I'm skeptical of hate crimes laws for various reasons, but I don't agree with the oft-heard argument that there's something unconstitutional or inherently wrong about enhancing punishments based on motivation.
Consider this comment: "I simply can not abide these 'hate crime' laws and am amazed that they have not been struck down. A murder is a murder; these laws criminalize speech, plain and simple." A murder is a murder -- yet the law has long distinguishes between different motivations for homicide.
Killing someone because you're enraged over his having attacked your family members (or even seduced your wife, a more controversial matter) is manslaughter. Killing someone because you just don't like them is often second-degree murder. Killing someone for financial gain may be more likely to be first-degree murder. Your motivation matters; and it will often be proved using your speech. Does it follow that these doctrines unconstitutionally "criminalize speech, plain and simple," or violate the principle that "[a] murder is a murder"?
Or consider treason law. Blowing up part of a defense contractor's plant in time of war is a serious crime. But it's treason only if it's done with the purpose of helping the enemy. If you blow up part of the plant because you're on strike and you're angry at the plant's management, it's still a felony, but it's not treason. Here the matter turns not just on motivation, but politically laden motivation (are you on our side, or the Communists' / Nazis' / jihadists'?). Still, motivation quite properly matters. We don't say "arson is arson; these laws criminalize speech, plain and simple" -- we distinguish between arson caused by anger or a desire for economic retaliation (bad though it is) and arson caused by a desire to help the enemy (worse).
The same is true with antidiscrimination law generally, though it's enforced through civil litigation: Motive is what turns perfectly permissible conduct into civilly actionable conduct. If a university is sued for expelling a student because of the student's conservative political speech, and its defense is that expelled the student for other reasons, the litigation will be all about motive. Likewise if an employer is sued on the grounds that if fired an employee because the employee was Catholic, black, white, female, or whatever else. The legal system does not say "firing is firing; these laws criminalize speech, plain and simple."
Now it may well be that a crime in which the victim was picked out because of his sexual orientation isn't materially different from a similar crime committed for most other reasons. It may well be that, even if there is a material moral and practical difference, drawing the line between the different motivations may be socially corrosive in various ways. It may well be that, even if there is such a difference, determining the speaker's motivations may too often require a focus on the speaker's political views, and might thus have too much of a deterrent effect even on lawabiding people. And it may well be that the laws are sometimes abused to actually punish constitutionally protected speech (rather than just using it as evidence of intent to commit a nonspeech crime).
As I said, I generally oppose hate crime enhancements, for a mix of these reasons. But "A murder is a murder; these laws criminalize speech, plain and simple" (and variants of this) is not, I think, a sound ground for opposition.
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- Crimes and Motivations:
- Fliers With Person's Picture + "God Hates Fags" = Felony:
They therefore enacted a law to allow themselves to give additional punishment to whites who murder blacks and hispanics.
Everything else is just justification.
Does the hate not matter when the victim is in the majority?
It seems that calling something a "hate crime" just adds complexity without adding justice.
In Pennsylvania, for instance, it's simple assault to punch you neighbor, the school teacher, in the nose because he mows his lawn too early in the morning. But it's aggravated assault to do it because he gave your child a failing grade.
Similarly, it's a grade higher (midsemeanor 1, instead of misdemeanor 2) to punch someone in the face because of the call they made as a sports official as opposed to generic reasons.
To the extent the complaint is rather that speech which would otherwise be protected is being rendered criminal, that is actually a different argument, and has nothing in particular to do with the level of punishment (any criminal sanction at all for protected speech is a problem).
http://www.stophatecrimesnow.com/
Rubbish.
From a de Jure standpoint, hate crimes do not specify race. Period. See this for example.
And from a de Facto standpoint, you have it utterly completely backwards.
Racism, and sexism, and lookism, and religious prejudices, and gay-bashing, and...
Once you include all of the things that can be considered "hate crimes,' there's not a lot left, except plain old greed and marital strife.
And, once again, I take extreme dislike to something that lets someone else get away with a lesser punishment for a crime, just because they (or their grandparents, or someone else down the line) got screwed over because of their skin color.
If some (ethnic) guy attacks me because of my white skin, it's a hate crime - he attacked because of his hate. Why should he suffer less of a penalty because some OTHER white guys beat up some third party because of his non-white skin?
Saying that someone is exempt from a penalty because of history? No, thank you. That's just badly-run affirmative action with a big club.
However, if I kill you because I don't like the color of your hair, why is is worse than if I kill you because I don't like the color of your skin?
Making this distinction is profoundly disrespectful to the victim and their family. It is effectively saying your death/loss is less important than someone elses because your killer was motivated by greed or generic hatred and not race specific hatred.
Generally speaking, murders of equal levels of premeditation should be punished equally. The reason I planned and carried out the crime should not be relevant except to the extent that I am trying to prove self-defense (i.e. I killed an abusive spouse).
On the margin, wouldn't hate crimes necessarily have a chilling effect: discouraging that element of the population that might commit crimes from expressing controversial opinions on public issues. Suppose someone hostile to persons in a protected class. Such a person would rationally be deterred from expressing any views consistant with that hostility about the protected class lest a simple traffic accident be characterized as hate-motivated assault.
A case in point is the recent Knoxville horror/atrocity and moral revulsion. Was it a hate crime? Seems likely. Yet, in terms of society at large, where the MSM was positively attracted to the Durham situation, it's largely been "hands off" in terms of the Knoxville atrocity. And that serves to contrast a faux crime with a genuine atrocity and horror.
Telling, and should give one pause regardless of the weakness of other arguments against the idea.
What hate crimes statutes are actually drafted like this?
I think you are conflating intent and motive. The differing penalties for killing a man because you caught him with your wife, or because you got in a bar fight, or because you robbed him and then killed him to avoid leaving a witness are related to how much intent you had. To have differing penalties based on whether you called him an SOB, or a black SOB is a whole different animal.
I think you probably get to the right conclusion on the free speech angle. Although the hate crime might be proven by what you say, what is actually being criminalized is what's in your heart. If you think about it, the same is also the case with trying to determine intent. Intention may be proved by what you said, but the standard is about what you actually intended.
I think the best angle to oppose hate crime laws is through equal protection challenges.
What part of the Civil Rights Act allows discrimination against white people? It clearly doesn't on its face, but that is how it is enforced.
Of course, in a purely retributive system, it might be a problem to aggravate punishments when the aggravating factor is not itself punishable in isolation. I say "might", however, because retributive theories are notoriously slippery, and a lot of it tends to come down to moral intuitionism. So, maybe to some people it makes sense that the sin of the whole is greater than the sum of sin of the parts.
Anyway, that doesn't really matter, because we do not live in a purely retributive system. So, for example, if you can come up with any sort of deterrence, rehabilitation, or incapacitation argument, you need not claim the aggravating factor made the crime more deserving of a harsher punishment.
Wow. If you believe that, you don't know much about the enforcement of civil rights in this country (they are sometimes called "reverse discrimination" cases, and they are certainly brought by the enforcement authorities).
Care to share some of those reverse discrimination links/cases?
In a free society, individuals cannot gain or lose any fundamental rights by membership or exclusion from any group. To me, this means that the government should not be permitted to discriminate in law between individuals on the ground of their membership in any group. Its ultimate purpose is to protect the rights of individuals. Period.
That was the basis for my opposition to the "distinct society" issue some years back in Canada; the more a government moves towards altering the legal context of individuals on the basis of their group membership (such as "francophones"), the more we move away from equality before the law, and towards the old feudal idea of political classes and privilege.
TransWorld Airlines, Inc. v. Hardison, 432 U.S. 63, 71-71 (1977) (“The emphasis of both the language and the legislative history of the statute is on eliminating discrimination in employment; similarly situated employees are not to be treated differently solely because they differ with respect to race, color, religion, sex, or national origin. This is true regardless of whether the discrimination is directed against majorities or minorities.”); Argo v. Blue Cross &Blue Shield, 452 F.3d 1193, 1202 (10th Cir. 2006) (“Title VII makes reverse discrimination unlawful, and employers have no more freedom to retaliate against those who oppose reverse discrimination than any other form of discrimination.”); Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 850 (D.C. Cir. 2006) (“The protections of Title VII apply to minority and nonminority employees alike.”)
As most of you know, the US Supreme Court has ruled that whites are only protected if they can prove a bunch of extra factors in employment.
Turning to Michigan's hate crime laws, in my local circuit court there has been never been a prefered who has been charged with a hate crime against a non-prefered.
Prof. Volokh, don't forget the basic distinction between degrees of murder and manslaughter? First-degree murder is punished more severely than second-degree because of premeditation, not because of motive. First-degree manslaughter is punished less severely than both because the defendant just "snapped" due to some amount of provocation and probably didn't fully form the intent to kill.
That certain motives might be charged as first-degree murder more often than others reflects that those motives are usually associated with longer amounts of preparation and planning. Killing your wife's paramour is manslaughter because it's done in a sudden, blind rage. Killing someone "because you just don't like them is often second-degree murder" because that dislike usually comes to a head in a heated argument. Killing for financial gain is usually first-degree murder because there was usually some planning involved, often in the form of a mobster killing a rival to take over his bookmaking racket, or a robber planning to assault and steal by force.
Degrees of homicide differ because of premeditation, not motive. You can argue that a hate-crime against Jews will usually involve planning ("Let's kill those dirty Jews!), but that won't always be the case. When it is the case, there's no reason to suspect that the prosecution will have any more difficulty proving premeditation than it does in any other first-degree murder trial.
Still, there may be some value in singling out crimes motivated by hate for a class of persons for special punishment because, if they really are crimes motivated by hate for blacks, Jews, gays, or what-have-you, they wouldn't be committed but for the hate, and hate crime laws might marginally deter them in a way beyond, for example, the way ordinary assault laws deter crimes baswed on such ineradicable motives as blind rage, greed, material interest, or the like.
How do you know?
According to the Michigan State Police, there were 716 hate crimes in 2005. Of the 481 crimes which were otivated by race—194 (about 40%) were anti-white.
The report lists the crimes by reporting agency (and county as well)— yours still doesn't appear?
Oftentimes the only conduct that separates criminal conspiracy from an innocent act is speech.
Well, there's the rub: the act of forming a conspiracy using words is "conduct," not the type of political, religious, or artistic "speech" that the Constitution protects. More generally, words that have legally operative effect are not "speech."
Intent, not motive, is the factor.
1st degree murder is the intent and commission of a pre-meditated murder. Actual motive behind the murder is irrelevant to the charge itself.
2nd degree murder is the intent and commission of a murder without pre-meditation. Again motive has nothing to do with the actual charge, only whether or not the act was pre-planned.
Manslaughter is the murder of another without intent to commit murder.
And so on.
In all cases the crime itself exists despite motive. (Perhaps the argument could be made that motive is so ancillary because the same crime can be committed by differing individuals for wildly varying reasons?)
Motive can be used to establish intent and commission of a crime, yes, but it is never used in isolation. Not until Hate Crime laws anyways, where the motive becomes the crime.
Motive is already used by judges and juries in sentencing anyways, yes? That is the whole point of leeway in sentencing, right?