it’s definitionally less ‘real’. I guess I am sort of uncomfortable with the government deciding that religious beliefs or articles of faith regarding the concepts of ‘sacred/desecration’ should be germane factors in charging/sentencing, when these are things that only a subset of the population actually believe (such as beards being ‘sacred’ in some way, or pork being ‘unclean’).

          If you are really, really scared of ghosts, and I steal the ‘Ghost Guard’ that you have hanging over your door, is that a ‘Hate Crime’?

          Or is it just ‘theft and general jerkwadery’?

          How much ‘injury’ have I actually done you?

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          • But isn’t that true of a number of crimes? If I said you could take my ghost catcher, there is no theft at all! The perception of the actions by the recipient of those actions matters a great deal.

            (And, in the interests of transparency, I’m being a bit of a devil’s advocate here, though i do generally believe that we draw too bright a line between physical and non-physical violence.)

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            • Well, but we’re not disputing whether a crime occurred (the beards were shaved, and I stole your Ghost Guard – sorry, dude); but whether the fact that the victims imbue those objects with some metaphysical significance should increase the actual injury (and therefore penalty) under the law. I see that as a tricky thing, especially if we want to avoid the government getting involved in religious questions.

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          • The government certainly considers the religious beliefs of those affected when making decisions in other areas of the law. The article you linked to says the offenders may be required to shave their beards, but it does note that religious exemptions are sometimes given to those rules. Another article (http://www.cleveland.com/metro/index.ssf/2012/09/sam_mullet_guilty_of_hate_crim.html) reports that their lawyers say they expect they’ll be able to keep their beards.

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            • In charging though, it seems problematic.

              If I am a cheapo restaurant owner, and I’ve got some pork I need to unload, but I know that a lot of my customers are Muslim or Jewish, so I shred the pork and sell it as chicken, have I committed a hate crime?

              I have ‘defiled’ my customers, in their eyes.

              But to my eyes, all I did was commit fraud, by selling pork as chicken (assuming the pork wasn’t spoiled or poisoned or anything, it’s perfectly good meat, it’s just not chicken).

              Shouldn’t ‘fraud’ be a sufficient charge?

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              • Case 1:
                Sell a meat sausage “containing chicken, pork, and beef”, when it actually contains only pork.
                Case 2:
                Advertise a product as kosher, despite knowing it contains pork.

                I think case 2 ought to be treated more harshly than case 1.

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                • I think case 2 ought to be treated more harshly than case 1.

                  I get that you do – but why? To do so, don’t we have to force people not just to not commit fraud (which I am 100% on board with) but also to essentially accept the religious beliefs of others as valid (I don’t see how this is possible or even necessarily desirable)?

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                • In fact, wouldn’t this potentially run afoul of the First?

                  I mean, if the Jewish man’s defrauder gets more punishment than the atheist man’s defrauder…aren’t the religious being privileged?

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            • Also, it occurs to me that taking the religious beliefs of the victims into account when charging, leads us into a potential paradox…why would we not then give the religious beliefs of the *perps* equal weight?

              That is, if the crime of shaving Amish victims is worse than just shaving a regular bearded guy, because shaving ‘defiles’ an Amish man, shouldn’t the fact that the perp’s religion drove him to do the shaving (in love, remember, to compel the return of a lost sheep to the flock) qualify the perp for some leniency?

              This all just seems way too abstract for the govt. to be messing about with it. If we don’t let perps off the hook for saying ‘God told me to do it’ (and to be clear, I do not argue we should), why should we increase the sentence when the victim says ‘I have been defiled in the sight of God’?

              Isn’t it just simpler to say, ‘kidnapping, assault, 7 years, next.’

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    • The issue is not so much that it was punished as a crime, which I think we can all agree was legitimate, but rather the disproportionate severity of the sentence and the blatant abuse of the interstate commerce clause.

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      • Exactly BB, no one is saying what they did wasn’t a crime – in fact, I consider kidnapping and assault extremely serious crimes. I know I had some fun in the OP with the ringleader’s name etc., but the victims’ terror and shame was indubitably real, and I am not trying to minimize that. There should be punishment.

        I am just not sure what benefit society gets from charging them with ‘hate crimes’ – it seems to me we can do all we need to do to these guys, under state laws prohibiting kidnapping and assault.

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  5. What’s important to understand here is that an Amish man’s beard is the source of his power. They were shaving his beard in order to weaken him in preparation for a future attack.

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  6. Question for the group: Is this a hate crime?

    A 41-year-old Santa Cruz man who traveled to Los Angeles to support the San Francisco Giants in the season opener against their archrivals was on life support Friday after being beaten by two Dodgers fans.

    Bryan Stow, a father of two who works as a paramedic, was leaving the stadium with two friends after watching the Giants lose 2-1 Thursday night when the two men began to harass the group, said Los Angeles police Detective P.J. Morris. Stow was wearing Giants gear.
    As the friends walked toward the parking lot, one of the attackers punched Stow in the back of the head, police said.

    Stow fell and hit his head on the pavement, and authorities say his attackers continued to kick him as he lay unconscious. His friends were attacked when they tried to intervene. Their injuries were minor, police said. But Stow is fighting for his life.

    It’s universally agreed that there was no argument or other contact prior to the blow, and that Stow was attacked purely for being a Giants fan.

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    • By the arguments you and Tom have made (and I think they are good arguments, in case I wasn’t clear on that) I don’t see why this wouldn’t be.

      The effect would certainly be to intimidate other Giants fans, I would assume, and we could see an increase in sectarian violence.

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      • Actually, I’d say “no”. There was, as far as I can see, no intent to intimidate and no premeditation: just a group of violent thugs and an unfortunate innocent who was in the wrong place at the wrong time. And I don’t know anyone who’d hesitate to go to a Giants game at Dodger Stadium if they happened to be in LA that day. A hate crime enhancement was considered but, to the best of my knowledge, not pursued.

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          • Guys, to be clear…nearly killing a guy for wearing the wrong jersey – no extra penalties. Shaving a guy for not being pious enough – extra super penalties.

            See why this makes me crazy?

            IIRC, a lot of soccer hooliganism is premeditated and designed for intimidation (resembles gang violence more than sports fandom). Are there US equivalents?

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            • No open warfare for the fans of sports teams*, but how about gang crimes themselves?

              If a black kid is killed by a non-black gang member, is that worse than if the killer were a black gang member? If so, isn’t that unequal treatment before the law?

              And I don’t even want to try to sort out what was going through Major Hasan’s head. Does it matter? He was hatin’ on something.

              ____
              *Well, a little bit.

              http://patsblog.projo.com/2011/08/gang-feud-suspe.html

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              • Let’s go a little further and posit that this gang wears beards to signal membership in and solidarity with their gang – that the beards are their ‘colors’, so to speak. Let’s also assume that the shaving was intended to warn other gang members, to stay ‘gangster’.

                Hate crime?

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                • All of this is why I’m very squishy on hate crime laws and would rather see any “enhancement” done via existing laws on intimidation, terrorism, etc.

                  So this case could include charges of assault and something related to intimidation (I don’t know the specifics of those laws). The culprits will most assuredly be convicted of the former and, if there is enough evidence, convicted of the latter. Evidence for the latter would include premeditation and intent to intimidate.

                  I think “hate crime” laws really suffer from poor naming. If I hate Mr. Bojangles because he is an asshole to me and I kill him because of that, is it a “hate” crime? I mean, “hate” was present. Rather than call them hate crimes, we should call them what they are: actions intended to intimidate and deny the rights of others.

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                  • I sometimes wonder if we’re looking at this backwards. What perhaps we should be thinking is that you get less punishment if you had some moderately ‘sane’ reason for your actions. Instead of assault being 10 years and hate crimes rules adding two, instead we say assault is 12 years, but you get two years off if you can come up with any reasonable justification besides ‘He was a member of group X and that made me attack him’.

                    Why? Because someone who runs around attacking people for _no_ reason (Or, worse, their reason is to intimidate entire groups of people) is much more harmful to society than someone who assaults someone because that person stole their parking space.

                    Incidentally, this would also then neatly lump _gang_ violence under the same laws. Sorry, the reason ‘I attacked him because he was a member of a different criminal organization’ doesn’t work. And neither does ‘I attacked this random person because my gang made me.’

                    The problem is, phrasing it that way makes it look like we’ve started accepting ‘justification’ for crimes…which, in a way, we have. (In fact, we’re currently doing that now with existing hate crimes.) But it sounds really bad to say there are ‘good reasons’ and ‘bad reasons’ to commit crimes, even if we’re also saying ‘But everyone goes to jail, just slightly less time for good reasons’.

                    And now I’m wondering if there ought to be three levels. The lowest is when a crime is done for an actual _benefit_ to the criminal, the next level is when a crime is done out of individual anger(1), and the next is the hate crime level we’re already talking about.

                    1) Yes, those two seem backwards, but don’t confuse this with premeditation, which is also a modifier. Crimes done for material gain are easier for society to deal with for multiple reasons. There are more obvious motives when investigating, there are ways to structure society that make those crime less likely to happen, etc, etc. Plus, in the cases of physical harm, the premeditation would increase the punishment back up anyway.

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  7. First off, I think the conversation here is really interesting, and as patronizing as it may seem, I want to applaud all the participants. This is the type of topic that could easily set off a tinderbox but thus far it has been wholly constructive and enlightening. I’ve always been very squishy on hate crime laws and I remain that way after this conversation, which is actually a testament to what is going on here. Every time I think I reach an understanding, someone offers a really powerful challenge to that.

    Second, I wonder if part of the qualifications for a “hate crime” ought to be the victim’s membership in a historically marginalized group. Let me explain…

    Before I explain, let me say that I don’t know the history or motivation of existing hate crime laws. What I’m going to present is how I think they SHOULD work… or more accurately a consideration of how maybe they should work…

    Okay, NOW let me explain…

    For a long, LONG time, black folks in this country received little to no protection from the government. A lot of this time, they were explicitly denied such protection. And for another portion of this time, they were technically explicitly offered it but systematically denied it by members of the government itself working in collusion with equally criminal members of the citizenry. Even to this day, many black folks feel they do not get a fair shake when it comes to the criminal justice system, a fact that someone can agree with without getting all conspiracy-theory. So a burning cross on the lawn was not simply a property crime and not simply a threat; it often served as a reminder of the lack of faith that black folks ought to have in the system protecting them. Many black folks didn’t, and still won’t, seek legal or government protection because of a very real feel that not only with they be denied it, but that they will be further victimized by those whose help they seek. This can be said about blacks, women, and other groups in a way that it cannot be said about all folks.

    For this reason, limiting hate crime prosecution to members of these historically marginalized groups might make sense if we view such laws as a corrective force against the historical and contemporary systematic prejudice. Black folks don’t have to worry that the people burning the crosses on their lawn won’t go to jail or that their protestations will somehow get them in trouble; instead, the opposite is true. Those who commit such crimes will not only be prosecuted to the fullest extent of the law, but we will extend what the fullest extent actually means!

    I realize there is a lot of trickiness wrapped up in this offering. And I’m pretty confident that this is NOT the intention of existing hate crime laws. And I don’t even know that this SHOULD be a standard applied to the enactment or prosecution of hate crime laws. But I think it is at least something worth considering… especially if someone brighter than I fleshes it out in a more coherent and succinct way.

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    • Hey Kazzy, I’ll leave it to others smarter than I to hash out yr thoughts here. I just wanted to say two things: one, thx for the kind words. Two, I think the reason this has stayed on the rails is *because* the participants in this drama don’t conform to the standard template we have for these things – this isn’t black vs.KKK, or homophobe vs. gay, or Muslim vs. Jew – the oppressor and oppressed in this case are of roughly equal standing in all our minds here, except for the actual crime committed. So I think it’s easier to not get sidetracked with other issues and old grievances. That’ s partly why this case interested me.

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  8. Putting the actual crimes aside for the moment, should the use of out-of-state clippers justify using the commerce clause to justify federal jurisdiction over the state in which the crimes were committed? Is a hate crime a civil rights violation?

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    • No, I think they abused the heck out of the commerce clause and if I was their defense attorney I’d try to pursue an appeal on those grounds unless the precedents are too overwhelming, especially since the Supreme Court moved to rein in some of the abuses of the clause in their Obamacare decision. The accused weren’t trying to tax scissors, sell scissors, ship scissors, smuggle scissors, or put a state import duty on scissors. Giving Amish men twenty or thirty years for “excessive barbering” or hair crimes seems like something that would spark a judge’s interest. Based on the sentence they received, you’d think they’d butchered their victims and left the bodies impaled on the church lawn. Six months in the country jail, a stern warning, and a protective order probably would’ve been plenty, and the perpetrators aren’t exactly a dangerous threat to society or society’s scraggliest of beards.

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      • The Interstate Commerce clause is the go-to justification for federal prosecution when no other jurisdictional authority can be found. I believe the War on (some) Drugs will provide the overwhelming precedents you allude to. I can’t tell you how many times I’ve read of a federal prosecution of someone growing marijuana, based on the flimsiest arguments for application of the IC clause imaginable, ranging from equivalently flimsy (the electricity for the grow lights was produced out-of-state) to even flimsier than in this case (if the crop had been allowed to reach maturity and any of it had been sold, it COULD have crossed state lines).

        Most of us wouldn’t accept justification this weak, but the feds do it all the time and it almost always survives appeal.

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  9. Agreed. The appeal should be based upon the power of Congress to claim this as being within the powers afforded by the Constitution. Take a look at The decision made in Carol Anne Bond V U. S. June 11, 2011. They should have been prosecuted by the State, which clearly would have been less draconian in their sentencing. (BTW I am not a lawyer). The Feds have no jurisdiction here.

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  10. Have we answered the beards question? Because I’ve got family in that area of the country who are Mennonite. Those Mennonites remain friendly with several Amish families of somewhat more liberal mindsets (at least by Amish standards). They have explained to me that the beards have to do with marriage/adulthood. The online explanations I’ve seen suggest that married men or those over 40 grow the beards. Mustaches are verboten for association with militaristic culture.

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      • One of my family members is lapsed Amish; he left the church for reasons that aren’t entirely clear. He was not shunned either. I’m not clear about the reasons for this. However, both he and his wife (my wife’s aunt) live near Sam Mullet and they have nothing but bad things to say about the man. There were allegations of far more improper conduct that were never reported to the proper authorities, owing to the religion’s inward looking traditions. Needless to say though, they’re not going anywhere with clippers.

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