Creative Destruction

July 20, 2006

On Hate Crime Statutes

Filed under: Free Speech,Politics — Ampersand @ 5:12 pm

On a post at “Alas,” Plunky writes in comments:

I ain’t a lawyer, but I don’t think we should have laws about hate crimes. It is the act of the crime that is reprehensible, not whether the crime occurred because of prejudice, stupidity, whatever. Judges and juries have been weighing the motives of criminals for a long time, and they should be able to keep doing it without legislation that makes some _thoughts_ more criminal than others.

Essentially, I think hate crime laws are a violation of the First Amendment. They take something that is not criminal: hating a certain minority/class/etc and then using that to compound criminal sentencing. It is not illegal to hate women. It is illegal to rape women. If a person is on trial for raping a woman, it should not matter that he hated all women. He should be punished for the one illegal act, not his legal thoughts.

I think Plunky’s analysis is mistaken, because it ignores that many “hate crimes” are crimes not just against an individual, but also against an entire community. If I build a small campfire and roast some hot dogs on Woody Allen’s lawn because I’m hungry, that should be recognized as a different crime from burning a cross on Woody’s lawn because I want to tell all the area Jews that they might be assaulted or killed if they don’t move out.

I agree with David at Orcinus:

Bias-crime laws no more create “thought crimes” than do any other laws consigning greater punishments for crimes committed under certain species of mens rea (or the mental state of the perpetrator), including anti-terrorism laws. Differences in intent and motive can make the difference between first-degree murder and manslaughter. Enhanced punishments are especially warranted when crimes are believed to cause greater harm — and hate crimes quantifiably do so. These are standard features of criminal law, and no more create “thought crimes” than do laws providing the death penalty for first-degree murder.

More to the point (and as I also argue at length in Death on the Fourth of July), hate-crimes laws are not about taking away anyone’s freedoms — rather, they are about ensuring freedoms for millions of Americans.

As I point out in the book, hate crimes have the fully intended effect of driving away and deterring the presence of any kind of hated minority — racial, religious, or sexual. They are essentially acts of terrorism directed at entire communities of people, and they are message crimes: “Keep out.”

Amanda once suggested that we should start using the term “domestic terrorism” rather than “hate crime,” because that better explains why it is that these crimes should be punishable. I think she’s right.

19 Comments »

  1. If I build a small campfire and roast some hot dogs on Woody Allen’s lawn because I’m hungry, that should be recognized as a different crime from burning a cross on Woody’s lawn because I want to tell all the area Jews that they might be assaulted or killed if they don’t move out.

    False comparison; the two criminal acts aren’t the same. The analogy is burning a cross on Woody’s lawn because you were cold and the cross was the only wood you had, and burning a cross on his lawn to tell the Jews to get out of town.

    Not intending to derail your argument; just pointing out that your supporting anecdote isn’t helpful.

    Comment by Robert — July 20, 2006 @ 5:39 pm | Reply

  2. I don’t have a problem with hate crime laws, I have a problem with their selectiveness: In other words, people inclined to support them will suddenly find that the laws aren’t applicable when the perp is non-white.

    Comment by Tuomas — July 20, 2006 @ 7:42 pm | Reply

  3. In my experience, at least (and perhaps I should add: when the perp is non-white and the victim is white).

    Comment by Tuomas — July 20, 2006 @ 7:43 pm | Reply

  4. Tuomas, you are sadly mistaken. Many people charged with hate crimes are people of color. Recently in my country a Black man was convicted of killing a White woman in a hate crime attack.

    The reason more Whites are charged with hate crimes is because a) there are more White people b)white people are more likely to commit such crimes.

    Comment by Rachel S — July 20, 2006 @ 8:32 pm | Reply

  5. I have to call shenanigans on Dave Neiwert’s point about hate crime laws being perfectly ordinary extensions of the criminal law: as every first-year law student learns, there’s a fundamental difference between mens rea and motive. Homicide law is instructive: we don’t particularly care how someone arrives at their intent to kill, for example, so long as they did indeed have that intent to kill.

    Mr. Neiwert also misunderstands the crime of voluntary manslaughter, which in most jurisdictions is what you’re convicted of when you commit a murder under some sort of mitigating circumstance. No doubt Mr. Neiwert would argue that hateful motives constitute an aggravating circumstance, inasmuch as he asserts that hate crimes are “quantifiably” more harmful than ordinary crimes, but — and I admit that I have not read his book — that strikes me as a pretty hard row to hoe. A person murdered out of hate is just as dead as a person murdered out of, say, jealousy or rage.

    Comment by BC — July 22, 2006 @ 9:17 pm | Reply

  6. No doubt Mr. Neiwert would argue that hateful motives constitute an aggravating circumstance, inasmuch as he asserts that hate crimes are “quantifiably” more harmful than ordinary crimes, but — and I admit that I have not read his book — that strikes me as a pretty hard row to hoe. A person murdered out of hate is just as dead as a person murdered out of, say, jealousy or rage.

    It shows a misunderstanding of the issues to focus exclusively on major crimes, like murder. You’d understand why “domestic terrorism” laws are needed better if you look at relatively minor crimes.

    Take two cases of vandalism. In one case, some paints “Frank was here” on the side of a synagogue. In the other case someone paints a swastika on the side of the synagogue.

    Would you honestly say that the latter case is no more harmful than the former? Are the two crimes exactly the same, in your eyes?

    Comment by Ampersand — July 23, 2006 @ 12:39 am | Reply

  7. The procedural implications of hate crimes laws are bigger than the sentencing impacts.

    Yes, a hate crime may have a higher maximum sentence than a similar crime perpetrated for another reason, but those sort of crimes would have usually received near maximum sentences for ordinary crimes anyway, while they may be “typical” hate crimes, and hence receive less than maximum sentences in that context.

    And, the proper analogy would really be not between burning a cross for heat and burning a cross for hate, but between threatening someone with a burning cross for a personal reason like having an affair with your spouse who is a minister, and threatening someone with a cross burning based hate for their ethnicity. Cross burning statutes generally expressly include, or are judicial interpreted to require, a threat element not present when burning a cross for heat. Cross burning is singled out because when used in a particular way it has acquired a well defined symbolic meaning (get out because I hate you), just like other non-verbal statements, like a red cross or a white flag or ambulance sirens have, over time.

    But, the biggest issue is what evidence is relevant. Normally, in a case where someone threatens someone you are only allowed to introduce evidence tending to show that he did or didn’t do it. Character evidence about the Defendant is usually excluded. The jury isn’t told what groups the persons is a part of, or what nasty letters to the editor unrelated to this particular incident and containing no threats, that the person wrote.

    But, in a hate crime case, evidence that a crime was motivated by hate will often be admissible, usually in the same trial as other evidence, even though it amounts to little more than evidence of bad character, for example, of associations with racist organizations.

    The concern is that even if the jury would otherwise have a reasonable doubt concerning whether or not the defendant committed a crime, that the jury might either: (1) determine that someone who is associated with a racist group is more likely to commit crimes generally, or worse (2) decide that even if he might not have committed this crime, that he deserves to be punished anyway since being a member of a racist group is itself a bad thing. The second option is particular a concern because (2) could not legally be made a crime due to the First Amendment.

    There is also a concern about hate crimes laws providing juror backlash (e.g., “I won’t convict because I agree with the Defendant’s anti-gay views and don’t think he should receive extra punishment for that”), and because they may provide an appearance that the prosecutors office is not even handed. In contrast, usually in an ordinary crime case the prosecutor might often say: “Regardless of whether you agree or disagree with the Defendant’s views, we can all agree that everyone who does X needs to be punished with Y crime.”

    Comment by ohwilleke — July 26, 2006 @ 3:37 pm | Reply

  8. Tuomas, you are sadly mistaken. Many people charged with hate crimes are people of color. Recently in my country a Black man was convicted of killing a White woman in a hate crime attack.

    Yes, but are they charged of hate crimes when they target people that do not belong into a “Protected Minority” (women are not actually a minority, but for legal purposes, they are)? That is, is it even possible?

    And I’m not really sure what I should be sad about.

    The reason more Whites are charged with hate crimes is because a) there are more White people

    Pathetic. I have passed my elementary school maths classes, so I can do comparative analysis on groups of different size by simple division.

    b)white people are more likely to commit such crimes.

    Yes, because these crimes are defined in a certain way (as being specifically crimes against minorities). As black people commit more violent crimes compared to population (according to FBI statistics), it tells more about the said laws than about white people.

    Comment by Tuomas — August 9, 2006 @ 6:20 am | Reply

  9. Tuomas, I had to edit this comment a few times, because you really annoyed me with that “pathetic” comment. Rachel knows what she’s talking about; you, in contrast, do not (see below). You can’t help being mistaken (happens to all of us now and then), but you can choose to treat other people with respect, and in this case you chose not to.

    In other words, it’s okay to disagree, but you should be able to disagree without treating other people like crap.

    Yes, but are they charged of hate crimes when they target people that do not belong into a “Protected Minority” (women are not actually a minority, but for legal purposes, they are)? That is, is it even possible?

    Tuomas, the “protected minority” language you’re using is not present in any hate crime statute that I know of.

    Yes, because these crimes are defined in a certain way (as being specifically crimes against minorities).

    To the best of my knowledge, this model of hate crimes – that they establish certain “protected minorities,” and hate crimes cannot be committed against anyone outside of those groups – has no basis in reality. I don’t think the model of hate crimes you describe could even be constitutional, in the US.

    Let’s put some facts into this discussion. Here’s the text of Wisconsin’s hate crime statute – which is a very typical example, as far as I know. The relevant passage:

    If a person does all of the following, the penalties for the underlying crime are increased as provided in sub. (2):

    (a) Commits a crime under chs. 939 to 948.

    (b) Intentionally selects the person against whom the crime under par. (a) is committed or selects the property that is damaged or otherwise affected by the crime under par. (a) in whole or in part because of the actor’s belief or perception regarding the race, religion, color, disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property, whether or not the actor’s belief or perception was correct.

    There is not a single word there about “protected minorities.” There is not a single word there which says that racially-motivated crimes against white people aren’t hate crimes. Rachel is completely correct when she says that people can be charged with hate crimes for racially-based attacks on whites; you’re completely mistaken to think otherwise.

    I really think you owe Rachel an apology.

    Comment by Ampersand — August 9, 2006 @ 7:02 am | Reply

  10. I admit my mistake when it comes to how hate crime statures.

    However, the “pathetic” comment was rude, and the point could have been made in a more civil manner, but really, the “whites commit more hate crimes because there are more whites” -comment is pointless — about as relevant as the “Chinese commit more murders than Swedes because there are more of them!”

    Comment by Tuomas — August 9, 2006 @ 7:44 am | Reply

  11. It wasn’t pointless; in fact, what she said was perfectly correct, and good methodology. If you think it’s mistaken to point out that population size matters, then I have to question your understanding of statistics.

    I’m really not sure what point you’re making. My best guess is that you’re saying that Rachel shouldn’t have pointed out something so obvious. But this is the internet. You can’t assume that people you don’t know well, who you’re talking to in comments, will know even basic and obvious points.

    Comment by Ampersand — August 9, 2006 @ 7:53 am | Reply

  12. … edit for the rest of us.

    Should read:

    I admit my mistake when it comes to how hate crime statures work.

    I do think a certain amount of scepticism on my part considering the motives of hate crime statures is well-justified: I distinctly remember the argument I had with some folks regarding the issue whether non-whites can be racist. It seems that left-leaning answers therein to that question are “no, if they are, it is just internalized racism”, and “yes, but not against whites”.

    Comment by Tuomas — August 9, 2006 @ 7:54 am | Reply

  13. My best guess is that you’re saying that Rachel shouldn’t have pointed out something so obvious. But this is the internet. You can’t assume that people you don’t know well, who you’re talking to in comments, will know even basic and obvious points.

    Damn. You are correct on both counts. I got pissed off at what seemed like a patronizing point to make.

    Huh. I suppose I do owe an apology to Rachel.

    Comment by Tuomas — August 9, 2006 @ 7:57 am | Reply

  14. To add to #12:

    But as it is difficult to make a constitutional law with double standards, the resulting laws won’t reflect such double standards, altough the opinions of people may (of course, most of the time, bias is aginst non-whites, but I suspect the difference in whites making comparatively more hate crimes [that is, crimes that white make are far more likely to be classified as hate crimes] reflects a bias that holds whites as ones who should know better, whereas black crime is seen more as a result of bad social policies, and the outcome of racism against blacks).

    Comment by Tuomas — August 9, 2006 @ 8:03 am | Reply

  15. Oh, that argument I was referring to (#12)happened on Alas.

    Comment by Tuomas — August 9, 2006 @ 8:06 am | Reply

  16. But as it is difficult to make a constitutional law with double standards, the resulting laws won’t reflect such double standards, altough the opinions of people may (of course, most of the time, bias is aginst non-whites, but I suspect the difference in whites making comparatively more hate crimes [that is, crimes that white make are far more likely to be classified as hate crimes] reflects a bias that holds whites as ones who should know better, whereas black crime is seen more as a result of bad social policies, and the outcome of racism against blacks).

    Do you have any supporting evidence for this theory?

    There’s strong evidence that blacks systematically receive longer sentences than whites for the same crimes (I could provide you with a couple of citations, if you like). I don’t find that consistent with your theory that whites are held more responsible than blacks for their crimes by the justice system. (Although it’s also possible that I’ve misunderstood your theory).

    Also, the decision to bring up hate crime charges or not is made by prosecutors, who I would not expect to be a very fuzzy-liberal group on the whole.

    Comment by Ampersand — August 9, 2006 @ 8:14 am | Reply

  17. I see no inconsistency whatsoever, as I already admitted that usually the bias is against non-whites (and specifically blacks, I will now add/admit).

    That Blacks receive longer penalties hardly disproves my points, as assult is not the same as assault+hate crime.

    Also, the decision to bring up hate crime charges or not is made by prosecutors, who I would not expect to be a very fuzzy-liberal group on the whole.

    No, but prosecuters often have political ambitions and may want to prove their commitment against fighting racism to non-white voters.

    Comment by Tuomas — August 9, 2006 @ 8:29 am | Reply

  18. Also, I think if I start a comment by “I suspect…” then I probably won’t have any hard evidence.

    Comment by Tuomas — August 9, 2006 @ 8:32 am | Reply

  19. may want to prove their commitment against fighting racism

    Ahem… That’s not what I meant. “To”.

    Comment by Tuomas — August 9, 2006 @ 8:36 am | Reply


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