Point/counterpoint on hate-crime legislation.

Two of my friends have a point/counterpoint pair of columns in today’s Richmond Times-Dispatch. Dyana Mason argues for hate-crime legislation for attacks based on sexual orientation, while Rick Sincere argues precisely the opposite point. I actually agree with both of them, oddly. I think Rick is right — hate-crime legislation doesn’t make much sense. The prospect of somebody attacking somebody for no reason at all is far more troubling than somebody who does it for a reason of prejudice. But I think that Dyana is right, too — the fact is that we have hate-crime legislation, and we should include sexual orientation in it so long as we have it.

Published by Waldo Jaquith

Waldo Jaquith (JAKE-with) is an open government technologist who lives near Char­lottes­­ville, VA, USA. more »

23 replies on “Point/counterpoint on hate-crime legislation.”

  1. So…. it doesn’t bother you that Rick is being shady about the underlying legal theory of hate crimes legislation? Virtually every time I see this subject discussed, those arguing against it simply knock down the straw man of “criminalizing thought.” His arguments about federalism are perfectly reasonable of course.

    But the central issue with hate crimes is community damage: crimes that are shown to “send a message” to some group in theory create a great deal of additional social harm. Simply ignoring that and pretending its about something else isn’t very honest.

    And of course, if Sincere believed that intent and state of mind aren’t relevant to court cases, he’s welcome to call for the repeal of laws against terrorism (after all, murder and property damage are already crimes: why must we “criminalize thought” by delving into the criminal’s intentions to sow fear and chaos?) or of course to eliminate the various different crimes for murder/manslaughter, since the distinctions there all rest on thought as well.

  2. crimes that are shown to “send a message” to some group in theory create a great deal of additional social harm.

    And that’s already an additional crime — threatening a person or a group of people with physical harm is assault. As well it should be.

    I’m reminded of cross-burning laws. There’s just no need for them, because it’s already a crime to threaten people.

    if Sincere believed that intent and state of mind aren’t relevant to court cases, he’s welcome to call for the repeal of laws against terrorism

    Well, I’ll let Rick speak for himself, but I will speculate that Rick may well agree that such laws don’t make sense.

  3. “eliminate the various different crimes for murder/manslaughter, since the distinctions there all rest on thought as well.”

    The distinction between murder and manslaughter is the element of malice. If malice exists in the perpetrator’s mind, then it’s murder. Hate crime laws address the reason for the malice (or other mens rea) rather than its existence. So, yes, the criminal’s mind is at issue in both instances, but completely different aspects of intent are involved.

    Anti-terrorism laws are also distinguishable from hate crimes, as they define certain crimes as being against society rather than against individuals. Sure, you can argue that if a drunk redneck beats up a guy outside a gay bar, he’s really attacking homosexuals as a community, trying to destroy that segment of society. But that’s pretty weak. A typical “hate” crime is an attack on individual people, whereas an act of terrorism, as described in the state code, is to “intimidate the civilian population at large.” (§ 18.2-46.4)

    And if a potential “hate-based” criminal’s malice is derived from wanting to inflict “community damage,” there’s nothing stopping a competent prosecutor from using the terrorism statute.

    I agree with Waldo on this one. We shouldn’t have hate crime laws, but as long as we do, sexual orientation ought to be in the protected class. Hate crime legislation is a product of political correctness run amok. It’s mind-numbingly dumb from a legal standpoint, but it sure makes people feel good to punish “hate.”

    My question is, how do we choose which groups get “extra protection” and which ones don’t? More importantly, how do you reconcile that with the Equal Protection guaranteed by the 14th Amendment?

  4. From Rick Sincere’s column:

    Passing this bill would also be wrong because it suggests that crimes against some people are worse than crimes against others. Hate-crime laws set up certain privileged categories of people, defined by the groups to which they belong, and offers them unequal protection under the law.

    This is where I agree with Mr. Sincere. Hate crime laws are not uniformly enforced. Certain groups are by their minority status automatically exempted from prosecution under “hate crime laws”. (If that is not a fact it is enough of a public perception to give it weight.) Which is reason enough in my book to toss hate crime laws.

  5. The distinction between murder and manslaughter is the element of malice. If malice exists in the perpetrator’s mind, then it’s murder. Hate crime laws address the reason for the malice (or other mens rea) rather than its existence. So, yes, the criminal’s mind is at issue in both instances, but completely different aspects of intent are involved.

    You started off well enough (i.e., the criminal’s state of mind is already a factor, regardless of hate crimes laws), but I think you’re being misleading in stating that completely different aspects of intent are involved. I could be wrong, but I’m reading that to imply that since they’re different, hate crimes legislation somehow breaks new ground in intent. And it really doesn’t. There are all sorts of crimes in which the nature and motivation of the intent is at issue (conspiracy, recklessness, etc.).

    I’m also ignoring (not to my credit, to be sure) the federalism issue, but I think Plunge is quite justified in leveling an accusation of shadiness on Sincere’s part. I have a hard time believing that anyone who has given serious thought to the matter of criminal punishment would imply that criminal law hasn’t previously “punished thought.”

    Where’s Catzmaw?

  6. Certain groups are by their minority status automatically exempted from prosecution under “hate crime laws”.

    Oh, do explain.

  7. By “different aspects of intent” I mean that the differences in homicide crimes lie in the levels of intent, while hate crimes deal with the reason for that intent.

    For example, John (a Yankees fan) premeditates, with malice aforethought, to kill Mark (a Red Sox fan), because John is still angry about the 2004 ALCS. If he carries it out, John is guilty of murder. Compare to — John (a Hitler worshipping skin head) premeditates, with malice aforethought, to kill Mark (a Jewish man), because he hates Jews.

    In both instances, John possesses the requisite malice to be guilty of murder. But in the second, it’s a hate crime. Whether dealing with the existence of malice or John’s reasons for having it, we’re discussing the issue of John’s intent, but completely different elements of it. That’s what I meant.

    Why should John receive a harsher punishment for the second murder? It seems to me that he gets a harsher punishment for being a bigot.

  8. I also think I object to the hate label altogether.

    I think a person is hating either themselves or their victim, but murder is murder; a person isn’t any more or less dead because the principals are in different so-called ‘protected group’.

    There is hate in every crime, not only one where goods, services or lives are taken.

    I guess I would prefer the special circumstance over separate legislation.

  9. I occasionally write a blog entry about a topic that I just don’t understand, or explaining how I have two beliefs that are diametrically opposed, and yet there they are. This may well fall into both camps because, Mark, I’m inclined to agree that judges ought to have the leeway to increase the punishment when circumstances warrant, taking into consideration whether the crime was committed because of a desire to lash out against a particular group of people in order to threaten the group as a whole.

    Yet somehow it would be bad to codify this?

    Yeah, I don’t understand, either. :)

  10. Waldo, I am glad you realized the foolishness of hate crime legislation. However, I am puzzled as to why you want to add sexual orientation to such a dumb idea. How does compounding foolishness improve things? Two wrongs don’t make a right, but four or five do. If we add enough protected classes does the absurdity finally become apparent?

    Let’s see. I am a balding old man. Let’s add that. Then there is women with big feet. Fat people. Skinny people. Tattoo people. People with no tattoos. Women with big hair. Guys with flat feet. Fellows with lots of nose and ear hair. Little old ladies. Ugly people……

    Still, there is a problem. For example, if someone beats up someone, for their money, how do we know for certain that the mugger wanted to beat that particular person up for their money or because of their protected class. Don’t we have to have a mind reader? What about reasonable doubt?

    Hmmm. I think begin to understand your solution. We will make people who want to keep their money a protected class too.

  11. However, I am puzzled as to why you want to add sexual orientation to such a dumb idea. How does compounding foolishness improve things?

    Let’s pretend that we both agree that it’s foolish that a university’s policies were written to accept both blacks and whites. And then along comes an American Indian. She is told that, oddly, she may not be permitted to enter the university, because she’s neither black nor white. A majority of the Board of Visitors feels strongly that the policy should be kept in place, and all members agree that the girl shouldn’t be barred from admission.

    Do you a) bar her from admission because you can’t get a majority to agree to drop the foolish policy or b) agree that American Indian should be added to the list and decide that dropping the policy will be something that you’ll have to work on long-term?

  12. Waldo, your question poses a false dilemma. Discrimination in and of itself is not wrong. In order to obtain the best students universities must discriminate, and in a competitive environment, universities will discriminate to obtain the best students.

    Problems arise when the government actively supports a policy of irrational discrimination. Then you run into these screwy situations where everyone is competing to be part of some protected class. Then and only then is your American Indian complaining she wants to be added to that list of protected classes.

    Consider what Martin Luther King said. “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” Can a bureaucracy quantify character? No, of course not. Yet our political leaders have promised us “fairness”. So they meticulously categorize us and count all the things we are suppose to ignore.

    Don’t politicians make promises they cannot keep? This “fairness” you seek is one such promise. This “fairness” is worse than the problem it purports to solve. It device used to divide us. It is not justice; justice is blind. Justice ignores that which has no relevance.

  13. “By “different aspects of intent” I mean that the differences in homicide crimes lie in the levels of intent, while hate crimes deal with the reason for that intent.”

    Again, this is just the same lazy straw man. The intent IS at question in hate crime laws, because the intent that is required to establish is the intent to “send a message” as it were.

  14. Waldo, your question poses a false dilemma.

    Of course it does — I made it up. That’s why I started with “let’s pretend.” I take by your response that you won’t be answering my question.

  15. Regardless of whether you are for or against hate-crime laws, I can’t figure out how one can separate one’s support (or lack thereof) of hate crime laws from terrorism-specific laws, as hate crime laws are specifically targeted at terrorism towards minority groups.

    That is not to say that you can’t oppose the implementation of one and not the other, but the basic question is, “are there greater damages when a crime is perpetrated in order to cause fear amongst a greater populace, and if so, does the court have the ability to reflect this in its punishments?” If the answer to both is yes, then terrorism, including hate-crimes, should carry stiffer penalties.

    I’m not personally sure about the answer to the second half of the question, myself.

  16. “…as hate crime laws are specifically targeted at terrorism toward minority groups.”

    If that were true, there’d be no need for hate crime laws, since they would be totally redundant. Anti-terrorism laws already target terrorism directed at groups.

    Virginia’s hate crime law specifically defines “hate crime” as a criminal act committed against a “person” with the intent to instill fear or to intimidate the “individual” — there is no mention anywhere in the law about causing fear in a group or a populace. Nor should there be. After all, we’ve already got the terrorism law for that, right?

    What Virginia’s hate crime law does is make criminal acts of intimidation against certain types of people worse crimes than identical acts perpetrated against people unfortunate enough to not be a member of the protected class.

    How can anyone reconcile this with the Equal Protection Clause?

  17. I’m not talking about the letter of the law here (See the sentence starting with “That is not to say that you can’t oppose the implementation of one and not the other, but…”), but rather the intent of such laws. If you believe all hate crimes laws are intended only to apply to the individual, then I totally agree that such laws are bad and redundant. However, it’s my belief that these laws are written poorly so as to be easier to prosecute because you don’t have to show that someone had intended to scare an entire populace. Hate crimes legislation is a direct answer to lynchings of black people and homosexuals, and we’re talking about forms of violence that are fundamentally terrorism, intended to drive these people into subservience and hiding.

    Of course, at the end of the day, I’d rather not have separate hate crimes and terrorism laws, because they’re both dealing with the same problem, and because I have many problems with the enumeration of protected groups, including the difficulty of getting groups added or removed as social problems change.

    On an entirely seperate note, it’s quite nice to see “I. Publius” having interesting things to contribute, instead of the trolling that I was used to from that name. :)

  18. On an entirely seperate note, it’s quite nice to see “I. Publius” having interesting things to contribute, instead of the trolling that I was used to from that name. :)

    Amen.

  19. Regardless of what the terrorism laws specify, does ‘hate crime’ rise to the ‘terrorism’ level as defined in this day and age? Terrorism has a much different connotation than lynching or gay bashing or sexual intimidation/harassment.

    Since terrorism has been largely been redefined in the last 6 + years, is there a place for hate crime in them? When does terrorism either rise or sink to the hate crime level? Are we using the wrong terminology altogether?

    Will the terrorism statutes really cover a Sikh man or a Lebanese woman if they are being harassed for being a ‘terrorist’?

    I think we need to get the definitions straight, both in code and in practice, and then when that is done, we make changes accordingly.

  20. There is a lot of difference between terrorism of one or a few people and the terrorism of an entire population or group. I do agree that specifying those groups is and will be the hardest part about all this.

  21. Waldo – I did answer your question, but I did not accept a limited universe of answers. Based upon your response to my answer, it seems to me that it might be useful to define the expression “false dilemma”. Here is something from Wikipedia.

    http://en.wikipedia.org/wiki/False_dilemma
    “The formal fallacy of false dilemma—also known as false choice, false dichotomy, falsified dilemma, fallacy of the excluded middle, black and white thinking, false correlative, either/or fallacy, and bifurcation—involves a situation in which two alternative statements are held to be the only possible options, when in reality there exist one or more other options which have not been considered. The fallacy relies on a misuse of the or operator.”

    Note that it is possible to offer more than two choices and still pose a false dilemma.

    The place where I most often hear a false dilemma posed is on radio talk shows. When an inept host wants to get rid of caller he or she will throw out a question like this: “Answer yes or no. Do you believe we have a right to national health care?” If you say no, does that mean that you think the government should not even help people in dire emergencies? If you say yes, how much are you willing to spend? Where does one draw the line between right and privilege?

    Usually the caller cannot respond to such a question with a simple yes or no without feeling like a fool. So the caler tries to explain. This gives the talk show host an excuse to put the caller in his place and disconnect the call.

    My favorite example of false dilemma is an old joke. Imagine surprising someone with this question: “Are you still beating your wife?” Suffice to say that a simple yes or no will not quite cut the mustard.

    Anyway, here is a quote I think we would all do well to consider.

    The moment we want to believe something, we suddenly see all the arguments for it, and become blind to the arguments against it.
    George Bernard Shaw
    Irish dramatist & socialist (1856 – 1950)

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