Imagine five situations:
Stanislav Shmulevich steals a Koran from Pace University, puts it in the toilet, and covers it with feces. He is prosecuted not just for the misdemeanor of damaging a book (which he seems to be guilty of), but for a felony hate crime, because he is acting "because of a belief ... regarding the ... religion ... of a person," there some Muslims with whom he had been having an argument — perhaps he thought that the Muslims were bad because of their Islam, and he wanted to blaspheme against Islam as a way of getting back at them. (Note that he did not choose his victim because of the victim's religion; the victim of the property damage is Pace University.)
Shawn Eichman comes to New York to burn another flag, which he owns; but he burns it "recklessly" in a way that causes over $250 of damage to a bystander's property (which is to say with the awareness that his burning poses) a substantial and unjustifiable risk to such property). He is prosecuted not just for the misdemeanor of recklessly damaging property, but for a felony hate crime, because he is acting "because of a belief ... regarding the ... race, ... national origin, ... or religion ... of a person." Say, for instance, he was burning the flag to protest the lack of enough blacks or Hispanics in various parts of the administration (race), to protest what he sees as various Republican leaders' wrongheaded and excessive religiosity (religion), or to protest what he sees as the misconduct of American troops (assume that New York courts interpret "national origin" to include American citizenship or participation in American institutions).
[UPDATE: On reflection, I realize that it's not clear whether the hate crimes law would cover this, since it requires that one "intentionally commit the acts." It may be that intentionally burning a flag, intentionally doing so because of someone's attributes, and thereby recklessly damaging property is enough; but it may be that the law would apply only to intentionally burning a flag and thereby intentionally damaging property. Assume, though, that the former interpretation is adopted; or, if you prefer to assume that New York courts will adoopt the latter interpretation, then assume that the flagburner took the flag from a government building, or borrowed it from a friend or family member without getting permission to burn it, either of which would make the burning into fully intentional fourth-degree criminal mischief.]
An artist creates a display with a cross covered in human excrement, to protest what he sees as the historical crimes of Christianity (or, if you prefer, the Catholic Church's actions with regard to child molestation by priests). However, he does this on the premises of a public housing project, and refuses to leave when the public housing project authorities tell him to do so. Such failure to leave is normally a third-degree criminal trespass, which is a class B misdemeanor. But the artist is prosecuted for a class A misdemeanor because he committed the acts because of a belief regarding the religion of various Christians or Catholics against whom he is protesting.
A minister comes to the home of a local Episcopal Church leader to remonstrate against him because of the Church's willingness to approve gay bishops. The leader at first grudgingly agrees to let the minister enter and discuss the matter, but eventually demands that the minister leave. The minister refuses to leave, which would normally make him guilty of class A misdemeanor second-degree criminal trespass — but because the minister was motivated by a belief regarding the sexual orientation of the confirmed bishops, the minister is prosecuted for a felony hate crime.
Finally, assume that New York law is revised to cover not just the offenses that are now specified in the hate crime statute, but also any other crime, such as blocking traffic and the like. This means that anyone who acts illegally in the course of a protest motivated by someone's race, religion, religious practice, sexual orientation, and the like — for instance, steps out on the street in a way that blocks traffic, or throws papers on the ground in violation of a littering ordinance — would be eligible for extra punishment because of why he was protesting.
The first scenario is real; the others are hypothetical; but it seems to me that they are hard to distinguish from each other. What should we think about them?
It seems to me that this sort of use of the hate crime statutes is at least very dangerous to free speech, and may well be unconstitutional. Unfortunately, people sometimes act in illegal — often mildly illegal — ways when engaged in protest. It's right to punish them for such actions. But it seems to me that they shouldn't be punished more (potentially much more, as when a misdemeanor is turned into a felony) because they were motivated by disapproval of a religion, a religious practice, a sexual orientation, and the like, or were motivated by a desire to offend people based on these criteria.
Such additional punishment is not, it seems to me, primarily punishment for the crime (since that would have been covered by the unenhanced punishment), or even for the discriminatory selection of a crime's target. Rather, it is punishment for the ideology that motivated the crime. And it will deter even speakers who have that ideology but have no plans to commit any crimes: Even such speakers may face substantial extra punishment if they recklessly — or, if the law is broadened, even grossly negligently — damage some property in the course of their speech (see example 2 above, though you can similarly adapt the other examples), refuse in the heat of the moment to comply with a command to leave property (see examples 3 and 4), or do something that may be misinterpreted as intentional misconduct.
In Wisconsin v. Mitchell (1993), the Court did indeed uphold a law that increased the punishment of criminals who "[i]ntentionally select[ed] the person against whom the crime ... [was] committed ... because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person." And indeed, given that even legal conduct (e.g., firing someone, refusing to rent to someone, and so on) can be made civilly actionable when it is done because of the target's race, religion, and the like, I think criminal conduct can be punished more when the target is selected because of the target's attributes.
But it doesn't necessarily follow that the law should be free to increase the punishment not just because the criminal was discriminating in choice of victims, but because the criminal was hostile to some other person based on that person's religion, religious practice, sexual orientation, or race — which often means that the criminal simply disapproved of some group, even when the target of the crime was not discriminatorily chosen. Nor does it follow that the law should be free to increase the punishment because the criminal was trying to insult some group.
And even if the First Amendment does give the government a free hand in enhancing punishments on such bases — which Mitchell could be read as approving, though I don't think it has to be so read — the Shmulevich case and the other examples are good reasons to resist such laws. The criminal should be punished for committing a crime. But he shouldn't be punished any extra because his intentionally damaging a book, recklessly damaging someone's property, or trespassing was motivated by his hostility to Islam, fundamentalist Christianity, Scientology, or whatever else.
Related Posts (on one page):
I've never understood why hate crimes charges are often tacked on in cases of sexual assault. If a man rapes a woman, sure, he usually does it because she's a woman (qualifying him for a hate crime charge), but only in the sense that he wouldn't rape/have sex with a man. He doesn't do it because he has some hate towards women generally or wants to "keep women down" by raping them.
Perhaps this is somewhat in line with your points above--except, of course, there's no constitutional right to rape anyone. So maybe it's more a general point against the illogical way hate crime charges are applied. I dunno. Just a rambling thought.
/the obvious
Agreed and in the first case if the offender was a student, expel him.
More to the point, though, I'm guessing hate crime charges in sexual assault more often have to do with sexual orientation or with race than with gender.
Besides, in recent memory, most of the burned crosses seem to have been the result of youthful stupidity, rather than real hate crimes.
how do you draw this distinction? i mean, burned crosses still only mean one thing, right? kids don't burn crosses today because it's "fun," right?
EV, how about assuming that Shmulevich is convicted and his defense counsel has asked you to help with an appeal. How would you advise going about it? Attack the "hate crimes" statute on the basis of ambiguity? (Some with law degrees are struggling to understand what the law does and does not cover. Is that a argument for "ambiguity" and insufficient notice?) Attack the law as otherwise defective on constitutional grounds? Challenge the construction of the statute as written?
EV, if you would outline how you would approach an appeal, then we would have the professor's model answer to inform us. I for one would find that very helpful, more helpful than scattered answers to scattered questions about different issues raised by the law and the facts of this particular case.
Thanks for your role in fostering these informative discussions.
Wait, would a content-based, but viewpoint neutral, ban on destroying all reglious texts be constitutional or would the First Amendment have a problem with that? Because if so, then I might have to rethink my post.
The problem is exactly what you stated. There are no "burning crosses." None of these hypotheticals fit what we would think of as a hate crime. Defecating on the Koran is what most people would think of as a hate crime. And yet, EV, and others make a valid point (though arguable) that the hypos fit the statute better than the Koran incident.
If you give DA's a tool, they're going to use it. That's why I think hate crimes laws are bad, they're impossible to define with specificity.
Moreover, I don't think EV is fairly characterizing hate crimes...they are not crimes accidentally committed while engaging in protest. They usually have nothing to do with protest. They are crimes fueled by hatred for a certain class. Does not this hatred show an increased mens rea? Is not a book damager with hate in his heart more culpable than the book damager who is stealing the Qur'an for a essay he is writing?
If the crime component and the speech component are inseparable, then the speech is unprotected and the crime can be considered a hate crime. For example, you can't beat a black man in order to make a point.
If the crime component is merely incidental to the speech component, and not integral to it, then the speech is protected and cannot justify a harsher prosecution. Putting Korans in toilets and pooping on them isn't inherently illegal; the fact that it's a stolen Koran isn't an aspect of the point being made by the act.
Like all lines, especially speech lines, it's not exact. But I think it preserves the ability to take motive into account when it's relevant, while minimally chilling speech. It should be pretty obvious to people whether the speech itself is inherently illegal.
As long as have church-arson and domestic violence cases where the prosecution has to prove that that the church sold goods that crossed state lines (or the guy beat his wife with a stick that crossed state lines) because, technically, it's a commerce statute and the federal government cannot directly prohibit church burning or personal violence.
If we're willing to treat powers expansively and limits this narrowly, it would seem a very logical step to have blasphemy cases where the government similarly has to prove some technicality that puts the case in its jurisdiction, but everyone understands that it's a technicallity, one that every now and then causes the government to lose a case, but doesn't result in anyone taking the idea that the government can't prohibit the conduct directly very seriously or as something other than a minor annoyance.
What's the difference?
What would anybody bet, if the info could be recovered, that the slippery slope was mentioned when this law was first proposed, and the warnings dismissed with the usual disgusting glottal noise which substitutes for argument?
I forgot. Jews and Christians don't blow stuff up.
There's that.
If someone were to spray-paint graffiti on the Brooklyn bridge, this would be a misdemeanor. If the graffiti said "Kill all New Yorkers", it would not be a hate crime (as being a New Yorker would not qualify a person as being a protected class by the Hate Crimes statute). If the graffiti said "Kill all Jews", it could be charged as a hate crime.
This would be because of subsection (b) of the statute: the target of the above crime was not selected on the basis of religion (the target would be the City of New York and/or whoever manages the Brooklyn bridge); however, it could be reasonably inferred that the crime (graffiti) was intentionally committed in whole or in substantial part because of a belief or perception regarding the religion of the target (as Jews would be a constituent group of the City of New York) regardless of whether the belief or perception is correct. (This also means that "Kill all Cavemen" would not be a hate crime as Cavemen could not reasonably be considered to be a constituent group of the City of New York.)
In the Shmulevich case, the distinction made is that by committing criminal mischief involving a Koran, the offense was committed because of a belief or perception of Pace University (i.e. even though it was Pace's Koran(s), the belief was that by targeting Pace, the intended victims - Muslim students - could thus be offended against.)
In hypothetical 2, you would have to show somehow that Eichman's act of flag burning was intended to single out a specific ethnic group (for example, if he were to burn the Puerto Rican flag in City Hall while criticizing Rep. Nydia Vasquez.)
In hypothetical 3, you would have to show that the artist, by choosing a specific housing project, held a reasonable belief - mistaken or not - that Christians/Catholics could be associated with that housing project. (It would probably not be sufficient to say that "some members" of the project happened to be Christian/Catholic to consider it a hate crime.)
In hypothetical 4, subsection (b) of the NY Hate Crimes statute would be difficult to apply (as the offense was clearly committed against the Church leader and not a third party as the case with hypotheticals 1-3.) As per subsection (a), you would have to show that the trespass was committed on the basis of the Church leader's perceived or actual sexual orientation and not just on the basis of his or her political or religious views about sexual orientation.
Hypothetical 5 would thus have to be considered as per the above scenarios. Thus, under the new law, tossing fliers in the street as part of an anti-affirmative action protest would not necessarily be a hate crime (it wouldn't ordinarily although it could be if the protest was specifically held in Crown Heights and if it could be shown that the littering was committed due to a perception of the race of Crown Heights residents.)
So while I can see arguing that hate crime laws such as New York's subsection (b) could be seen as a slippery slope, I don't see in this case why the Shmulevich case is the figurative banana peel.
Or am I missing something? Are you arguing that subsection (b) is unconstitutional based on Wisconsin v. Mitchell (where only subsection (a) would pass constitutional muster?) If that's the case, does that mean that "Kill all Jews" on the wall of a Synagogue would be a hate crime but "Kill all Jews" on the Brooklyn bridge would not be?
Let's say the 'offender' did hate Muslims, but instead of a book in a toilet, he let out his feelings by presenting a paper in a class (in, say, comparative religion, international relations or sensitivity training) in which he alleged that Mohammad was a child molester (correctly sourced to the writings of a mainstream scholar, eg, Ibn Warriq).
I predict that Muslim students would be equally offended. Would that be a hate crime? If not, should be be expelled because some students were upset?
Note that my rules are intended to predict the behavior of university administrators. One would need a different set of rules to predict the behavior of policemen.
Wm13 was not stating the law, as you did. He was describing how to predict the reactions of college and university administrators.
It is quite easy to refer to extreme instances of what could be questionably unconstitutional conduct that may inhibit free speech, yet you have given no definite example above in which the law has been violated. Any decent lawyer could get these charges thrown out with ease. Furthermore, you seem to disregard the nature of a hate crime, in that the object of the crime is not solely and specifically harm upon the victim, but to silence the victim for his/her membership in an unpopular class. In fact, there is a strong basis for arguing that the recognition of hate crime statutes is due to the act of violating the victim's free speech rights, namely, the right to identify with a particular group or class of individuals.
For example, let me come up with an "example" where, for instance, a couple of guys go to a gay bar with the intent to "send a message" to the "queers" in the community that their kind is "not welcome." They pick their victim, who is playing pool at the bar, ask him to come home with them, and later proceed to slash his throat, bludgeon his body with an ax handle, set him on top of a pile of tires, and then light his corpse on fire. Well, that "scenario" actually happened to Billy Jack Gaither of Sylacauga, Alabama.
The purpose of the hate crime is not only to attack the victim, but to intimidate everyone else, who like the victim, is a member of an unpopular group. The hate crime is not only meant to silence the victim, but to silence the group and to rob them of their identity. It is meant to make them live their lives in fear and to "know their place" by using the victim as the example of what could and will happen to them. So please, do not preach to me about some random instance where an individual has been charged with a hate crime, prior to trial, where that charge will likely get thrown out. Please tell me you have something more substantial than your perceived slippery slope argument of impending doom.
What is more frightening is how little distance there is between societal acceptance of the vigorous enforcement of hate crimes laws and the situation that existed in several other countries recently where one did not want to perceived as being insufficiently enthusiastic about certain ideas. Would YOU be the first person to stop clapping and sit down after a speech by "Uncle Jo" or "Uncle Saddam"?
Wake up people. If thought can be a crime no one is safe. If they can lock you up for what you think today, they can lock you up tomorrow for what they said you thought, regardless of whether you had the forbidden thought or not!!
One last thought - when was the last time you heard about action (or speech or thought) taken against the Christian religion to be a "hate crime"? Think it's likely to happen?
Isn't this exactly what's happening by prosecuting Schmulevich? The Muslims were obviously not intimidated, but anyone else contemplating a protest of the Koran will be.
By turning a misdemeanor into a felony based on what was in Schmulevich's mind, the state is prosecuting his non-state-sanctioned thoughts. In this '1984' world, all thoughts are equal but some thoughts are more equal than others. (To paraphrase another Orwell classic).
And it wouldn't be an issue if the religion on question were other than Muslim, no matter the pressure brought, or not brought, on Pace.
So pointing at Muslims seems reasonable.
Political and moral (or, in my opinion, immoral) pressure has been brought to coopt or coerce the state power to persecute people who offend Muslim theological beliefs about worshipping Mohammad.
It's the religion, stupid.
Whether you agree with prosecuting hate crimes or not, let's not let this discussion devolve into Orwellian fears about prosecuting crimes consisting of nothing more than opinion. *ALMOST ALL* crimes require proof of the defendant's mental state, i.e., his intentions. To hear some of the commenters describe it, this would be a "thought" crime. But it's not. Proof that the person intended an outcome is just as ethereal as proof that a hate crime was motivated by a belief about someone else. Nobody can directly discover another person's intent. But sometimes the inference is so strong that a jury cannot help but find that a defendant's beliefs or intent were made obvious by the conduct. If that's the case here, then the defendant is in trouble. But if the jury finds that his "hateful" intent was not clearly demonstrated beyond a reasonable doubt, then they'll acquit of the enhanced crime.
This is, obviously, an affront to the Muslim community. But a crime? Hate crimes added on to real crimes always remind me of the time A insulted B at B’s birthday party &C concentrated on it being B’s birthday party in chastising A. And how the left decried the absence of Hate Crime laws in TX after Jasper, tho the three rotters had been convicted of murder!
And, M552 this morning: how did or would adding a “hate Crime” charge affect the prosecution of the murderers you describe? For that matter, they may’ve stolen the vehicle in which they transported the victim, lit the fire in an area where it was illegal to do so, destroyed property, &the driver may’ve been intoxicated while driving. If I were the prosecutor, I’d stay focused on the murder charge.
As for this stupid Pace effrontery, I agree with the commenter called “somebody” who noted at 6:37 PM last nite:
“And do we really want the government to define something as abstract [as this] as a hate crime? Please. Just punish them for violating someone else's life and/or property.”
And all this can be handled through the school process.
And re Hypothetical 3, I fail to see any prosecutions for hate crimes when the Catholic Religion is being mocked. If this had been a Bible or if a statue had been toppled outside a Catholic Church, methinks that outside of possibly making the miscreants pay some money to physically repair the damage, it would’ve been ignored altogether. We’re talking PC here. WM at 10:36 last night has got the PC stuff spot on.
And to answer another hypothetical (since this College incident went beyond name calling): no effrontery through words should be facilely equated to physical violence, though we should be aware that threats are not just "words, mere words".
Something sinister is going on.
By the way, if you intentionally "fail" to return the library book, that's stealing. It is not usually prosecuted as such because it's hard to rebut the defendant's testimony when he says he just plain forgot. But when people rent cars and then "fail" to return them a couple of days after the contract runs out... you can bet they're prosecuted for stealing.
Yikes, I hope that was a parody. I don't know about you, but I find random crimes just as terrifying. Shall we charge serial killers with hate crimes? I think it's safe to say that they intimidate their communities. Of course, prosecuting them for multiple homicides and sentencing them to death just isn't enough of a deterrent.
If there were a string of robberies or murders in my community, I'd be pretty damn scared. Should the perp be charged with a hate crime?
But how is accidentally dropping a book in the toilet (and perhaps being too squeamish to fish it out) different, in law, from accidentally dropping it into a storm drain?
If a prosecutor has enough time on his hands to prosecute this 'crime,' then his office should be shut down as being unneeded.
Legal trampolining is no help here. Something is going on. Book theft is not it.
You've got it. Spot on.
Wish I'd have said that.
I will in the future!
Correct. Speculation as to why?
Next time someone abuses the Bible I fully expect charges to be brought.
See Elaine Denholtz' 'The Zaddik,' in which the state action was not prosecuting when it should have, instead of prosecuting when it shouldn't have.
Muslims are a lot more dangerous than Lubavitchers, though.
Another scenario: someone vandalizes some Torahs in a synagogue, covering them in spray-painted swatiskas. Is the synagogue as organizational entity the only victim, in so far as the organization can prove they own the damaged Torahs? Or are the members of the synagogue, or the synagogue as association, also victims?
No.
They're not Muslims.
This is not a matter of law, as should be apparent by now.
Hypotheticals referring to law may be fun, but they don't apply here and they won't apply in the future. Speaking of the real world, I mean, not legal theorizing.