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Hate crimes

It is a melancholy fact to face that while most of us, most of the time, like to imagine that we live our lives by some sort of moral code, and respect our fellows as beings deserving of respect if they do not threaten our lives or property, some people do not live by such a code, nor care. One particular species of maggot in our world is the person who likes to verbally and physically abuse disabled persons.

The issue of care and protection of the mentally and physically handicapped, raising as it does issues of personal autonomy, concerns about abuse of state power and medicine, etc, is too big an issue to push into a blog post. No, the point I want to address is the narrower one of whether it makes any sense at all to create another “hate crime”: the crime, as it were, of hating disabled people. In brief, I think creating such a “hate crime” is foolish, albeit an understandable move driven by those with honorable motives to protect the weak.

Let’s be clear from the get-go that I regard those who hate, and who act on that hate, of disabled people to be scum of the earth. It does bother me, though, that a crime of say, assault on a person and his property should be treated as being far more serious because the state has tried to measure, or establish, the hate that exists in the mind of the attacker. A crime is a crime, surely. If an able-bodied man is mugged in the street, does it make any specific difference in terms of sentencing the criminal, assuming the criminal is caught? The area where physical or mental disability comes into play in sentencing a criminal is where, say, the disability clearly meant that the disabled victim could not defend himself. That is why assaults on the aged and infirm, and on children, are treated – at least supposedly – more severely than assaults on say, the holder of a karate black belt. Of course, in investigating a crime, the fact that a suspect has a motive such as hate of group X or Y might be useful in helping to narrow down a list of suspects. However, as a factor in sentencing, the idea of “hate crime” strikes me as nonsense.

What next – political hate crimes where a person is sentenced for the crime of “hating” those in public office or who are members of certain ideological/political groupings?

43 comments to Hate crimes

  • tehag

    “as a factor in sentencing, the idea of “hate crime” strikes me as nonsense”

    Thanks for the declaration. Alas, you are in the smallest minority here. It is too late and too early. This vile poison of “hate crime” should have been intellectually defeated 40 years ago. Now, like sumptuary laws or PAD (Praising American Democracy) crimes, the poison must work its way through the system, which will take decades or centuries.

  • What people do is what they do. It is just as easy to describe such acts as “premeditated”. What is wrong with that term? Let us name things correctly. “hate crime” as currently used is in fact “thought crime”. That term has the correct resonance.

    To me, any unprovoked or disproportionate act of violence or intimidation is “hate”. Gordon Brown’s tax policies could well be “hate crimes”.

    Is it somehow nicer if I am beaten up by people of the same ethnicity? Of course not. A cracked skull is a cracked skull. The future threat to the population is surely the same regardless of the REASON someone premeditates violence against another. It is the very fact of premeditation.

    Speaking personally, I think more attention should be put upon discouraging clearly life-threatening acts such as kicking people in the head or body when they are down. That, to me, is attempted murder. I am more worried about defending what is going on in the head of the person lying on the ground than wondering about that in those standing and doing the kicking.

  • What next – political hate crimes where a person is sentenced for the crime of “hating” those in public office or who are members of certain ideological/political groupings?

    That’s exactly where we are going.

  • Inasfar as there is any reason to care about the motive of a vile act, we might ask: does the motive change the payoff for the offender? Does the motive increase the harm they are splashing about? The first case addresses the incentives that cause people to commit crime; the second, the harm for which they can justly be called to account.

    The reason that people who are real mensches don’t necessarily discard hate-crime as a category is that it plausibly changes both sides of the equation. Above and beyond personal preference, a campaign targeting any group whatsoever – but especially a casually identifiable group – creates special splashover benefits and harms, namely those resulting from targeted terror. The disliked group can be driven off or silenced disproportionately to the effort involved. This is why individuals, gangs, and governments like to indulge in it.

    You get extra gains for your cause by inflicting extra pains, you ought to pay the extra ticket.

    Except… how do we reasonably quantify the extra impact either way, and how can we be certain of states of mind, and above all how could we ever trust an authority to regulate and investigate such things? Where does ‘dislike of behaviour’ end and ‘dislike of identity’ begin? No, no – we really can’t afford the wedge for thought-crime and horse-tradeable privilege hierarchies that special legislation brings.

    So how to deal with group-based persecution, whether it comes from authority or in its spite? Three thoughts occur:

    - mens rea? Evidence that the perp set out to commit a crime without even the bad excuse of a personal quarrel, is evidence of malice and should surely be taken into the reckoning.

    - If an attempt criminally to intimidate selected people into doing or eschewing stuff can be proven, perhaps some offence akin to extortion could be drawn up? I’m deliberately not using the word ‘terrorism’ here, since this has been turned into a ridiculous everything offence, with the vicious core meaning growing ever dimmer in the spreading clouds of ink.

    - Punishing only the offence, but using limited resources to prioritize its most dangerous instances, as with mixed individual offences which together constitute a riot. The trouble with this is that you can’t trust the authorities not to play client games. One automatic way of achieving this otherwise would be to give all citizens more rights of self- and neighbour-, and more freedom to arrange their own security.

    People who detect a threat to themselves or their loved ones will much more reliably take action to track down the sod responsible, than some bureaucrat who must first work out how equal the apparent targets are this week. And when the ‘targets’ are paranoid, and stump up to catch a criminal who wasn’t targeting them after all – the rest of us can thank them for their civic-mindedness!

    I am waiting expectantly for Messrs. Brown, Cameron, and Clegg to conduct the appropriate reforms; also, for rather a lot of money which a much-persecuted Nigerian banker is scheduled to deposit in my account at about the same date.

  • Aargh! I wanted “more rights of self- and neighbour- defence,” drat it! Apologies.

  • Ian Bennett

    I regard those who hate … disabled people to be scum of the earth.

    As are those who hate anyone on the basis of some (perceived) group of which they happen to be members; but, as you say, the crime is in the assault, not in the reason for the assault.

    What next – political hate crimes where a person is sentenced for the crime of “hating” those in public office or who are members of certain ideological/political groupings?

    Or possibly the fact that an offence was against members of certain groupings being used in mitigation?

  • The definition of a “hate crime” which appears on a Home Office web site is something like “Any crime which anyone, victim or anyone else, considers to be a hate crime”. This is exactly the same as the criteria used to declare old women witches in the Middle Ages.

    Labour have absolutely no grasp of the fundamental principles that underlie a civilised society.

  • llamas

    And, as night follows day, ‘hate crimes’ will be followed by the next concept, which is ‘pre-crimes’.

    For an example, see the oleaginous letter sent by the provost of the University of Ottawa to conservative US speaker Ann Coulter, in anticipation of her invited appearance to speak at the University, reminding her that ‘ . . . Canadian law puts reasonable limits on the freedom of expression . . .’ and slyly suggesting that anything she says that falls afoul of that may lay her open to criminal charges for ‘ . . . promoting hatred . . . ‘.

    Such laws, steeped in vagueness and uncertainty, essentially make all but the most bland and banal discussions about the weather and the state of the petunias potentially-criminal, and allows the silencing of virtually-any expression by the mere threat of scrutiny. Any speech, any expression, that does not accord with the views of the state inquisitor, is thus rendered suspect and ‘pre-criminal’ In other words, speech itself becomes a ‘pre-crime’.

    Kafka would have been proud.

    llater,

    llamas

  • Laird

    As would Orwell.

  • Jessica Boxer

    Let me offer a different perspective. The criminal law does, absolutely give consideration to the state of mind of a perpetrator when determining the sentence. For example, if I hit a patch of ice on the road, skid, and crash you walking on the sidewalk, causing you injury, one set of sanctions applies. If I deliberately target you and mow you down, a different set applies. If I am seriously drunk when I do it, an even different set of sanctions applies. The only real difference in each case is my state of mind.

    Having established that, lets consider the basic core purpose of punishment in the judicial system. There are five purposes that I know of, being: retribution, getting them back; detention to protect society from dangerous individuals; restoration, repairing the damage; re-education, making the criminal a better person; deterrence, making crime pay to deter others from committing it.

    Given these purposes, are any enhanced by more severe punishment for the hate crime motivated individual? I think detention, re-education and deterrence are all enhanced. I think that the communities who are targeted have a reasonable right to demand that the poison of hate be punished in itself to deter, re-educate and detain, so that it can be excised.

    I’m not bleeding heart liberal, however, I think a broader understanding of the punishment of crime needs to be applied here, for the same reason the accident caused by the drunk is more severely punished than the accident caused by the careless or unfortunate.

  • llamas

    Jessica Boxer – and excellent point, and well-made. I think we may have gone to the same law school.

    However, your point falls down when you conflate the distinctions made between

    - deliberate acts and acts of mere carelessness or misfortune

    - deliberate acts and other deliberate acts.

    If I run you over in my car, the law does make a judgement about the severity of my punishment based upon whether it was a deliberate act – was I drunk, or did the gas pedal stick open? As it should.

    But if I beat you with an axe handle, it is a deliberate act of malice regardless of my motivation – I can’t beat you witjh an axe handle by accident, or through misfortune, can I?

    The law rightly discriminates between deliberate and non-deliberate acts. What it should not do is discriminate between deliberate acts based upon factors which have nothing to do with impact upon the victim or upon society, IOW, whatever crazy s**t was going on in the mind of the perpetrator when he committed the crime. Penalizing somebody (incrementally) for what he thinks is a slope with a very dangerous CofF. If we do not feel that the punushment for beating someone with an axe handle is severe enough, because those who so beat (our favoured victim group) do not get ‘enough’ time in jail for so doing, then the answer is to increase the punishment for all beatings with axe handles. Why should crimes against one group be favoured with more retribution, more deterrence, more societal protection or more restitution? What this says is ‘if you are not a member of a favoured group, your well-being is worth less to society’. Is that really what you want?

    Yours for Equal Justice Under Law.

    llater,

    llamas

  • Jessica Boxer

    llamas says:
    What it should not do is discriminate between deliberate acts based upon factors which have nothing to do with impact upon the victim or upon society,

    You are dancing to try to make your point. If I swing my axe handle, the head flies of and smashes the window of your car, I get a different punishment than if I deliberately bust your windows. Nonetheless, the impact on you is identical (busted windows, sorry about that.)

    However, what is the impact on “society”, whatever that means. If it is anything it is things like the fear of repeat offenses, the encouragement of others and so forth. However, these sorts of things are indeed enhanced by “hate crimes.” If someone thinks it is OK to beat the heck out of someone because they are black or Jewish, or a “raghead”, that sets up a societal meme that causes more of that stuff. Punishing the meme in itself is valuable.

    For example, murdering your wife to get the insurance money has a dramatically different effect on society than murdering Lucius because he is gay. Both are terrible, but the latter has a significantly enhanced impact of society, and there seems to me to be some justice in punishing that additional impact.

    Let me ask you, is it OK to have enhanced penalties for killing policemen or children? It seems to me that the arguments in favor of these enhanced penalties are pretty much the same: there is an increased societal impact beyond the horribleness of the murder itself.

  • Laird

    Jessica, what you’re talking about is mens rea, “evil intent”. And you’re right; it’s the difference between murder and manslaughter (or even acquittal). But once you’re reached “murder”, what you and the “hate crimes” proponents are talking about is inferring different sub-species of mens rea. And make no mistake, it is truly inference, since no one can truly know the mind of another. What this will ultimately devolve into is a presumption of “hate” whenever the victim is a member of one of the “favored” classes. The presumption may (and probably will) be unstated, but it will nonetheless be there.

    As to your essential point that increasing the punishment for “hate” crimes will enhance “re-education and deterrence”, all that says is that you share the mindset that killing someone because of his (for example) sexual orientation is somehow worse than killing him for his money. I find that completely abhorrent. The crime is the intentional killing of someone; the reason behind the forming of that intention should be irrelevant.

    And I find your celebration of “re-education” along currently-fashionable social norms to be truly chilling. “1984″ was supposed to be a cautionary tale, not an instruction manual.

  • Jessica Boxer

    Sorry, Laird, but I think you are wrong. Determining what is in people’s mind is difficult for sure, but courts are required to do it all the time. I would agree that beyond a reasonable doubt be applied to the “hate crime” enhancement is appropriate, and defense lawyers are tasked with the job of making sure that we do not default one way or the other.

    After all, some might think that since the police arrested him that that makes him guilty. That is a default that our system is designed to fight against.

    As to your “chill” over re-education, whether you like it or not our prison systems are designed with this as one of their stated goals. I should perhaps have used the word “rehabilitation”, but it amounts to the same thing. You might disagree that that should be part of prison, but the fact is that it is right now, Mr. Orwell, notwithstanding.

  • Laird, people who sufficiently hate others by-the-group – especially if they are conspiring with third parties to commit targeted acts of terror – are often more than happy to let it be known, in selected circles or to the victims and other witnesses, exactly why they are doing what they’re doing. That is actually often a rational part of their M.O. In these cases, we don’t have to read minds. We can see that two crimes are being committed: beating up somebody with an axe handle, and writing criminal injunctions and threats to other people in the first victim’s blood. This latter can also reasonably be considered a crime – it is sometimes so even when it is only done in ink and windy words.

    Where reading minds is required, we should and must do without it.

    Also, let us narrow down your ‘for the money’ example. One person knocks a rich guy on the head and steals their money. Another person knocks another rich guy on the head and steals their money, but also observes that ‘there’s a lot more where this came from, if you fat cat scum don’t clear out of this neighbourhood’. Both crimes are iterated.

    One combo of ostensibly similar crimes is a great deal more wicked and insidious than the other, and really imposes more harm on the targets.

    I lack Jessica Boxer’s evident faith in the honesty of the legislative, enforcement, and judicial systems – hence our disagreement on the solution (except for the general mens rea issue as above) – but I think that of trust, not this of equivalence, is where her point really falls down.

    Jessica, it seems to me that you are considering the incentives for criminals and victims in the situation, but not for the authorities who are empowered by ‘hate-crime’ laws. I think it is far too large an assumption even that they are acting in the interests of whichever groups they are seen to be protecting: as likely, they are trying to capture them as an alienated and dependent client group, on the old maxim of divide et impera.

    Effective special action against petty terror tactics may be necessary and desirable, and yet not lie within special law or authority.

  • Jessica Boxer

    Gray says:
    I lack Jessica Boxer’s evident faith in the honesty of the legislative, enforcement, and judicial systems

    Not so much. I am as distrusting of our government institutions as the next person. However, presumably extra punishment for hate crime add on is less than for the actual murder or assault. If we are willing to trust the system to inflict the greater punishment for the greater crime, why would we be less inclined to do so for the for smaller punishment for the smaller crime? Insofar as both require a judgement about state of mind?

    It is the classic judicial dilemma, is it not? It is better that ten guilty men go free than one innocent be punished. Yet, what about 100 guilty men, or 10,000? What is the ratio that we think appropriate? After all, there is one easy way to guarantee that no innocent men are ever punished, and that is to punish no-one. By letting the ten guilty go free do we contribute materially to the crimes that they subsequently commit due to the unjust liberty we offered them? It is not an easy problem, and the difficulty is compounded by the fact the system is run by bumbling, incompetent bureaucrats, who, apparently, lack the skills to get a real job.

  • llamas

    Jessica Boxer :

    1) what Laird said.

    2) you wrote:

    ‘If someone thinks it is OK to beat the heck out of someone because they are black or Jewish, or a “raghead”, that sets up a societal meme that causes more of that stuff. Punishing the meme in itself is valuable.”

    and while this is an alluring argument, the problem is that you have no evidence whatever to back it up. And, of course, what you are doing is (once again) punishing someone for ‘pushing’ what you consider to be bad motivations – not bad acts.

    3) You wrote:

    ‘If I swing my axe handle, the head flies of and smashes the window of your car, I get a different punishment than if I deliberately bust your windows.’

    Yes, we have already established that malicious intent, aka mens rea, is an element of the crime, and lacking that intent, yoiur punishment will be less even though the outcome may be the same. But there is no real question about malicious intent when you beat someone (merely an example – insert the actual harm of your choice here) – you can’t do it out of innocent motives or by accident.

    Well, in certain clubs in San Francisco, I suppose – but that’s not what we’re talking about.

    When you let the sate go to punsihing what are considere to be bad motivations, the time it will take for that power to be abused can be measured with an egg-timer. The state will do what it always does, which is to seek the easiest and most-profitable targets for selcctive enforcement, whether the profit be monetary or political. So we may see, for example the use of ‘hate crime’ laws in the UK, where Islamic extremists may openly solicit the murder of named individuals in public demonstrations without so much as a hint of censure – but woe betide the Roman Catholic who quietly and peacefully expresses the position of his faith on the matter of homosexuality – a night in the cells for him!

    While I have no doubt that your impulses are pure, I suggest you think twice about giving te state the power to (incrementally) punish bad thoughts. Blackstone and Jefferson taught us the reasons why, and nothing has changed in the intervening centuries – it will end in the corrosion of the liberties of all individuals, while completely failing to suppress the supposed bad thoughts of the tiny few.

    Yours for Equal Justice Under Law.

    llater,

    llamas

  • Johnathan Pearce

    Laird and Llamas have it right here, although Jessica’s comments are interesting. There is an attempt, as she says, to “rehabiliate” criminals and part of that reform process is trying to improve their character. This goes back a long way: the Victorian era saw quite a lot of attempts, some of which were pretty brutal, to rebuild the man, so to speak. And there are things like “reform schools”, etc.

    I just don’t think that if a crime is committed out of hate for group X or Y, that that should necessarily figure in the length of a sentence or the size of a fine. It should, as I said, of course be a useful piece of information in searching for the criminal in the first place. But as Llamas said, when politicians champion the case for prosecuting “hate crimes”, we should be careful that they are not, in their way, contributing to the insidious phenomenon of identity politics and the Balkanisation of our society.

  • MarkE

    Surely if I beat you to a pulp because you are too slow giving me your wallet, the crime I have committed is no less (and no more) than if I beat you to a pulp for having a black skin or any other reason (this is purely hypothetical as I am a middle aged wimp who has trouble beating a banana to a pulp making his breakfast)?

    What next – political hate crimes where a person is sentenced for the crime of “hating” those in public office or who are members of certain ideological/political groupings?

    In my defence I might argue that I have never hated a man (nor, incidently, loved a woman) I couldn’t respect and I despise all politicians without exception. Given the way laws tend to be drafted however, that could be a hate crime already. I think it already is because:

    I despise all politicians;

    Herman van Rompuy is a politician (President of the EU, former Prime Minister of Belgium and no doubt other roles);

    I therefore admit I despise Mr van Rompuy;

    Mr van Rompuy is also Belgian;

    Contempt for eminent politicians from other EU subject states seems to be “xenophopia” as defined by the EU, and which is a crime under EU law.

    Am I a hate criminal?

  • Jessica Boxer

    I am not advocating “hate crime law” in isolation, more as enhancements to existing overt acts. So, frankly, I think all you concerns about facilitating state action toward tyranny are groundless, we are talking about the state acting when we have already conceded that they should act. I favor free thought and free speech, and do not think that it is the government’s business what I think or say when I am a free citizen.

    However, when I commit a serious criminal act and am convicted of such a crime, I am not longer a free citizen, many of my rights are curtailed, and my thoughts, and speech, along with my actions do become the government’s business.

    Further, once again, it is already part of the criminal law that the “motivation”, to use your word, has an impact on sentencing. That is the difference between murder and manslaughter, rope or cell.

    Further, it is a fact of the criminal law that people are not punished in an eye for an eye manner, the punishment does not always fit the crime. Rather the punishment is designed in such as way as to have the most positive impact on society as a whole (based on the judgment of the democratic process.)

    Consequently, some criminals are punished disproportionately because it is judged best for society.

    You might not agree with either of these philosophical points of the criminal law, however, they are at the core of criminal law, and hate crime enhancements to punishment seem very much in line with them.

  • Gareth

    Jessica Boxer said

    Let me ask you, is it OK to have enhanced penalties for killing policemen or children? It seems to me that the arguments in favor of these enhanced penalties are pretty much the same: there is an increased societal impact beyond the horribleness of the murder itself.

    My view is that no, there should be no enhanced penalties for crimes against particular subsections of society. The state claims to want equality but by it’s words and deeds, it most definitely does not.

    In the case of the Police they are meant to be just like us but have pleaded special circumstances that elevate themselves above the man in the street. This special pleading has continued from group after group after group and our politicians have usually happy to grant it.

    Either we are all the same flesh and blood regardless of gender, skin, sexuality and religion or we are not. *Not* defending an ‘everyone is equal in the eyes of the law’ stance has been corrosive to society. Much bureaucratic time and taxpayer money has been wasted trying to integrate the wishes of pressure group after pressure group into our legislation. Each time a particular group obtains an exemption or protection it breeds resentment amongst the rest. It serves the State’s interest to do this as then all the other groups see the state as the go to guy for obtaining similar exemptions or protections.

    If politicians do actually want equality they would be best advised to lead by example. They do not want that. They want a fractured society unsure of the law that always looks to the state for help and for direction.

  • Johnathan Pearce

    Jessica, your position is untenable, and I just cannot agree with this:

    “I am not advocating “hate crime law” in isolation, more as enhancements to existing overt acts.”

    Ahhhh, “enhancements”. In other words, if a person is assaulted or subjected to say, relentless verbal and other abuse, that certain characteristics of the victim (such as their gender, skin colour, physical or mental aptitudes) should be a factor in sentencing the criminal. They should not, since in my view, it undermines the principle of equality before the rule of law. If we make attacks on religions a crime, then what next: the “hate crime” of attacks on atheists? The whole business devolves into farce, as more and more groups and sub-groups engage in a sort of political Dutch auction to win “special” status as a protected group.

    If someone attacks me, the fact that I am a white, middle class Englishman who is in decent physical and mental (!!) shape should not mean, in my view, that the attacker gets a lighter sentence than if he does the same crime to a woman or a member of a religious group, or whatever.

  • Jessica Boxer

    Gareth said:
    ‘everyone is equal in the eyes of the law’

    Justice is blind to the state and nature of the perpetrator, not to the appropriateness of punishment. Lady liberty takes off her blindfold when the verdict of guilty is delivered. There are many factors in a perpetrator’s character, behavior, attitude and life that affect the sentence, both mitigating and aggravating. Without a doubt, motivation is one of great import.

  • Johnathan Pearce

    Justice is blind to the state and nature of the perpetrator, not to the appropriateness of punishment. Lady liberty takes off her blindfold when the verdict of guilty is delivered. There are many factors in a perpetrator’s character, behavior, attitude and life that affect the sentence, both mitigating and aggravating. Without a doubt, motivation is one of great import.

    But of course. And to be clear here, I am not saying that motive is irrelevant to sentencing for a crime such as murder, say, or even theft. If a person steals who is starving, and we can prove that, then clearly that is mitigation. Similarly, judges can and do differ between “crimes of passion” and cold-blooded murder, and so on. But that is not quite the issue here. If a religious maniac murders someone whom he thinks is an infidel, and another murders someone he just hates for some other reason that is not covered by a “hate crime” classification, I am at a loss to see why one case should carry a more or less severe sentence than the other.

  • Sunfish

    However, when I commit a serious criminal act and am convicted of such a crime, I am not longer a free citizen, many of my rights are curtailed, and my thoughts, and speech, along with my actions do become the government’s business.

    “MANY of [your] rights.” Not all. Unless you were planning on repealing the “Equal Protection” parts of the fourteenth amendment in the near future.

    Further, once again, it is already part of the criminal law that the “motivation”, to use your word, has an impact on sentencing. That is the difference between murder and manslaughter, rope or cell.

    If that’s what you believe after taking Criminal Law, tell your law school you want your money back.

    The difference between “murder” and “manslaughter” is not one of motivation. The difference is of intent. For a death to be a murder, you must have acted with the specific intent to cause a person’s death. For it to be manslaughter, you must have acted recklessly[1]. WHY you intended to cause someone’s death is not relevant to the distinction.

    As for special protections for police…first, let me laugh myself to the point of incontinence. How often are these enhanced sentences handed down?

    (The answer being: in my state, the same assault that would get you 30 days in county if done to your significant other, would not even be filed if done to the cop who arrested you for whaling on Mr. Boxer. Having been in such a position, I’ve had multiple DDAs tell me that being beaten, threatened, or infected with hepagonosyphilAIDS comes with the territory and that I need to just deal with it. There may be a connection between this phemonenon and that of ‘street justice,’ but I couldn’t say for sure. The latter never seems to happen around me.)

    [1] Not quite the same a ‘stupidly,’ but there is a relationship.

  • llamas

    Jessica Boxer wrote:

    ‘Further, once again, it is already part of the criminal law that the “motivation”, to use your word, has an impact on sentencing. That is the difference between murder and manslaughter, rope or cell.’

    Yes – but the criminal law should only look so far into ‘motivation’ as is necessary to determine the basic nature of the intent – was the act intentional, or was it unintended, unforeseen or accidental? That’s the difference between murder and manslaughter – was there the intent to kill, or was the intent less than that but the victim died unintentionally? Furthermore, the law takes these factors into account only insofar as it relates to questions of guilt or innocence.

    You, however, want to expand this to suggest that the complete nature of the motivation should be taken into consideration, not only in deciding guilt, but also in deciding sentence – not only ‘was his intent malicious’, but ‘was it malicious in a particularly-unpopular way?’ – in which case, we will punish him more for having unpopular views.

    I take the old-fashioned view (taught to me by Blackstone, Jefferson and Coke) that there are no degrees of malice in determining criminal intent – once you’ve established a malicious motivation, they’re all as bad as each other. To do otherwise, and to assign heavier or lighter sentences based upon the affront to this-or-that favoured or disfavoured group, is to assign greater value to some citizens than to others. That is not ‘equal justice under law’, and it affronts the enlightened conscience. By all means, plead the actor’s circumstances or motivations during sentencing, whether in mitigation or in search of a harsher sentence – but there is no place in a law supposedly-equal for all for pre-determined harsher or lighter penalties for identical crimes, depending solely upon some perceived political calculus of the group identity and worth of the victim.

    I likewise do not agree with harsher penalties for offences against police officers (and I useter are one), the elderly or children, simply because of their status. The crime is, what it is.

    Your mileage most-certainly varies.

    llater,

    llamas

  • llamas

    Oh, and – what Sunfish said. Our telegrams crossed. Nice to see you again, SF.

    Regarding enhanced penalties for crrime against officers – we used to have a deputy prosecutor around here who liked to pile on with defendants by also charging them with assault on the officer, pretty-much regardless of circumstances. Someone finally had a quiet word in his ear – stop charging these guys for slapping or spitting on the officer. Sure, MopeyDope might get an extra five days in the pods, but Officer DoRight has to spend the next 20 years in the locker room, and he doesn’t want to get the reputation of running crying to the prosecutor every time he gets a little slap.

    ‘Street justice’? Well, now, that depends . . . . .

    llater,

    llamas

  • Laird

    Jessica, you make some very good arguments (probably the best that can be made in favor of “hate crime” laws), but in the end I don’t find them persuasive. It is one thing to distinguish, for example, between simple and aggravated assault, and to punish the latter more harshly. It is quite another to distinguish between the motivations behind two assaults of otherwise essentially similar character. I understand your point, that by such laws society is trying to deter crimes based largely on some personal characteristic of the victim, but I don’t accept that as an appropriate application of the police power. No one’s person or property should be more “valuable”, or more worthy of protection, in the eyes of society merely because of that personal characteristic. The goal of a rational society should be to deter all murders, and all assaults, not to deem some less important than others (which, by definition, is precisely what “hate crime” laws do).

    There are also a couple of “slipperly slope” arguments, partially touched on by Llamas. The first is the steady expansion of groups and characteristics deemed worthy of coverage by these laws. It started with blacks and homosexuals. I presume we’ve added Jews and Muslims to the list. Now we’re adding the disabled. Who will be next: the obese, or the physically unattractive, or the nerdy? Where does it end? (Hint: there is no principled means of drawing a line. Anyone with sufficient political clout will find a way to be included.)

    The second “slippery slope” is where conduct not otherwise considered criminal will be made so if directed against a member of one of the favored groups (viz Llamas’ observation about the disparate treatment in Europe of Mulsim protesters and their critics). Things haven’t gotten that bad in the US yet, but we’re already seeing the stirrings of it in the metastacization of the concept of “hate crime” into the “hate speech” codes now rampant in our universities. The two occupy only slightly different positions on the same continuum of thought. I would posit that the one will inevitably lead to the other (or, as Llamas would put it, the coeffecient of friction is dangerous). That’s not a path I want to take.

    So in the end, I guess we’ll just have to agree to disagree on this.

  • Laird

    Smited again! You’ll all just have to wait for my pearls of wisdom.

  • Kim du Toit

    “… see the oleaginous letter sent by the provost of the University of Ottawa to conservative US speaker Ann Coulter…”

    And Coulter has filed a brief with the Hate Crimes Tribunal of Canada, accusing the U of O with a hate crime, in inferring that she might break the law.

    Petard, hoisted by own, bureaucrat for the use of.

  • Lady liberty takes off her blindfold when the verdict of guilty is delivered. There are many factors in a perpetrator’s character, behavior, attitude and life that affect the sentence, both mitigating and aggravating. Without a doubt, motivation is one of great import

    . But Jessica, what you are doing is classifying crimes not by perpetrators, but by their victims: whether you like it or not, this will be the unavoidable result of your approach.

  • Nuke Gray

    We had a similar case in the State of Victoria. A Christian preacher, preaching in his own Church, was accused of vilification because of some things he said about Islam. some Muslims had heard about this, and so visited the church and then lodged a complaint about him and his ‘Catch the fire’ service.

  • Jessica Boxer

    Nuke Gray says:
    A Christian preacher, preaching in his own Church, was accused of vilification because of some things he said about Islam.

    I would be in favor of an enhanced charge had the Right Rev. Jolly subsequently burned down the local mosque. However, talking and thinking should always be protected. As I said though, once a criminal act takes place, the reasons behind that act are very much relevant to the appropriate punishment. Punishment in our system is not just retributive, it serves other purposes, including providing disincentives to future action.

    Although a mosque burned out of hatred might be just as much ashes as a mosque burned for the insurance money, each crime has very different “audiences” so to speak, and the disincentives need to be different.

    If you think the criminal justice system should only be about retribution and restoration as some libertarians do then you can certainly make a case. However, picking at one tiny edge of this without attacking the underlying philosophy which leads you there seems rather futile.

  • Jessica Boxer

    Alisa writes:
    what you are doing is classifying crimes not by perpetrators, but by their victims

    Not so much Alisa. What I am doing is classifying the appropriate punishments for crimes by the broader effects on society. Criminals are still deemed criminals by virtue of their acts regardless of the nature of the victim.

    I know libertarians generally speaking hate the word “society”, but the reality is that our system is designed with “society” very much in mind. As I said, attack that broad philosophy if you like, you might have a case. However, hate crime enhancements are a small and very obvious consequence of this, and the broader design of the criminal law.

  • Jessica, I don’t hate the word society, but I am convinced that it is nothing more than a group of any number of individuals (if you disagree, feel free to show evidence to the contrary). On that premise, the effects of crime on society are nothing else but the effects on actual and potential victims. So if, as you say, you are classifying crimes (and their punishments) by their effects on society, you are, in fact, classifying them by their effects on actual and potential victims. If then those effects are farther classified by the particular attributes of those victims (such as their race, religion, gender or age), then you are in effect classifying crimes (and their punishments) by their victims. Anything wrong with my logic there?

  • llamas

    Jessica Boxer wrote:

    ‘What I am doing is classifying the appropriate punishments for crimes by the broader effects on society.’

    The problem with this idea is that you have absolutely no proof that what you deem to be ‘appropriate punishments’ have any broader effects on society.

    Your stated purpose for ‘hate crime enhancements’ to criminal charges is to make other, like-minded people think twice before turning their attitudes into actions. This assumes that every racist or homophobe is poised at the very brink of committing some heinous act, and only the threat of an even heavier punishment that he would otherwise receive is holding him back from committing it.

    My own experience as a JBT (maybe Sunfish will chime in again) is that real life is nothing like that. The vast, overwhelming majority of racists and homophobes lead the standard lives of quiet desperation, and they would never dream of acting on their impulses. The standard punishment is quite enough to deter them – in fact, the very great majority need no deterrent at all, because they’re mostly hat, very little cattle.

    Those who are motivated to turn their impulses into criminal acts are certainly little deterred by the prospect of an ‘enhanced’ charge if they are caught.

    So the vast majority of the society that you’re trying to impact with these disparate punishments – doesn’t need impacting. They’re not going to do it anyway.

    The tiny minority that might commit these crimes – will commit them anyway.

    All of the state and Federal “hate crimes” laws that we have have made absolutely no difference to the rates or amount of ‘hate crimes’. Go ahead – look it up. If you can discern any positive effect upon the FBI “hate crimes” statistics from thirty years of accumulated “hate crimes” laws, you are a better statistician than I – and I’m pretty good.

    And the inevitable result is, as we have seen, that these laws are used selectively, arbitrarily, capriciously and generally for social and political gain, and not for the societal benefits you had hoped for. A preacher who wouldn’t hurt a fly is hauled off to jail, while another preacher openly advocates violence and murder and gets a free pass. In simpler terms, they are used (for the most part) to harrass and punish people for what they think, and not what they do.

    These laws are mostly feel-good measures designed to win the political and electoral favour of this-or-that group of voters. Of all the bases for making laws, this is the absolute worst, and I submit that they (in part at least) tend to increase the very prejudices that they are supposed to be punishing.

    llater,

    llamas

  • llamas

    (to the tune of ‘Folsom Prison Blues”)

    I hear that smite a comin’
    It’s comin’ ’round the bend,
    I’ve been at Samizdata,
    Since, oh, I don’t know when, but
    I’m stuck here in Smite Limbo,
    And time keeps draggin’ on,
    But Samizdata keeps rollin’,
    On down to San Antone.

    When first I started bloggin’,
    My Mama told me, “Son,
    Always be a good boy,
    Or they’ll surely Smite you down,”
    But I blogged a man in London,
    Just to watch him die,
    and when I see that old blue Smite screen,
    I hang my head and cry.

    I bet there’s rich folks bloggin’,
    In a fancy dining car,
    They’re probably runnin’ Linux,
    With great big avatars,
    But I know I had it comin’,
    I know I can’t be free,
    But those people keep a-bloggin’,
    And that’s what tortures me.

    Well, if they freed me from this prison,
    If that URL was mine,
    I bet I’d move out a little,
    Farther down the line,
    Far away from this Smite Limbo,
    That’s where I want to stay,
    And I’d let this lonesome keyboard,
    Blow that Blue Screen away.

    llater,

    llamas

  • Laird

    llamas, you have way too much time on your hands! Still, I’ll join you in the chorus; the Smitebot ate my post yesterday afternoon and still hasn’t passed it.

  • TDK

    Although a mosque burned out of hatred might be just as much ashes as a mosque burned for the insurance money

    But what is the difference?

    A mosque burned by racists is likely to generate sympathy for the victims. It might make society as a whole less racist. Would you argue that the Stephen Laurence case made “hate” attacks more common? In contrast an insurance claim dressed up as a fake hate crime is likely to increase resentment. It would tend to weaken claims when genuine “hate” crimes occur. Crying wolf.

    Your defence amounts to utilitarianism but it is incumbant to demonstrate that the total utility is less when hate crimes are committed rather than assuming this is case. You certainly haven’t proven it here. Even if we agree with the concept of hate crime, your argment still leads to the concept that the current criminal is being punished for what others might do in the future.

    We live in a far less racist society than in the past. Why then is it necessary now to create a new category of hate crime? “Paki bashing” vanished without any special law.

    What’s to stop false claims of hate crime? If we are robbed and I fancy the burglar being punished more, can I point to my wife’s Jewish background? Can I talk about my one-sixteenth Scottish ancestry?

    How do we determine hate?

    Do we use the left wing definition that racism = Discrimination + Power, which strangely makes it virtually impossible for black people to be racist, even when they are called Lee Jasper or Robert Mugabe; or do we use the traditional definition?

  • Sunfish

    Llamas-
    I don’t really have anything to add. Other than someone has entirely too much time on his hands and if I ever find myself in DEE-troit I’m going to find a bar with a Johnny Cash karaoke selection, because that’s something I just have to hear.

    In my state, a violent crime committed on the basis of someone else’s race is both the underlying crime and a separate crime called “ethnic intimidation,” a class-five felony regardless of the severity of the underlying crime.

    Except it’s only charged when it’s politically advantageous to do so. When a bunch of toothless douches who fail at life want to throw bedsheets over their heads and prance around Grand Junction, they always get a reminder. When a bunch of TreTre Crips want to run around LoDo and beat lone white males into comas, that doesn’t count.[1]

    Remember the guy who was dragged to death in Jasper, TX, 10-12 years back? The perpetrator died in a state-owned basement with a needle in his arm. Really, how do you up-charge from that?

    [1] And Mayor Chickenloser, who thinks he’s going to inherit the governorship from an incumbent of the same party who’s marginally more popular than genital warts, decided to order Denver PD to sit on most of the story for several months-and especially to sit on the part where the attacks were racially motivated

  • Rich Rostrom

    The law is at best a crude and clumsy tool. At best. (By the law I mean the entire system of laws, police, courts, and prisons.) It has enormous institutional overhead, for instance.

    Some of these weaknesses have been compensated for. For instance, in general, the punishment for a minor crime can greatly exceed the harm done. This compensates for the fact that the vast majority of minor crimes are never punished. The law doesn’t have the resources to detect, arrest, charge, try, and imprison for every single case of theft. But the law can put a convicted thief in prison for a few years, deterring others and also effectively punishing the many undetected crimes a typical petty criminal has committed. If this was not done, then either the law would be overwhelmed by cases, or theft below a certain amount would never be punished at all.

    Criminals find ways to exploit the weaknesses of the law.

    The RICO Act in the U.S. was a reponse to criminal adaptation: by dispersing money and responsiblity among a host of actors, criminal groups shielded their activities in “legal” organizations. RICO countered this by declaring the whole of such an organization criminal.

    “Hate crime” enhancement is a response to another criminal adaptation. When one social group wants to intimidate another, they can do it with relatively minor actions, stuff the law can’t afford to deal with as individual plain crimes. (In the context; random yobs can be dealt with, but sustained intimidation is vastly more difficult.)

    ISTM the terminology is wrong, focusing too much on the motive, and not on the pattern and implied threat. If one isolated person commits a crime out of racial or other bigotry, that can be dealt with conventionally. It’s the person acting on behalf of a larger social group, with the implied threat of further injuries, that is the danger.

    Like most elements of the law, it is clumsy, and open to abuse. I would abolish the present “hate crime” laws, but I feel something is needed to address the problem that spawned them.

  • Laird

    “It’s the person acting on behalf of a larger social group, with the implied threat of further injuries, that is the danger.”

    You’d better think very carefully about that, Rich. Unless you can clearly prove direct and proximate causation of the crime, you’re on the slippery slope toward criminalizing whatever group is currently out of favor (Tea Parties, Planned Parenthood, various liberty-oriented groups, the ACLU, anti-abortion groups, whatever). When that nut case flew his plane into the IRS offices in Austin it was originally claimed that he was a Tea Party member (although the truth is he was a leftist). The handful of (mostly meaningless) threats against Democratic congressmen following the passage of ObamaCare are likewise being attributed to conservative groups. Even if the person who commits some criminal act is actually a member of such a group it is generally wrong to impute his actions to the group itself (although PETA and some of the activist left-wing environmental groups, such as Earth First, are obvious exceptions to this rule).

    If we’re going to have hate crime statutes (which, as I have already stated, I oppose), they must be limited to the specific actor, not imputed to some larger group absent overwhelming evidence of culpability. And we already have adequate laws to cover that (i.e., aiding and abetting, conspiracy, misprison of felony, etc.).