While I adamantly opposed to hate crime legislation (wonderful as it might to imagine that anyone who kills me gets five extra years attached to his sentence, because I'm gay...my rotting corpse will grin in its casket when the sentence is given), I never did understand the frightened whispers that emerge from this supposedly Orwellian concept of "punishing thought."

As I tried to explain before, our legal system has always punished thought. That's why there are distinctions between murder and manslaughter, for instance. Murder is determined by "intent," i.e., the thought behind the deed.

"As I tried to explain before, our legal system has always punished thought."

Oh fer fuckssakes Patrick, here you go again.

In a criminal case of homicide it is the people's burden to prove mens rea and actus reus( “guilty mind” and “guilty act”, respectively).

This does NOT have to include WHY they had the guilty thought that lead to the guilty act..."i didn't like her dress, or she was gay" has never factored into the equation. Only that it was their intent to make them STOP BREATHING forever.

Hate crimes legislation will not only attempt to prove mens rea, but will also now try to attempt to interprete if the act was fueled by homophobia or racism.

This should be a concern, because if you get enough of these ridiculous cases heard, eventually you will end up with some brain-dead PC jury who will find in favor of it.

Then maybe all you will need to prove this will be that the victim was black or gay. Can you imagine the precedence these types of rulings will set up in our legal system? It will completely change the basis of criminal intent.

UGH.

Well said Feebie. The slippery slope this creates is scary (another possible tool of abuse by the government). Are these laws even necessary? If someone severely injures another based on their sexual orientation, are there not existing laws to give them their 'just desserts'?

I find it interesting that the 15 year old set on fire( I believe in Florida) all the boys who set him on fire were boys of color, hispanic and black, and yet no mention of a hate crime from the media.

DavidM -

Or the Christian/Newsom (ghastly, horrific, despicable) murders in Tennessee. All black assailants and a white couple.

If you murder someone and you are found guilty you should get every punishment the legal system has available in that state. Everything.

And when it is particularly horrific (torture, killing of a child, disabled or elderly person) then I think you should get special circumstances. But NOT just because you belong to a particular "protected" group.

When evidence of the crime that transpired clearly shows you are a monster, your sentence should reflect that. Particularly when the victim was by inherent nature was DEFENSELESS.

Should have said- "was by nature, inherently defenseless..." or something.

(Early morning, sick pooch, caffeine hasn't kicked in).

Sue me.

If you murder someone and you are found guilty you should get every punishment the legal system has available in that state. Everything
Posted by: Feebie at October 20, 2009 7:48 AM
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Exactly. It's just so funny that if these situations were reversed the media would be shouting about hate crimes. When it is reversed-Nothing but silence.

But David M, didn't you get the memo? Hate crimes *can't* be committed against Caucasian heterosexuals....

I too find the idea of "hate" crimes being punished more severely than others despicable...a crime is not any more or less horrible if the person committing it is a racist/sexist/homophobic, etc. This will open a huge can of worms...not to mention, how do you *prove* what a person is thinking?

Patrick, I didn't get a chance to jump in on that last one. You wrote: "Our legal system has always punished thought. That's why there are distinctions between murder and manslaughter, for instance."

Two points: (1) There is a distinction between thought in terms of what the criminal intended to do, and why he intended to do it. The what factor is, as you point out, clearly a determining factor as far as the specific crime committed: in order to convict for murder, the prosecution has to prove that the accused intended to kill the victim, whereas for manslaughter, intent to kill is not a criterion. However, up until the advent of hate-crimes legislation, the why factor has never been a factor in determining the crime committed. It is often a factor in demonstrating guilt; the prosecution in a major felony usually tries to establish motive as part of the chain of facts leading up to the crime. However, it's not essential; there are plenty of people who have been convicted of murder without a motive being demonstrated. The motive itself is not a crime. If it was, we'd all be in jail, because we all can be shown to have a motive to kill someone that we don't like or that we've crossed paths with.

So, once hate-crimes legislation criminalizes the motive, it's hard to see why enforcement would remain in a secondary-enforcement-mode only. If the thought itself is a crime, then why wait until the thought-criminal commits another crime? There are very few areas of the law where law enforcement confines itself willingly to secondary enforcement. We saw this last decade when states passed mandatory seatbelt use laws. They all said at first that it would be secondary enforcement only; you'd only get a ticket for not fastening your seat belt if you'd already been in an accident or pulled over for something else. Guess what happened? All 50 states now take the position that they will engage in primary enforcement; you can in fact get pulled over because you seat belt does not appear to be fastened, even though you have done nothing else wrong. The point is, once "hate speech" or "hate thought" is criminalized, there is no legal barrier to primary enforcement. And law enforcement promises of "oh, we'd never do that" are like... well, like the FTC promising not to prosecute bloggers, even thought the law gives them grounds to do so.

Second point (2): I'll have to find the study, but the overwhelming majority of all people prosecuted under hate-crime laws are white males. Minorities who commit what are clearly racially motivated crimes are routinely not prosecuted, because the prosecution doesn't want to "stir up the community", or because of a prevailing theory that minorities are incapable of racist thought. Thus, the law's application, if not its intent, has been overwhelmingly discriminatory.

"State of mind" has traditionally been considered a mitigating factor, hence the "temporary insanity" defense. By the "hate crime" logic, though, the hired assassin is the least guilty of all. He doesn't hate anybody.

Why is it that whenever the subject of hate crimes comes up,
people talk about murder? Murder is already a serious enough
crime that the legislation doesn't make that much difference.

Where it does make a difference is in otherwise
lesser crimes. Suppose the perp doesn't want [X] living in his
neighborhood. He paints a [Y] on the victim's house. Without
the hate crime legislation, even if his message of hate is
explicitly written on his victim's house, the crime is vandalism
and the penalties are light to nil.

Check out the FBI report on hate crimes in 2004 at

http://www.fbi.gov/ucr/cius_04/offenses_reported/hate_crime/index.html

The biggest single category is vandalism, there were only 5
cases of murder, and the ratio of white to black perps was about
1.65 to 1. That ratio doesn't say to me that the "overwhelming
majority of all people prosecuted under hate-crime laws are white
males".

So Ron, I found more recent (2007) stats here:

http://www.fbi.gov/ucr/hc2007/table_03.htm

Regarding the murders -- in the 2007 stats, there are only 9 cases of murders classified as hate crimes, obviously not a statistically significant sample. I'll get back to this. Let's look at some other categories. Aggrevated assault -- 752 whites charged, 212 blacks. (There are other ethnic groups in the table, but I'm not going to quote them because in every case I see, the numbers are insignificant.) Vandalism: 417 whites, 61 blacks. Simple assault: 974 whites, 388 blacks. "Intimidation" (I didn't realize that was a crime): 1438 whites, 235 blacks. For the year, the sum total of hate-crime charges in which the race of the accused was identified: 3802 whites, 1045 blacks -- about a 4:1 ratio.

With the exception of the simple assault numbers, these are out of line with the percentages for total crimes committed in these categories. Further, we find that in the violent-crime categories in which more accused are black than white, hate crime charges are almost never added; for instance, only 178 were charged in armed robbery cases, only 22 in grand theft auto cases, and only 2 in rape cases. This suggests that police are less likely to file hate crime charges when the perp is not white, which would appear to be at least partially an explanation for Ron's point.

Further, these stats are based on charges filed, not eventual convictions. Based on anecdotal reports (I know, I know), I conjecture that prosecutors are less likely to pursue hate crime charges when the perp is not white. In some districts, it's bad for a prosecutor's political career. The D.C. Sniper, John Allan Mohammed, was never hit with hate crime charges despite the evidence that he specifically targeted white people. (Not that it matters as far as how much time he will serve, but...) So the ratios in actual convictions are likely to be more skewed.

Another point: Think back to that "intimidation" category. What the heck does that mean? Yes, it probably included cases of actual threats. But I'm willing to wager that that's not all it is. It smacks of being a "hate speech" prohibition, and here we go into the realm of primary enforcement of speech-crime. That's the second-largest category in the whole report, with 2565 reports, exceeded only by the vandalism category, and far outnumbering the sum total of the violent-felony categories. So Ron, you have actually pointed me towards data that seems to be showing that hate crime laws really are going in the direction that we assumed they would go -- towards thought criminalization.

Many will say, with a straight face, that women cannot be "sexist."

Many will say, with a straight face, that non-whites cannot be "racist."

Many are morons.

I don't want morons fixing it so only certain groups (whites, males, straights) can be guilty of certain "enhanced" crimes.

The Thought Police are already here -- they're just looking for something to do ...

Cousin Dave, INTIMIDATE is defined at
http://www.lectlaw.com/def/i064.htm and means to intentionally
say or do something which would cause a person of ordinary
sensibilities to be fearful of bodily harm.

It's an overt act, and I think the thought crime category
is a bit premature. The hate crime laws remain one of the
few tools avialable to respond to clear attempts at
intimidation, like a swastica painted on one's walls or
a burning cross placed in one's yard.

While I can't say that they won't evolve into the boneheaded
level of misapplication that "zero tolerance" has exhibited,
we're hopefully seening some swing back from those extremes.

JayR: How very un-PC of you.

How very true.

Some of the most discriminatING groups in the country today are populated with people that fall under "traditionally disenfranchised" segments of society. And if you call them on it, then all of a sudden, YOU'RE the bad guy....

Patrick - you are so dumb. Emotions were used by the courts to determine motive and culpability, not sentencing. Until now that is.

Welcome to 1984.

Ron writes: "It's an overt act, and I think the thought crime category
is a bit premature. The hate crime laws remain one of the
few tools avialable to respond to clear attempts at
intimidation, like a swastica painted on one's walls or
a burning cross placed in one's yard."

I don't know, Ron, I still think it's the lazy prosecutor's way to an easy conviction, and part of the criminalization-of-everything movement. I don't why prosecutors can't use tools they already have available (depending on the exact act), such as destruction of property, breaking and entering, assault, or (in the case of cross burning) arson. I'm afraid it's going to turn out like the sexual-harassment thing did. Remember, back around 1990, when all of these sexual harassment statutes were being passed? Legislators assured us that courts would apply a "reasonable woman" standard? Well, guess what: they applied an "any woman" standard instead, and so anything that any man said in the workplace that any woman anywhere didn't agree with became actionable. And the law was actually designed to make that possible: it stripped away presumption of innocence, such that accusation became proof.

The hate crime laws seem to have a lot of the same characteristics; one thing that the backers of these laws seek to do is eliminate presumption of innocence, and they have made that quite clear. Look at the number of people who are eager to label as racist everyone who has any criticism for President Obama of any kind. That's the future of hate crimes prosecution; it will become a political tool. Mark my words. In fact, I think it already has become one.

Patrick do you understand the significance of the fact that hate crimes are distinct crimes, away from crimes against persons?

If all crimes are thought crimes, why is it necessary to define a new category of crimes to prosecute intent?

Feebie writes: This does NOT have to include WHY they had the guilty thought that lead to the guilty act..."i didn't like her dress, or she was gay" has never factored into the equation. Only that it was their intent to make them STOP BREATHING forever.

I would like to send you a postcard with a picture of the known universe on it, and a huge arrow pointing where earth would be, saying, "Wish you were here."

(Apparently, you're still smarting over the fact that you made a tremendous ass of yourself during the gay marriage discussion. "Bitter, hateful and vindictive, party of one!")

Crusader writes: Patrick - you are so dumb. Emotions were used by the courts to determine motive and culpability, not sentencing. Until now that is.

On the subject of dumb. (By the way, Crusader, stop trolling.)

Cousin Dave writes: The point is, once "hate speech" or "hate thought" is criminalized, there is no legal barrier to primary enforcement.

Thanks for a very thoughtful and informed reply. The transition from secondary to primary enforcement is one that I hadn't considered. And you're right. It's very worrisome. Folks will thrown in prison for having a swastika tattoo or something. Granted, they're not my favorite people, but until we at least have reasonable doubt of impending criminal acts, they should remain at liberty.

Two points: (1) There is a distinction between thought in terms of what the criminal intended to do, and why he intended to do it. The what factor is, as you point out, clearly a determining factor as far as the specific crime committed: in order to convict for murder, the prosecution has to prove that the accused intended to kill the victim, whereas for manslaughter, intent to kill is not a criterion. However, up until the advent of hate-crimes legislation, the why factor has never been a factor in determining the crime committed.

Took you all day to come up with that one, eh, Patrick? Zzzzzzzzzzzzz.

Sorry. Brushed the touch pad.

Cousin Dave, regarding the second quote, I don't have a huge number of cases that I know something about, but wouldn't it be possible for the "why" aspect of the crime to bring home the difference between murder and manslaughter?

For instance, if an African-American is run down by a speeding car, could the presence of anti-black propaganda in the home of the accused suggest reasonable doubt regarding the "unintended" stance of the defense? By itself, this shouldn't be grounds for a conviction. On the other hand, this and other possible mitigating circumstances could satisfy the minds of the prosecution that this was no accident, prompting them to pursue a murder charge vs. a manslaughter charge.

Of course, that's hypothetical. Prosecution is not likely to pursue a specious murder charge when they can easily get a conviction for a lesser offense. The point being is that the "why" is not this unheard of aspect.

Feebie, have you been hovering over this blog all day waiting for me to reply? I'm flattered! Really.

Malcolm Z writes: Patrick do you understand the significance of the fact that hate crimes are distinct crimes, away from crimes against persons?

If all crimes are thought crimes, why is it necessary to define a new category of crimes to prosecute intent?

Are all crimes thought crimes? Is it always necessary to have an intent in order to be convicted of a crime?

As I said before, I'm against hate crime legislation. It suggests a special status to minority victims of crimes that white heterosexual males wouldn't have...that is, until we can start recognizing that white heterosexual males can be the objects of prejudice, too. Or to be more precise, as Jay R points out, minorities can still be bigots.

Patrick writes: "Cousin Dave, regarding the second quote, I don't have a huge number of cases that I know something about, but wouldn't it be possible for the "why" aspect of the crime to bring home the difference between murder and manslaughter?"

Yes, I see your point. Establishing that a person had a motive to want to kill someone might make the difference between a murder and a manslaughter prosecution, as in the example you cited. As you say, it's circumstantial and not in itself sufficient, but it could add weight to a chain of facts that might lead to a murder conviction. For instance, if the incident had occurred at a civil rights rally, and the prosecution could offer up emails showing that the accused had made inquiries about the time and place of the rally, then that together with the propaganda might be sufficient to establish that there was an intent.

The part I object to is when the motive itself becomes classified as a crime, on top of the actual crime that was committed. So in our instance above, committing a hate crime would be an additional charge on top of murder, or else it would be some special classification of murder over and above first degree, which amounts to the same thing. Whereas, if it were proven that the motive was that the accused was angry because the victim owed him money, then the hate crime charge would not apply. That despite the fact that in both cases, there was intent to kill.

I still think it's a crutch for lazy prosecutors, and that existing laws should be sufficient for all of the cases where hate crime laws have been applied. I'm also afraid that it's the sort of thing that gives the people that the law is intended to protect a false sense of security. An example that I've seen mentioned is that of a swastika that gets painted on someone's house, and when the victim calls to report it, the usual thing happens: an officer shows up a few hours later, fills out a report, and then nothing happens. Well, unresponsive police forces aren't just a minority problem; they're everybody's problem. If I call the police to report that someone has knocked down my mailbox with a baseball bat, I'll get the exact same response. And another law won't fix that.

The part I object to is when the motive itself becomes classified as a crime, on top of the actual crime that was committed.

Bingo!

Where a lot of people get confused is that they don't recognize the distinction between a crime and criminal charges. Murder I & II, Manslaughter, Negligent Homicide are all charges for the crime of Homicide. It's the charge that reflects severity and intent, not the definition of the crime.

I don't oppose an escalation of charges a/o sentencing for 'hate crimes' type offenses. This is basically what occurs now. Someone who's committed a crime against some segment of society with the intent of terrorizing those individuals is going to be treated much more severely than someone committing the same crime without such a motive.

But what Hate Crimes advocates want is a two tiered crime scheme whereby crimes against certain groups are eligible for special charges. They believe that crimes against these individuals are more significant. This position implicitly diminishes the significance of crimes against non-preferred groups.

liki loo writes: But what Hate Crimes advocates want is a two tiered crime scheme whereby crimes against certain groups are eligible for special charges. They believe that crimes against these individuals are more significant. This position implicitly diminishes the significance of crimes against non-preferred groups.

Yes, I would object to this, as well.

The only point I wanted to make, and made, is that the law always has punished thought. If you're against hate crime legislation, fine. So am I. But don't hand us any nonsense about how we're headed into an Orwellian world where we're now "punishing thought." We always did.

Another point I wanted to make is that, since he was brought up recently, Matthew Shepard's death has been used as an argument for this hate crime legislation. Some may see it differently, but to the best of my knowledge, the law didn't fail Matthew Shepard. The killers were tried and convicted, and they will never breathe free again as long as they live. They would have likely gotten the death penalty, had Shepard's parents not appealed to the jury to spare them the death sentence. You can't punish someone beyond the death penalty, so what are they looking for in the advocacy of hate crimes legislation?