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Hate Crimes Laws: Dangerous and Divisive:

The "Hate Crimes" bill currently moving through Congress involves an unwise, and arguably unconstitutional expansion of federal criminal jurisdiction. But even at the state or local level, hate crimes are a bad idea. The whole debate of whether homosexuals should be included in hate crimes statutes is but one example of how hate crimes statutes undermine the principle of equal protection of the laws, by encouraging fights over whether some groups are or are not deserving of unequal, special protection.

The best argument for hate crimes laws is that a hate crime causes more harm than an ordinary crime, because it causes many other people to fear being victimized. This is true for some hate crimes (e.g., public vandalism of a synagogue), but certainly not all of them (e.g., a dispute between neighbors in which an epithet is used). Moreover, there are plenty of ordinary crimes (such as highly-publicized serial attacks on random victims), which also cause fear in many people besides the immediate victims. I suggest that judicial sentencing discretion allows for appropriate punishment for crimes which have unusually large secondary impacts.

As long as hate crimes statutes stay on the books, every hate crime statute should include a provision providing for extra punishment for hate crime hoaxes. (Above the level of punishment for ordinary hoaxes about non-existent crimes.) Just as a hate crime may cause heightened community fear, so does a hate crime hoax.

All the above points are elaborated in an Issue Paper I wrote for the Independence Institute.

Related Posts (on one page):

  1. Hate Crimes Laws: Dangerous and Divisive:
  2. Bush to veto expanded hate-crimes law:
  3. The Hate Crimes Temptation:
JB:
IANAL, but isn't making threats of violence with the intent to harass and intimidate illegal?

What distinguishes hate crimes from ordinary crimes is the fact that packaged with the assault/vandalism/whatever is an implicit threat of repeated attacks to the victim and everyone else in the victim's group. Can't the assaulter just be charged with both, and leave it up to the jury to decide whether the extra hate-crime charge should stick?

Beating someone up: Assault and battery
Beating someone up while shouting "Die faggot": Assault and battery, plus this associated charge.
5.18.2007 2:53am
Nathan_M (mail):
I'm confused. In order to convict someone of a hate crime, doesn't the prosecution have to prove the crime was motivated by prejudice?

So a dispute between neighbours (I assume a violent dispute, because otherwise it wouldn't be a crime at all) wouldn't be a hate crime just because a racial epithet was used?

Is hate crime law weird in the US, or am I missing something?
5.18.2007 3:30am
mr. meade (mail):
"Judicial sentencing discretion"? Isn't that some sort of myth? After the mandatory minimums, sentence calculators, and the rest of the things that keep the defense and the judge out of the sentencing equation, just how much discretion is there?
5.18.2007 7:43am
Barry P. (mail):
But even at the state or local level, hate crimes are a bad idea.

Well, all crimes are a bad idea. Unless you get away with them.
5.18.2007 9:15am
Fred Thompson (mail):
Hate crimes. Orwell would have loved it.
5.18.2007 9:26am
Justin (mail):
David, for people who aren't going to click on the issue paper, maybe you should spend maybe even a small portion of your post trying to explain why hate crimes are either "dangerous" or "divisive."

You do an allright job at explaining why they're "unneccesary," and to a lesser degree both underinclusive and overinclusive, but you hit on neither dangerous nor divisive.
5.18.2007 9:36am
johnt (mail):
Why play around with this, it's all political pandering, and supported by the same people who moan about divisiveness .

I wonder where this takes us under Equal Protection concepts and law?
5.18.2007 9:43am
Happyshooter:
Under the O'Connor ruling Equal Protection remains suspended until 2028.

Don't do anything that makes the preferred class mad.
5.18.2007 10:26am
terrorism:
"I suggest that judicial sentencing discretion allows for appropriate punishment for crimes which have unusually large secondary impacts."

So, do you oppose criminal laws on terrorism also? Should we prosecute acts of terrorism as simple murder, and rely on judicial discretion to impose additional punishment for their "large secondary impacts"?

What about lynching? Would you have opposed efforts to pass a federal anti-lynching law in the Jim Crow era?
5.18.2007 10:48am
AK (mail):
The best argument for hate crimes laws is that a hate crime causes more harm than an ordinary crime, because it causes many other people to fear being victimized. This is true for some hate crimes (e.g., public vandalism of a synagogue)

As JB addressed obliquely, if people other than the immediate victim are placed in fear of harm, the defendant can be charged with (among other things) common law assault and any number of statutory crimes prohibiting threats.

Hate-crimes-law proponents argue that spraypainting "Hitler was right" on a synagogue is more harmful than "Yankess suck." They're certainly correct that it's a greater moral evil. But if the former is to be punished more harshly than the latter, it should be because the congregants have been placed in fear of harm by a supporter of murder and genocide, not because he expressed his hatred of Jews.
5.18.2007 11:03am
Steve in CA (mail):
Yes, but what about spray painting "Yankees Rule"? That's got to be a crime of some sort.
5.18.2007 11:31am
Chris Bell (mail):

The whole debate of whether homosexuals should be included in hate crimes statutes is but one example of how hate crimes statutes undermine the principle of equal protection of the laws, by encouraging fights over whether some groups are or are not deserving of unequal, special protection.

Yes, but doesn't equap protection doctrine itself has that same fault? As we fight over whether homosexuals are are insular and minority group.....
5.18.2007 12:06pm
Brad D. Bailey (mail):
Nathan M has asked the right question. The prosecution now has to prove an additional element in order to get the conviction. We now have to prove motive.

In addition to proving that the defendant assulted the victim, we now have the added burden of proving that the defendant assulted the victim because the victim was [fill in the particular protected group]. Given the discretion of charging or not charging a hate crime, I'm not charging a hate crime.
5.18.2007 12:14pm
CJColucci:
Why can't a hate crime statute be sufficiently general that we don't have to have unseemly fights over who gets included: add extra penalties for someone who commits an act that would otherwise be a crime if it can be proven that a significant motive of the crime was hatred for persons sharing the (lawful) status of the victim? Then if you assault your neighbor because you're pissed off at him, it's just assault. If you assault him because he's a Jew or a homosexual or a Republican (but not if he's a drug dealer) it's a hate crime.
That said, I'm lukewarm on hate crime legislation. I don't think it does any great good, nor do I think it violates any important principle. Many acts are greater or lesser crimes, or not even crimes at all, depending on the motive. But if a bunch of people are performing otherwise criminal acts largely because of hate (who might not otherwise have performed them), and respectable citizens who are the targets of that hate want something done about it, even if largely symbolic, I see no reason not to give them what they want.
5.18.2007 12:46pm
loafer:
The whole debate of whether homosexuals should be included in hate crimes statutes is but one example of how hate crimes statutes undermine the principle of equal protection of the laws, by encouraging fights over whether some groups are or are not deserving of unequal, special protection.

Hate crimess statutes do not undermine the principle of equal protection of the laws any more than ANY other statute enforcing the princple. EVERY equal-protection statute has to pick which groups of people are protected. Title VII does not let employers discriminate on the basis of race, religion, or sex, but it does let them discriminate on the basis of weight, sexual orientation, attractiveness, intelligence, and criminal history. The ADEA and FHA(A) all set out protected categories as well. State employment discrimination and housing discrimination laws follow this pattern as well.

Why do you single out hate crime laws as "undermin[ing] the principle of equal protection of the laws" and not any of these others?
5.18.2007 12:46pm
Clayton E. Cramer (mail) (www):
David writes:

Moreover, there are plenty of ordinary crimes (such as highly-publicized serial attacks on random victims), which also cause fear in many people besides the immediate victims.
And this is one of the most powerful arguments against "hate crime" laws. Yes, a crime motivated by hatred of members of group A will, if widely publicized, cause all members of group A to feel threatened. But a robbery and murder that is motivated only by the desire to obtain the contents of the victim's wallet causes all members of the society to feel threatened. (At least, all members of the society that have anything worth taking.) So why doesn't the same logic apply to robbery, aggravated assault, or murder? All violent crimes that aren't motivated by bias produce a generalized fear in the population.

Let's just stop the pretending: this is about pandering to a group that is politically powerful, and wants violent crimes against it to be punished very severely--but doesn't much care about violent crimes committed against everyone else.
5.18.2007 12:53pm
wooga:

Title VII does not let employers discriminate on the basis of race, religion, or sex, but it does let them discriminate on the basis of weight, sexual orientation, attractiveness, intelligence, and criminal history
...
Why do you single out hate crime laws as "undermin[ing] the principle of equal protection of the laws" and not any of these others?

My understanding is that the former are (more obviously) within federal constitutional authority, and the latter are not. Sure, the commerce clause apparently makes everything technically within the federal realm, but people still have a gut aversion to the federal government going beyond the long established religion (1st), race (13 and 14) and sex (19th). Yes, the 14th is read more broadly now. But the point remains - people generally don't like the government messing with their right to discriminate - and will only grudgingly allow such interference by clear constitutional amendment rather than amorphous judicial fiat.

For example, the ADA gives me the willies, since things like "round door knobs" are now akin to swastikas and burning crosses.
5.18.2007 1:22pm
Houston Lawyer:
How does one prove that a crime is committed because of "bias"? If I oppose same sex marriage and get into a fight with a gay man, can my opposition to ssm be used as evidence against me if I am charged with a hate crime? Same question with regard to affirmative action.

Many proponents of ssm and affirmative action accuse all who oppose them of bias against the protected groups. The Mike Nifong's of this world would go there in a prosecution.
5.18.2007 1:31pm
Clayton E. Cramer (mail) (www):

How does one prove that a crime is committed because of "bias"? If I oppose same sex marriage and get into a fight with a gay man, can my opposition to ssm be used as evidence against me if I am charged with a hate crime? Same question with regard to affirmative action.
I would hope that the Supreme Court would correctly distinguish a political statement of disapproval of SSM from statements made during a criminal act, because one is protected free speech, and the other is not--but I no longer assume that the Supreme Court will let the Bill of Rights get between them and a Politically Correct result.

You do raise an important question. If Mr. X attacks Mr. Y with a baseball bat while yellilng, "Die, faggot!" that's pretty clearly a bias-motivated crime. But what if Mr. X has previously made statements of disapproval of homosexuality, and gets into a fight with Mr. Y? Mr. X may not even know that Mr. Y is a homosexual--but I can see an overzealous federal prosecutor deciding to pursue a hate crime charge against Mr. X, just so that all of his buddies in the bar association will think he's cool and progressive.
5.18.2007 1:38pm
Falafalafocus (mail):

The prosecution now has to prove an additional element in order to get the conviction. We now have to prove motive.

One minute there. I realize that (in most crimes where there is a mens rea element) the prosecution, strictly speaking, only has to prove intent and not motive. But I ask the prosecutors in the room: percentage-wise, how many cases have you won by proving intent without explaining the motive?

In otherwords, how many juries have accepted your explanation that defendant committed the battery against victim and that he did so intentionally, that we do not know why, but you should convict? I would venture that any half-witted defense attorney would jump up and down and say "if we don't know why, then how can the state say for sure that he committed the crime?"

Indeed, the reason that we have evidence rules permitting evidence of motive where it would otherwise be inadmissible (E.g., Fed. R. Evid. 404) is that intent and motive go hand in hand in most cases. And that jurors need this "element" to justify the guilty verdict. Your fear that you have this giant new element that you need to overcome seems a little overblown. My guess is that if you have evidence of intent when you file, odds are that you know the motive and can decide if the motive is a hate crime.
5.18.2007 2:05pm
Seamus (mail):

If Mr. X attacks Mr. Y with a baseball bat while yellilng, "Die, faggot!" that's pretty clearly a bias-motivated crime.



Not necessarily. If William Buckley, instead of just telling Gore Vidal, "Listen here you queer, stop calling me a crypto-Nazi or I'll sock you in your goddam face," had said "I'll teach you to call me a crypto-Nazi, you goddam queer," and actually punched him in the face, that assault wouldn't have been one motivated by bias against Gore because of his sexual orientation; it would have been motivated by anger at Gore's insult. (Of course, a vindictive prosecutor would have probably charged him with a hate crime, and may well have won a conviction, but that doesn't alter the fact that the epithet, while perhaps a sign of bias, isn't proof that Buckley's hypothetical assault (or his actual verbal outburst) was *motivated* by that bias.)
5.18.2007 2:05pm
Hans Bader (mail):
Even if you like local hate-crimes laws, you should oppose the federal hate-crimes bill, for civil liberties and other reasons.

The federal hate-crimes bill is so irresponsibly broad that even some supporters of hate-crimes laws have expressed concern about it.

The bill would allow people found innocent in a state hate-crimes prosecution to be reprosecuted in federal court, taking advantage of a loophole in constitutional double-jeopardy protections. That aspect of the bill troubles even some defenders of local hate-crimes laws.

Yale Law Professor Akhil Amar, who wrote an influential defense of local hate crimes laws in the Harvard Law Review in 1992, expressed concern about the potential unfairness of that in his remarks to Congress.

Moreover, as Dave Kopel notes, portions of the federal hate-crimes bill would also allow people to be prosecuted in federal court even if their crime had nothing to do with federally-protected activities.

That would violate the Supreme Court's decision in United States v. Morrison (2000), which struck down a federal gender-based hate-crimes law as being beyond Congress's enumerated federal powers to regulate interstate commerce and enforce the equal-protection clause.

The federal hate-crimes bill sacrifices civil liberties for the sake of political correctness. Senators should vote against it, and if need be, filibuster it.
5.18.2007 2:11pm
Henri Le Compte (mail):
AK: I don't think you go far enough in your example:

Hate-crimes-law proponents argue that spraypainting "Hitler was right" on a synagogue is more harmful than "Yankess suck." They're certainly correct that it's a greater moral evil. But if the former is to be punished more harshly than the latter, it should be because the congregants have been placed in fear of harm by a supporter of murder and genocide, not because he expressed his hatred of Jews.

You see, someone could spray paint "Yankees will DIE!!" and plenty more explict details about what that might entail. Then he could go about carrying that out-- slaughtering Yankees fans, players-- maybe in Son of Sam kind of killing spree, paralyze NYC with fear, and that would not be a "hate crime."

You see, you can have someone go on all kinds of horrific, intimidating, dehumanizing, hate-filled crime sprees against all kinds of groups of people (and all of which would serve to demean and humiliate everyone in that group*), and not have a "hate crime." Because, the "correct" group was not involved. See? Doesn't that make it much more clear?

*I'm thinking of a recent series of brutal rapes and murders that occurred in my town last year, carried out by an obviously sick, "hate" filled misogynist. Was eventually caught, with the rotting body of a woman sitting in his bathtub. The neighbors complained about the smell.
5.18.2007 2:22pm
Richard Aubrey (mail):
Yeah. The reason nobody had posted Clayton Cramer's point is that it is so incredibly obvious--no offense to Cramer--that everybody knows it. That people are talking about other reasons for it means...Cramer's right. Pandering. Accredited Victim Groups. What does it take to get on the AVG list?
The other stuff is bumf, obfuscation, smoke, taurine scat.
And the posters know it.

How long--I figure about three months--before a sentence that some member of an AVG claims is offensive is prosecuted? I mean, in the absence of any physical attack at all, and in the possible situation that the perp and the vic are in different time zones.

I know, I know. Won't happen. Can't possibly happen. Until it does happen and the won't/can/t-happeners are giggling like mad. Got us again, by golly.
It wouldn't be an unintended consequence. It's the goal.
Not that I have to tell anybody that.
5.18.2007 2:52pm
loafer:
No, the reason nobody has posted on Clayton Cramer's point is that it is so reductive as to be useless in any intelligent political discussion. Legislation is the expression of political will as interpreted by the legislature. Political will always has and always will include special consideration for the impassioned few as against the mostly-but-not-quite indifferent many. You can call it pandering to special interest groups or you can call it the defense of the minority against the tyranny of the majority, but it's present in all aspects of the legislative process. Self-styled libertarians in particular tread dangerously close to hypocrisy when they criticize "liberal" special interests while generally approving of policies like regressive taxation (relative to much of this nation's recent history) and health care left to the private sector. These in particular would fall in an instant were the electorate's collective opposition aggregated and set against them rather than remaining politically diffuse.
5.18.2007 3:32pm
loafer:
How long--I figure about three months--before a sentence that some member of an AVG claims is offensive is prosecuted? I mean, in the absence of any physical attack at all, and in the possible situation that the perp and the vic are in different time zones.
Hate crime laws have been around for a lot longer than three months. But please -- don't let my factual observations detract from your disgruntled foaming.
5.18.2007 3:37pm
Richard Aubrey (mail):
Loafer. Check out campus speech codes. See the fortunately gone Michigan State University's Student Accountability in Community.
There was a case in Michigan where a woman was heard by a sherrif's deputy saying to her husband that another couple ought to learn to speak English. She was arrested. I don't know about the outcome, but, as I say, the can't-happeners are being more than ordinarily energetic in directing our attention elsewhere.
5.18.2007 3:43pm
loafer:
We have a robust ecosystem of courts, a Constitution, private entites like FIRE, and media outlets such as this blog prepared to fight against abusive campus speech codes, Richard Aubrey. You yourself note that the code in question is "fortunately gone." If this is your evidence that our country is descending rapidly into Orwellianism, forgive me for not sharing your sense of alarm. Quite to the contrary, your evidence suggests to me that the system works.
5.18.2007 3:52pm
Clayton E. Cramer (mail) (www):

Legislation is the expression of political will as interpreted by the legislature.
And then reinterpreted by the judiciary, operating much of the time as superlegislators--unelected, and effectively unappealable.


Political will always has and always will include special consideration for the impassioned few as against the mostly-but-not-quite indifferent many.
Isn't it interesting that when it is your group trying to get what it wants, it is the "impassioned few," but when a business group does this, it "special interest lobbying"?
You can call it pandering to special interest groups or you can call it the defense of the minority against the tyranny of the majority, but it's present in all aspects of the legislative process.
Except that this isn't "tyranny of the majority" but criminal acts by a tiny minority of the population. The number of biased-motivated violent criminals out there is far smaller than the number of their potential victims.
5.18.2007 4:06pm
loafer:

Isn't it interesting that when it is your group trying to get what it wants, it is the "impassioned few," but when a business group does this, it "special interest lobbying"?

It's not. I specifically chose those terms to apply to both.


Except that this isn't "tyranny of the majority" but criminal acts by a tiny minority of the population.

You yourself accused the law of resulting from pandering to special interests. That implies a small number of constituents with strong views winning out over a larger number of constituents with weaker opposing views. You could describe this very common situation as a protection of the minority from the tyranny of the majority or as pandering to the undue influence of a vocal special interest minority. They are two ways to frame the same situation. Your broad attack against some kinds of special interest victories and (I presume) silent enjoyment of other kinds is hypocritical.

I'm not sure you're grasping the point here, but I have to get back to work. Good luck.
5.18.2007 4:12pm
Clayton E. Cramer (mail) (www):
loafer writes:

You could describe this very common situation as a protection of the minority from the tyranny of the majority or as pandering to the undue influence of a vocal special interest minority.
What tyranny of the majority are you talking about? Unless you define "tyranny" as refusing to pass laws that treat your group "special."
5.18.2007 4:21pm
Richard Aubrey (mail):
loafer.
You're right that the MSU case lasted until the outside world found out about it. But FIRE didn't bring a legal case. They just shone some light on it. The admin there would have continued it as long as they had the power. If the power balance shifts, then sunshine won't matter.
I'll see if I can find out what happened to the lady who was arrested for a hate crime, or perhaps it was ethnic intimidation.
It's nice that SAC got shut down. The problem is that there are people who think it's a good idea and have gained positions where they can implement their good ideas.
To say that the system works because, eventually, somebody had the money to spend fighting it is one thing. How many people get hammered before a case gets to the Supremes, and how much does that cost?
Making certain groups more special than others is an irremediably bad idea and will/has led to abuses.
Making it a bigger, broader federal law isn't going to improve things, is it? I mean, depending on your defintion of improve, I guess.
5.18.2007 4:46pm
Randy R. (mail):
I just have to laugh at some of the duplicitousness of the arguments made here. Usually, people here are arguing that we live in a representative democracy. Therefore, when our legislatures vote on a law, it should be law, and that should be much higher than any court.

At least, that's what everyone argues when it comes to gay marriage.

But now we have a situation when not only has a majority of our representatives agree that sexual orientation should be included in hate crimes, a recent Gallup Poll has found that a solid majority of Americans support it as well. Here are the numbers:

Favor Oppose
68 27 Total
60 34 Republicans
75 21 Dems
69 27 Indies

So -- a solid majority of Americans, a majority of congress -- What more do you want?
5.18.2007 5:15pm
Nathan_M (mail):

How does one prove that a crime is committed because of "bias"? If I oppose same sex marriage and get into a fight with a gay man, can my opposition to ssm be used as evidence against me if I am charged with a hate crime? Same question with regard to affirmative action.

Many proponents of ssm and affirmative action accuse all who oppose them of bias against the protected groups. The Mike Nifong's of this world would go there in a prosecution.

This seems to be the most common objection to hate crime laws here, and I have to say, while it's logically true, I have trouble seeing why people find it compelling.

Ask yourself what you would do if you were on a jury of someone charged with a hate crime. The evidence supporting this charge was that (1) the victim was gay, and (2) the accused opposed ssm. I simply cannot see how you would possible be convinced beyond a reasonable doubt that the crime was motivated by prejudice.

Admittedly, there is a danger of wrongful convictions with hate crime laws, but I can't see how it is any more of a danger than for other crimes. In fact, I'd suggest it's far lower than for many crimes, e.g. convictions for drug trafficking based exclusively on the amount of drugs possessed.

I just can't see how the danger of wrongful convictions is unique, or even particularly germane, to hate crimes. If you can't show a special danger of hate crimes in this regard, isn't your real objection that the criminal justice system doesn't provide more protections against wrongful convictions in general?

The only answer to this I can see if that hate crimes are particularly incidious because they will have a chilling effect on political speach. But if I'm right that the criminal justice system isn't so bad that, say, mere opposition to ssm will never be enough for a hate crime conviction (and really, is a prosecutor going to be able to convince twelve people, a majority of whom probably oppose ssm, otherwise?), is this an issue? Isn't the only real danger of a wrongful convictions going to be to, for example, in a case where someone beats up a gay person, for motives unrelated to prejudice, while calling him a faggot?

I don't want to trivialize the problem, but this doesn't strike me as any better or worse than the thousands of other wrongful convictions that occur every day. I don't see how this objection to hate crime laws is actually an objection to hate crimes laws, as opposed to a specific case of a problem in the justice system.
5.18.2007 5:34pm
Nathan_M (mail):
(I suppose I should add, since, for some, peoples' political beliefs matter as much as the arguments they make, I haven't thought about hate crimes much. I was generally opposed to them, but Mr. Kopel's post has convinced me they are particularly harmful, and it is probably appropriate to punish them more harshly.)
5.18.2007 5:45pm
Ken Arromdee:
Ask yourself what you would do if you were on a jury of someone charged with a hate crime. The evidence supporting this charge was that (1) the victim was gay, and (2) the accused opposed ssm.

The other people on the jury are not me, and asking me what I'd do isn't necessarily going to give the same answer as asking the jury.
5.18.2007 6:23pm
hymie (mail):
Looking at LectLaw, I see the definition
MANSLAUGHTER - The unlawful killing of a human being without malice or premeditation, either express or implied; distinguished from murder, which requires malicious intent.
Similarly, it says
POSSESS WITH INTENT TO DISTRIBUTE - to possess with intent to deliver or transfer possession of a thing to another person, with or without any financial interest in the transaction.
I conclude from this that the law is already full of examples where the intent and motivation of the criminal changes the definition and severity of the crime. I don't see why hate crimes are any different in this respect.
5.18.2007 6:41pm
Elais:
Clayton,

I guess you would be okay with a gay man being tied up and burned alive for being gay but with the perpetrators not getting any extra punishment for it?

How do you stop crimes committed against someone based on color or sexual orientation? Bury your head in the sand or sing Kumbaya?

Until there is no discrimination of any kind against being gay, black, Jew or whatever, hate crimes can and should remain on the books.

This isn't about being 'politically correct' this is about stopping they deaths and beatings of minorities.
5.18.2007 7:44pm
Peter Young (mail):
I would hope that the Supreme Court would correctly distinguish a political statement of disapproval of SSM from statements made during a criminal act, because one is protected free speech, and the other is not--but I no longer assume that the Supreme Court will let the Bill of Rights get between them and a Politically Correct result.

What would you say about evidence that a defendant had at some point in the past talked favorably about Marxist doctrine in a prosecution which charges a later violation of the Smith Act? What would you say about evidence that a defendant had at one point talked favorably about the use of explosives or the Communist theory of revolution in a prosecution which charges that later on he participated in a political conspiracy to bomb the U.S. Capitol or another governmental office?

What if the evidence was that in the past the defendant had possessed books about Communist theory--say the works of Marx, Engels or Lenin--or books about the use of explosives, say the Anarchists' Cookbook, but before the Smith Act or bombing conspiracy charges? Would it make any difference if the evidence showed that he not only possessed the books at one point but may have actually read them--as, for example, if the evidence was that a couple of the inside pages of the books bore the defendant's fingerprints?

Are you in favor in these cases of the Supreme Court making the distinction between protected expressive conduct committed before the charged acts and similar expressive conduct accompanying the charged acts?
5.18.2007 9:51pm
Peter Young (mail):
What if the evidence was that in the past the defendant had possessed books about Communist theory--say the works of Marx, Engels or Lenin--or books about the use of explosives, say the Anarchists' Cookbook, but before the Smith Act or bombing conspiracy charges?

The bold portion should read:

but before the acts that gave rise to the Smith Act or bombing conspiracy charges.
5.18.2007 9:55pm
markm (mail):
Elais:
1) Tying up any person and burning them alive is a horrible crime - but we can't execute the criminals more than once or imprison them for more than one lifetime, so I fail to see the point of increased penalties depending on who the victim is. Or are you suggesting some lesser penalty if the victim is a straight white male?

2) How about posting a link to some statistics about the deaths and beatings of minorities recently, not 50 years ago? Or haven't you looked for any? As far as I can tell, the only racial group that is currently in special danger from members of other groups are whites in urban centers...

Hate crime laws are inherently a "more equal than others" proposition - and like anything else that treats the color of your skin or your sexual preferences as more important than your character, they will help to perpetuate racism, gaybashing, etc.
5.19.2007 11:22am
AK (mail):
hymie wrote:
I conclude from this that the law is already full of examples where the intent and motivation of the criminal changes the definition and severity of the crime. I don't see why hate crimes are any different in this respect.
Your inability to see a difference stems from your confusing intent and motive.

The law generally doesn't care what the motive behind a crime is. It doesn't make a difference if you punch someone because he's wearing a green necktie, or because you're upset that your basketball team lost. Either way you have committed battery. But to convict someone of battery, you have to show that he intended to strike the victim. The law does not punish punches resulting from involuntary spasms.

Intent to strike/harm is the mens rea. The reason that the defendant formed the mens rea is usually irrelevant.
5.19.2007 12:07pm
Owen Hutchins (mail):
Hate crimes involve intent. Intent has always been an important part of criminal proceedings.
5.19.2007 5:06pm
whit:
"I guess you would be okay with a gay man being tied up and burned alive for being gay but with the perpetrators not getting any extra punishment for it? "

what a bunch of rubbish. i would support the death penalty for that.

so, what difference does it make if it was a gay or a straight man.

reminds me of the whinging that people did after the jasper texas case in complaining that THIS was why we need hate crime laws. you can't get any MORE severe than the death penalty. hate crime laws can't give an offender TWO death sentences.

hate crime laws suck for a # of reasons. one of the primary ones is that it sets up a hierarchy of hate, so to speak.

kill somebody because you hate capitalists, and the victim is a capitalist, and that's not a hate crime.
5.20.2007 12:43am
Alan K. Henderson (mail) (www):
I guess you would be okay with a gay man being tied up and burned alive for being gay but with the perpetrators not getting any extra punishment for it?
Burning a man to death is a capital crime (in jurisdictions that recognize capital crimes). How do make a sentence of execution harsher, without violating the Eighth Amendment?
5.20.2007 2:58am
JohnDavidGalt (mail):
Your statement of "the best argument for hate crimes laws" misses the point. Hate crime laws exist in order to deter terrorist crimes -- crimes that are not merely scary but are committed for the purpose of putting third parties in fear, and thereby forcing them to do the criminal's bidding.

A good example from US history is the Ku Klux Klan. When they killed someone, burned someone's house, or even just burned a cross on someone's lawn, they were clearly making a threat-by-gesture, aimed not only at the victim but at all other blacks in the area: "Get out of 'our' town or you could be next."

While this can be seen as the expression of a viewpoint, it isn't and shouldn't be protected by the first amendment because it's threat speech.

And it is not possible for anyone to honestly believe that this threatening meaning wasn't intended by the perpetrators. Jurors who said otherwise were either complicit or feared retaliation themselves.

I'd be willing to forgo "hate crime" laws if the law became willing to make reasonable assumptions about the threatening meaning of such "gestures" in order to convict criminals such as the Klan of coercion by terrorism. But otherwise, hate crime laws are indispensable in protecting everyone's life and freedom.

Indeed, for the same reason, I'd like to see the law prohibit anyone, including the media, from communicating a terrorist's demands or motives to the public so long as he or any of his allies may still be at large. If the people whom a terrorist wants to bully can no longer receive his orders, he will no longer be able to profit by committing atrocities. This counter-strategy may not be very effective against the Klan in a small town, since word will get around anyway, but I would expect it to work quite well against the IRA, ETA, or Al Qaeda, each of which seeks to bully the population of at least one large country.

Sincerely,
John David Galt
5.20.2007 3:48pm
Ira Greenberger:
The federal hate crimes bill serves as a vital safety valve in case a state hate-crimes prosecution fails, much as federal prosecutors were able to step in and prosecute the police officers who savagely beat Rodney King after they were wrongly acquitted by a mostly-white state court jury.

As former ACLU National Legal Director Burt Neuborne noted in his testimony before Congress, a federal prosecution may be necessary where a state prosecution has failed owing to "inadequate resources" or "questionable effectiveness."

Consider an example cited by Human Rights Campaign in its April 25 press release. In Texas, "in July 2005, four men brutally assaulted a gay man. While punching and kicking him, whipping him with a vacuum chord and assaulting him with daggers, the offenders told the victim that they attacked him because he was gay. Two of the men were sentenced to six years in prison under a plea bargain that dropped the charges that could have sent them to prison for life. Under this bill, federal authorities would have had the jurisdiction to prosecute the crime" to result in additional jail time, since the federal hate crimes bill provides for sentences of up to 10 years for bigots who assault gay men and lesbians.

It would also help remedy the fact that a prosecution may fail owing to inadequate resources.

As Human Rights Campaign observed in its press release, "While most states recognize the problem of hate violence, and many have enacted laws to help combat this serious issue, federal government recognition of the problem is crucial to its solution. Too many local jurisdictions lack the full resources necessary to prosecute hate crimes. For example, when Matthew Shepard was murdered in Laramie, Wyo., in 1998, the investigation and prosecution of the case cost the community of 28,000 residents about $150,000, forcing the sheriff's department to lay off five deputies in order to save money."

While Matthew Shepard's murderers were convicted and imprisoned, there was no guarantee they would be given an adequate sentence, since Wyoming law did not mandate any penalty enhancement for their bias motivation.

Such protections were not available to Matthew Shepard under Wyoming law, and even if they had been, cash-strapped local law enforcement might have chosen not to allege bias motivation, since proving bias is behind a violent crime can add thousands of dollars to the cost of a criminal prosecution, even though it is a critical aggravating element to the crime that must be taken into account in setting an appropriate punishment.
5.21.2007 12:29pm
Hans Bader (mail):
The comment above illustrates the central purpose of the federal hate crimes bill: to exploit a dangerous loophole in constitutional protections against double jeopardy. That is also its principal evil.

It's not as if hate-crimes laws are necessary to give minorities equal protection. After all, Matthew Shepard's killers received life in prison, a typical sentence for murderers in this country, even though his killers weren't subject to a hate-crimes law. (Only a small percentage of murderers get the death penalty).

Moreover, today, most states (45 states) already have hate crimes laws, and most of those hate crimes laws include a long list of protected classes, including sexual orientation, race, sex, and religion. So it's not as if a federal hate crimes law is necessary to provide protection against hate crimes.

Instead, the purpose of the federal hate crimes bill is to take advantage of a loophole in constitutional protections against double jeopardy. That endangers even people who are innocent of any crime.

As New York University Law Professor James Jacobs, an expert on hate crimes, argues, "a federal hate-crime law would also put another nail in the coffin of our constitutional protection against double jeopardy. After all, every federal hate crime would also be a state crime, like assault, robbery, or murder. Thus, the defendants could be tried twice if special interests judged the first trial to have ended in an unjust acquittal."

(Imagine a federal equivalent of the Duke lacrosse prosecutor, Michael Nifong).

Even Yale Law Professor Akhil Amar, who wrote an influential 1992 defense of state hate crimes laws in the Harvard Law Review, told Congress that he has concerns about the prospect of dual prosecutions under the federal hate-crimes bill.

In supporting the bill, the ACLU has jettisoned principle and sacrificed civil liberties on the altar of political correctness.

Historically, the ACLU has raised concerns about federal laws against crime like the Fugitive Felon Act, citing the Constitution's ban on double jeopardy.

The ACLU feared that the creation of federal crimes would give prosecutors two bites of the apple, enabling a federal prosecutor to indict an accused person even after a state court jury has found him not guilty of a similar state crime.

(A divided Supreme Court created a gaping loophole in the constitutional protections against double jeopardy, ruling in its 5-to-4 decision in the Bartkus case that the double-jeopardy protection against being tried twice for the same crime only applies when both prosecutions are brought by the same unit of government, not when the first is by the state and the second is by the federal government).

The ACLU in the past declined to endorse federal hate crimes bills.

In its June 15, 2000 letter to the Senate criticizing aspects of the federal hate crimes bill, it raised the specter of "unwarranted dual prosecutions" (although it did not explicitly cite double jeopardy as a basis for doing so).

Moreover, under its longstanding policy (Policy #238a), it has long claimed to oppose federal prosecutions after state court acquittals.

ACLU Board members have said that such reprosecutions may violate the International Covenant on Civil and Political Rights (a human-rights treaty that the ACLU frequently invokes to accuse the United States of human-rights violations against minority groups or accused terrorists).

Now, however, the ACLU is endorsing the hate crimes bill.

And its former National Legal Director told Congress that reprosecutions of people found not guilty of hate crimes in state court are appropriate because of local prosecutors' inadequate resources or ineffectiveness.

Apparently, while the ACLU believes that criminals in general should receive every constitutional protection imaginable (and many protections that have no basis in the Constitution: the ACLU opposes the death penalty, "three-strikes" laws, victims' bills of rights, and the building of many new prisons), it believes that those accused of "hate crimes" are not entitled to the constitutional protection against double jeopardy.

The ACLU has given no reason for its unprincipled change in position.

But Southern California ACLU leader Paul Hoffman gave a possible explanation years ago in urging the ACLU to create a "civil rights exception" that would deny double-jeopardy protections to people accused of hate crimes.

Writing in the 1994 issue of the UCLA Law Review, Hoffman argued that constitutional protections against double jeopardy should be overridden in hate crimes cases, because society has a "compelling societal interest" in preventing hate crimes (by contrast, Hoffman apparently saw no compelling interest in preventing non-hate crimes, even murders).

The ACLU's about-face on double jeopardy is similar to its prior about-face on free speech, which it now regularly attacks.

Once upon a time, the ACLU took free speech to an unbounded extreme, at the expense of private property rights. It sued the owners of the Alpine Village Inn in Torrance, California for not allowing neo-Nazis to display swastikas in their restaurant, and sued a private shopping mall in Connecticut for not letting the Klan proselytize on its property.

By contrast, today's ACLU attacks free speech, and seeks to use government power to silence "hate speech."

Various ACLU chapters have disseminated model campus speech codes.

And in the 1999 Aguilar v. Avis Rent-A-Car System case, the ACLU argued that racial slurs are not speech, but just "verbal conduct." In that case, it helped convince a divided California Supreme Court, in a 4-to-3 ruling, to uphold an injunction banning any use of racial slurs in a private workplace, based on racial insults that the trial judge himself conceded had stopped years earlier. (The injunction banned not just face-to-face slurs, but comments that a complainant might learn about second or third-hand).

And in an Oregon case, the ACLU took the position that private employers' free speech rights are outweighed not just by state employment laws, but also the Establishment Clause. (The state supreme court ruled for the employer on rather narrow state-constitutional grounds in Meltebeke v. B.O.L.I., 903 P.2d 351 (1995)).
5.21.2007 1:47pm
A.C.:
Is there a demonstrated problem with hate crimes that are not prosecuted properly at the state level, either because of inadequate resources or because of sympathy with the alleged source of the "hate"? That is, is any sort of analogy with the early 20th century lynching situation even remotely applicable?

I would want to see some empirical studies before endorsing an expansion of federal jurisdiction in criminal cases. Anecdotes aren't enough, especially when setting up a system where something as slippery as motive triggers federal jurisdiction. How is that supposed to work in practice?

This doesn't worry me so much with state hate crimes laws, because the same courts end up with jurisdiction over the underlying offense and the "offense + hate" situation. State courts can sort out motive as part of the overall fact-finding process without running into a situation where the case is in the wrong court to start with. I would prefer to see this done as an add-on to the underlying offense rather than as an entirely different offense, as some people have suggested here, but I have no problem with the notion that intimidating whole groups can be a factor in determining the proper punishment for some offenses. How much depends on the offense -- motives of hate are a big add-on to ordinary vandalism, but I'm not sure they add anything at all to the severity of murder. Murder is already as serious as it gets.
5.21.2007 2:22pm
Hector Garza (mail):
Technical Question:

What if an attacker mistakenly assumed me to be a homosexual and attacked me on that basis?
Since the homosexual community may feel threatened, am I then entitled to greater than ordinary protection under the law, even as a heterosexual?
5.21.2007 6:01pm
Hans Bader (mail):
A comment above defended the federal hate crimes bill in order to achieve an end-run around constitutional double-jeopardy protections, citing the reprosecution of the police officers who beat Rodney King as precedent for the bill.

But there are key differences between reprosecuting state officials, like police officers, and reprosecuting private individuals found innocent in state court, as the federal hate-crimes bill would do.

It is a matter of simple common sense that local state prosecutors and courts are less likely to adequately prosecute and punish police officers who work with them on a daily basis than they are to adequately prosecute and punish private individuals who engage in hate crimes, with whom they have no prior relationship.

For example, Fairfax County prosecutor Robert Horan, who has held his post in one of the nation's largest counties for the past 40 years, has never prosecuted a police officer for misuse of force, not even police officers who killed unarmed suspects. But he vigorously prosecutes criminals who are not police officers.

Moreover, the Rodney King case is distinguishable, because Congress has special power under Section 5 of the Fourteenth Amendment to protect citizens from unconstitutional state conduct, which reaches the conduct of state actors like police officers.

But this power does not extend to punishing conduct by private citizens, as the Supreme Court made clear in United States v. Morrison, 529 U.S. 598 (2000). In that casem the Supreme Court struck down part of the Violence Against Women Act as beyond Congress's power to enforce the Fourteenth Amendment and regulate interstate commerce, finding that Congress could not create a federal tort remedy for victims of gender-based hate-crimes.

The attempt to rely on the Rodney King prosecutions is rebutted by Yale law professor Akhil Amar in his May 11, 1999 testimony on hate crimes before the Senate Judiciary Committee. He raised concerns about the federal hate-crimes bill even though he wrote an influential defense of local hate-crimes laws in the 1992 Harvard Law Review.

Professor Amar observed,

"In a 1995 Columbia Law Review article on the Double Jeopardy issues raised by the Rodney King case, Jon Marcus (now a federal prosecutor) and I argued that from a civil liberties perspective, it makes a good deal of sense to allow federal prosecution of state officials who abuse the rights of private citizens. Even after state officials have been acquitted in state court on state criminal charges--as were the Los Angeles officers in the Rodney King case--federal criminal prosecution in federal court for federal offenses might well appropriate, we argued. State courts and state prosecutors might predictably go easy on state officials, and these officials wield special and awesome powers over the rest of us. To protect the rights of ordinary citizens, it seems fair to hold abusive officials to a very high standard. But private citizens, we argued, were very different, and double prosecution of them in situations where state and federal governments are acting as a team seems unfair. (A separation of powers analogy is that a federal officer who wields special power over fellow citizens is subject to impeachment and ordinary criminal prosecution, but private citizens are not subject to this kind of double-whacking.)"

(That testimony is available at http://judiciary.senate.gov/oldsite/
51199ara.html)
5.22.2007 2:22pm
Hans Bader (mail):
One of the ironies of the federal hate-crimes bill is how everyone is focusing one relatively unremarkable aspect of the bill -- its inclusion of sexual orientation -- rather than its most troubling features, like its shredding of double jeopardy and constitutional federalism safeguards.

Take for example, the San Francisco Chronicle.

Bush's senior advisors recommended that the President veto the federal hate-crimes bill. Their reason? Parts of it exceed Congress's enumerated powers by federalizing local crimes (that is a correct position, as I have explained elsewhere). See http://volokh.com/posts/1178218258.shtml

But the Chronicle didn't acknowledge that in its editorial. Instead, it falsely claimed in its editorial that the reason the Bush advisors gave was that the bill would restrict the "free speech" rights of anti-gay groups. See Editorial, "A Hate Crimes Veto?," San Francisco Chronicle, May 4, 2007, at pg. B10.

See http://www.sfgate.com/cgi-bin/article.cgi?
file=/chronicle/archive/2007/05/04/EDGTLOS9K91.DTL
5.22.2007 6:18pm