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On Hate Crimes, Help Me Out

President Obama having signed into law a federal hate crimes statute, a two-week-old post at Crooked Timber has been brought to my recollection, not on account of any especial excellence, but for reason of the perplexity it occasioned, then and now.

John Holbo, criticizing John Boehner, argued as follows:


There is, I think, an even more basic problem, which is theoretically interesting, which I would certainly like to see used to swat down Boehner-style arguments, and which I’ve never actually seen anyone make (but probably I just missed it). Practically all crime is ‘thought crime’ in the good ol’ common law sense of the Latin phrase actus non facit reum nisi mens sit rea – ‘the act does not make guilt unless the mind be guilty.’ If we were to take a strict liability approach to all violent crime we would be obliged to place wrongful death on a par with premeditated murder. (After all, it’s not as though the lives of those killed accidentally are worth less.)

And this is where I'd like to request the assistance of my co-bloggers and commentators. I never made it to graduate school, for reason of some familial matters not entirely happy, and in consequence I gravely fear that there is some cabalistic point of logic here that eludes my intellect. Hence, I beg the assistance of the professional philosophers in the W4 blog community, that this matter may be settled in my mind.

If all crime, for reason of mens rea and the necessity of establishing intent, is - under one aspect - thought crime, and this new legislation, by intention and execution, will establish certain mental states as exacerbating factors in criminal cases, how then is the conservative critique, however ineptly articulated it may be by any one conservative, vitiated by Holbo's criticism? How, in other words, is this not a case of, "some thought crimes are more criminal than others?"

What am I missing?

Comments (118)

Mr. Martin, I would like to help you out, but I never even made it to college and I have to go finish off my minnestrone soup. I'll leave it to the professionals and check in later for the intellectual exercise.

Good luck.

I think there is a confusion of motive as a justification and motive as motivation. (I'm sure someone smarter than me can phrase this better.)

We look at motive in charging crimes in cases all the time. e.g. If I side-swipe a car because I am mad at the driver I can be charged with a crime like assault, while if I side-swipe a car to avoid a pedestrian that jumped in front of my car, the case is much different.

The problem with hate-crime legislation is that it just doesn't look at intent with regards to malice as the above example shows, but it judges why you do a malicious act and makes more strong a judgement provided the victim is in a protected class. I mean, why should you be punished more if you were to attack me because I am a Christian vs. attacking me because you don't like my red sweater? Your intent is to cause me harm for no justifiable reason, so why offer special protection to some people over others?

I could ramble on longer, but it seems to me that the quote in the section above misunderstands specific distinctions in how law (should) work.

You're not missing anything, Maximos.

And don't sweat the missing PhD. Take it from me: it's a waste of perfectly good sheep-skin.

I take it that Holbo reasons as follows:

(1) We distinguish crimes from non-crimes based on motives (e.g., being thrown by a hurricane into you vs. tackling you).
(2) We distinguish certain kinds of crimes as more serious than other kinds of crimes based on motives (e.g., negligent homicide is less serious than premeditated murder because negligent homicide results from the absence of a mental state that one should have, whereas premeditated murder means you have a mental state that you shouldn't have) or consequences (e.g., attempted murder and first-degree murder have the same motive, but because the latter has a worse consequence than the former, it's not as serious a crime).

Holbo seems to move from the fact of (1) and (2) to the conclusion that there is nothing special about hate crimes, because we distinguish certain crimes from others based on their motives and consequences all the time.

It seems to me that the only conservative critique this vitiates is the critique that hate crime laws are unacceptable because they criminalize certain kinds of motives. If a conservative had that view, then he would indeed be susceptible to Holbo's objection. But if a conservative merely said that hate crime laws are unacceptable because there is nothing worse about the motive "black people should be killed" than there is about the motive "people who have stuff I want should be killed", that seems to me that it wouldn't be susceptible to Holbo's critique.

How, in other words, is this not a case of, "some thought crimes are more criminal than others?"

To determine guilt for a violent crime without fully considering the intent of the perpetrator(s) to terrorize a related group is to treat the victim(s) unequally.

On first read and at face value, I actually thought Holbo's critique (the part excerpted) was actually directed against someone in favor of the hate crimes bill. I mean sure, practically every crime is hate crime, so why make a special federal statute against certain types of "hate"? But I guess what Holbo is getting at is a fairly narrow critique of the (perhaps heavily caricatured) argument against the bill: we ought not make up a category of "thought crimes." Of course an offender's mental state can increase or mitigate his charges or his punishment; this is enshrined in common law, a prosecutor's discretion, as well as a judge's leeway in sentencing. And no good conservative would argue to eliminate these. But it is this very fact vitiates the motivation for Federal hate crimes bill. And it seems that is the solidest reason to oppose it. (That, and the whole double jeopardy issue...)

There is, of course, greater relative evil in the motive "black people should be killed" than in "people who have stuff I want" (tho' they are both desperately wicked), but we don't need a Federal hate crimes bill because these disparate motives may be considered by those, on the state level, who prosecute, judge, and sentence any particular offender.

My $0.02.

The argument that such crimes are "thought crimes" is a very bad one, unless one wishes to make all crimes strict liability crimes (and, as noted above, this would put negligent homicide on par with premeditated murder).

Virtually all serious crimes have both a mens rea (mental element) and an actus reus (physical action element) component--a common exception being statutory rape.

It's not a thought crime so much as it is a crime with a mental component, as is any other serious crime.

Part of the reason for punishing people differently is that some states of mind are judged to be more heinous than others. A man who finds his wife in bed with another man and kills that man has a less evil state of mind than a man that kills because someone insulted him.

The reason a "hate crime" is more serious than a crime where someone "took your stuff" is because, in general, a mental state where one hates a whole class of people deserves greater condemnation than a mental state where one just hates one particular person.

Holbo's mistake -- to judge just from the passage Maximos quotes (maybe he qualifies things in the longer post) -- is in assuming that it is the thought that is punished. It is not. It is the actual act that is punished -- otherwise the law would punish people for saying things like "I'd really, sincerely like to murder Fred, but I won't, simply because I can't get away with it." And it doesn't punish that.

The motive is relevant only because it determines what kind of act was performed. Plunging a knife into a belly could be an act of murder, or it could be a life-saving act of surgery. The difference lies in the motive, but we still call only the act itself, and not just the motive, either an act of a murder or an act of surgery. A motive is a necessary condition, but not a sufficient one. And even when someone only attempts murder, it is the attempt -- itself a kind of act -- that is punished, not the mere having of a motive. If someone says "I formed the motive of murdering someone today, but I never did anything about it, nor will I" the cops aren't going to arrest him.

So, contrary to Bobcat, I don't think Holbo's point is effective even against the critique in question. But as Bobcat says, that's not the only problem with it.

Consider also this: To have the intention "I want to kill this person" suffices for an act to count as murder. If you go on to say "That's not the only important thing going on in the killer's mind -- we need to punish him extra for the fact that it is Encyclopedia salesmen specifically that he wanted to kill," then you are quite obviously committed to the view that the murders of Encycopedia salesmen should be treated more harshly than the murders of other people. And it is hard to see why you'd have such a view unless you wanted to discourage people from hating Encyclopedia salesmen -- that is, unles you wanted to discourge certain thoughts, not just actions. (If murderous actions per se were all one cared about, why not just be happy with the existing laws against murder?)

Plug in "homosexuals" for "Encyclopedia salesmen," and Boehner's point seems more or less right, even if he didn't state it in such a way as to sidestep every pedantic objection an uncharitable reader might want to raise against it.

And surely the very expression "hate crime" is a dead giveaway. No one calls a robbery a "greed crime"; as far as the law is concerned, you can be as greedy as you like, so long as you don't steal, murder, etc. in order to satisfy your greed. And if the expression "greed crime" did become common, and a motive of greed was given extra penalties, it would be obvious that the point of it was to try to discourage certain habits of thought and feeling, not just overt acts. "Hate crime" talk is no different.

I'm writing this on a text-based browser, so no spell-checker...the word,"thought-crime" is being used in a subtly equivocal manner by Holbo. A thought-crime may be either a THOUGHT-crime or a thought-Crime. These are not the same things, so, while the degree of engagement and understanding plays a part in asigning culpability in a crime, since it is an intensifierof the act, a thought cannot, by itself, be intensified. The projected actions of a thought may be intensified, but the thought itself, cannot. Thus, the two stand in slightly overlapping, but generally different catagories.

The Chicken

BTW, in light of the other comments, my point is not intended to show that "hate crime" laws are a bad idea -- though for record I think they are an absolutely atrocious idea. The point is that even people who think they are a good idea should own up to the fact that it is patterns of thought that they are trying to change, not just overt acts. And even if you say "But we're only concerned about the patterns of thought because of the acts they might lead to," fine -- the point remains, you are, for whatever reason, trying to use the law to discourage certain thoughts.

Compare: Suppose conservatives introduced a category called "lust crime," which they applied to any crime (a theft, murder, or whatever) whose intent was to get money to buy pornography, facilitate an illicit affair, or in some other way further the fulfilment of some immoral sexual desire. And suppose they said "We're not trying to punish thoughts -- just overt acts that are connected with sexual immorality!" Liberals would howl, and claim, quit rightly, that it was just obvious that the introduction of such a category into law was meant to discourage lustful thoughts.

"But that would be a stupid law, and hate crime laws are not!" But whether it would be stupid or not is irrelevant; the point is that it would clearly be intended as a use of the law to discourage certain kinds of thoughts. Same with "hate crimes" legislation. If someone wants to defend such legislation, he should at least own up to the nature of what he's defending.

Took a little paging through my old logic text book, but it seems he's commiting "the fallacy of equivocation."
It

...depends on the fact that a word of phrase is used, either explicitly or implicitly, in two different senses in the argument. Such arguments are either invalid or have a false premise, and in either case they are unsound. Examples:
Some triangles are obtuse. Whoever is obtuse is ignorant. Therefore, some triangles are ignorant.

pg 152, "A Concise Introduction To Logic" 9th edition

The phrase "thought crime" means punishing a crime to a greater degree because of the direction of the thoughts which caused the criminal action, say "because they are wearing a hijab" as opposed to "because they are wearing red," or "because he kissed his boyfriend" instead of "because he kissed his girlfriend; Mens Rea, on the other hand, relates to punishing a crime to a greater degree based on the will to commit a crime-- "I ran over my ex with my car, as a form of murder, then tried to cover up the death" as opposed to "I didn't see the person jay-walking in a black hoodie and sweatpants at five in the morning, hit them, and then tried to cover up the death."

Mr. Feser,

"Holbo's mistake -- to judge just from the passage Maximos quotes (maybe he qualifies things in the longer post) -- is in assuming that it is the thought that is punished. It is not. It is the actual act that is punished."

This is an oversimplification. Mens rea goes not only to motive but to the blameworthiness of the state of mind. This is why we distinguish between second and first degree murder, why "heat of passion" is a defense at common law and extreme emotional disturbance is a defense under the Model Penal Code, why possession with intent to sell is a greater offense than possession and so on. The law already recognized, both in statute and common law, that some crimes are worse simply because the state of mind is worse, and deserve to be punished more harshly.

Thomas,

That's true, but the point in that case is not that the acts are different depending on the degree of passion, but rather that the culpability for the acts is different. A coldly calculated murder and a heat-of-the-moment murder are both equally murders; but we judge the free will of the murderer to have been compromised in the second case in a way it is not in the first case, so that he merits a lesser punishment.

Maybe the following analogy would be helpful here: In Catholic moral theology, the conditions for mortal sin are (1) that the act be objectively sufficiently grave in its sinfulness, (2) that the sinner acted with sufficient knowledge, and (3) that the sinner acted with sufficient deliberation. If any of (1)-(3) are missing, mortal sin is not present -- there is either no sin at all, or only venial sin.

When we consider the spontaneous passion with which an act was committed, we are talking about msomething relevant to (3), but when we consider the motives -- including hatred -- we are talking about something relevant to (1).

By analogy, when the law wants to determine whether you really meant to kill someone, it's addressing something like condition (1) for mortal sin, whereas when it considers the "heat of passion" factor, it is instead addressing something like condition (3).

The subject at hand, though, is the nature of the acts being punished -- is it the overt act of murder alone that the law is trying to discourage? Or is it also the inner act of wllfully entertaining hateful thoughts? -- rather than a person's degree of culpability for an act. So I don't think "heat of passion" examples and the like are relevant.

Holbo and the many, many other people who defend hate crimes laws this way are equivocating between intent and motive. The law constantly inquires about intent (a kind of mental state) and rarely about motive (a different kind of mental state).

Plunging a knife into a belly during surgery is done with a curative intent (and, usually, a pecuniary motive, contra Dr Feser). Plunging a knife into a belly during a murder is done with a murderous intent. Plunging a knife into a belly whilest in the grip of a delusion that it is a loaf of bread and not a belly lying before one is done with a bread-slicing intent.

Hate crimes laws are unusual in that they involve motive. This is problematic at least partly because of the kind of inquiry they are likely to set off. Usually, the knife-belly plunge speaks to intent all by itself --- outside of very narrow circumstances, we can be confident that the knife-plunger had a murderous intent or at least an intent to do serious harm. Figuring out that he was motivated by a hatred for crackers is going to require a pretty spookily totalitarian inquiry into his life, often times.

Some persons commenting here in favor of "hate crimes" (and “thought crimes” in general) legislation are entirely too copasetic … or dishonest … about how this will work out. Two recent news items from the UK –

Parents banned from watching their children in playgrounds... in case they are paedophiles

Grandmother who objected to gay march is accused of hate crime

It seems clear, from the comments above, that Holbo's formulation is based on an equivocal use of the word or concept, thought, as applied to actions. What his real original intended formulation is is not so clear. Can his argument be repaired? Anyone want to try? I suspect, based on the nature of equivocal arguments, that with out pointing it out to Holbo as asking for clarification, we may never know what exactly he meant. In other words, for now, Jeff, I would go back to watching the baseball game (is there a baseball game on - I've lost track, since the last time I watched baseball was in 1996).

The Chicken

What his real original intended formulation WAS is not so clear.

Darn, time to get the TARDIS fixed.

The Chicken

I think this has already been pointed out, but I want to respond to something Bobcat said. He said we already distinguish crimes based on motives, and gave the example...

negligent homicide is less serious than premeditated murder because negligent homicide results from the absence of a mental state that one should have, whereas premeditated murder means you have a mental state that you shouldn't have

I disagree with the statement that this is punishing some _motives_ more than others. As a committed detective novel addict, I can tell you that motive isn't actually the issue here. Motive, properly speaking, will actually distinguish two premeditated murders but does not distinguish premeditation and negligence. For example, "I set a booby trap to kill my mother-in-law because she is white" vs. "I see a booby trap to kill my mother-in-law because she interfered in my marriage." That is a difference in motive. In the case of negligence, we assume that you did not have the _intent_ to kill at all. Motive and intent must be kept distinct. The difference between premeditation and negligence is one of intent, not one of motive. Two acts of negligence, by the way, can also differ in motive: "I'm not going to go back in to check and see if I left the stove on, because if there's a fire, only the cat will get killed" vs. "I'm not going to go back in to check and see if I left the stove on, because I am in a hurry to get my child to the doctor."

It actually seems to me a fairly sound principle that motive _properly speaking and clearly construed_ should not make a difference to the criminal category of an otherwise criminal act. If you kill your mother-in-law premeditatedly because she is white, you should get the very same punishment as if you did it because of her interfering ways.

Let's put it terms of actus reus and mens rea. We can avoid the culpability issue by looking at first and second degree murder. The actus reus of a homicide may be precisely the same, but if the mens rea is different, a different crime and a different punishment is warranted. In other words, in our legal system, we consider a difference in mens rea, by itself, to determine the degree of the crime even where the actus reus is identical. We do this because some states of mind deserve greater condemnation even if they do not change the outward physical act at all.

This is even true with "future crimes". We consider it worse to posses heroin with intent to sell than the exact same act without that intent.

Mens rea elements -- by themselves and without making any difference in the physical act -- can change the severity of the crime in many cases. Hate crimes are not unique in this regard.

Ed wrote,

"That's true, but the point in that case is not that the acts are different depending on the degree of passion, but rather that the culpability for the acts is different. A coldly calculated murder and a heat-of-the-moment murder are both equally murders; but we judge the free will of the murderer to have been compromised in the second case in a way it is not in the first case, so that he merits a lesser punishment."

I don't know that the act of killing a black person because you hate black people is the same as killing a home-owner because you want his stuff. One is a racially motivated murder; the other is a financially-motivated murder. Now, they're both called "murder", which might lead one to believe they're the same act. But consider the case of genocide; do you think genocide is the same act as mass murder? For instance, if I try to kill all Jews in the 1940s, isn't that a different act (really, a set of acts) from trying to kill 9,000,000 people in the 1940s?

It might be easier if we distinguish between actions, which are purpose-act pairs, and acts, which are just the physical components of actions. If we do that, then obviously racially motivated killing is a different action from financially motivated killing, even if the killing is the same act.

Thomas-
I think maybe a better way of phrasing your statement
In other words, in our legal system, we consider a difference in mens rea, by itself, to determine the degree of the crime even where the actus reus is identical
might be "a different degree of mental culpability changes the degree of the crime even when the result of the crime is identical," since the whole thing kinda boils down to disagreeing on what the Latin phrase translated as "guilty mind" actually means?

This is even true with "future crimes". We consider it worse to posses heroin with intent to sell than the exact same act without that intent.

I have a problem with this. As only God can know the contingent future, the "future crime," you describe is really a past intent that persists into the present (usually, the moment of being arrested). Indeed, suppose the person who bought the heroin with intent to sell (a future crime), before they actually get caught, has a change of heart and turns themselves in? Can they still be charged with intent to sell? Obviously, the future is not set, so how can there be a crime committed?

Phillip K. Dick (Minority Report) got the issue right, but for a slightly wrong reason, in my opinion. This topic might be thread-jacking, though.

The Chicken

Dr. Feser,
Encyclopedia salesmen are entirely wicked. I'm not saying they deserve to be harmed, they just need to reconsider their perverse lifestyle choices. They are anathema to the natural order and a plague upon decent folk everywhere. Why can't you see the monstrous danger they represent?

Foxfier,

No need to bring culpability into it, as it confuses the issue. I'm simply using mens rea to refer to the mental element of a crime required by (usually) statute or (sometimes) common law.

Chicken,

We may not know with certainty the future, but we do punish for the intent to do something in the future that was not actually carried out because it was stopped in time. Some attempted murder happens this way, but also conspiracy charges. No need to predict the future with complete accuracy; all you need to be able to do is ascertain the person's intent and preparatory actions through reasonable inferences.

Thomas wrote:

"Mens rea elements -- by themselves and without making any difference in the physical act -- can change the severity of the crime in many cases. Hate crimes are not unique in this regard."

But as Bill and Lydia have pointed out, the mens rea involves intent; it does not inquire into motive. In other words, 1st and 2nd degree murder differs in whether or not the killer intended to kill the victim (Was it premeditated? Was it an accident? Was it done in the heat of the moment?). It does not inquire further. The mens rea is only concerned to know that the killing was *intentional*. It does not ask what motivated the killing (hatred of women, anger over infidelity, etc.).

Hate crimes differ in that they search for motive. They make a difference between killing someone for being overweight, versus killing someone for being black. The mens rea would be the exact same in either murder (premeditated killing); but the motive would be entirely different, and punished differently.

Thanks, Christine.

Christine,

That is incorrect; both first and second degree murder are intentional, however, the former is premeditated and the latter is not. The law determines that while intentional, the mental state in one is deserving of greater punishment than the other. Further, the law actually does ask whether the homicide was motivated by anger over infidelity both at common law and in many statutes.

Further, your restriction on mens rea requirements are arbitrary and do not match up to modern statutes or to the common law. If what you were saying were true, then the Model Penal Code would not could not distinguish between reckless and negligent culpability; both are unintentional, however one is more blameworthy than another.

Your assertion, roughly, is that only general intent requirements fall under mens rea. This is simply not true. The law absolutely does inquire into motives in specific intent crimes: "possession with intent to distribute", "offensive contact with intent to cause humiliation", "breaking and entering with intent to commit a felony therein", and so on.

"Mens rea" is just used to mean "mental state", sometimes with regard to intent to commit the particular actus reus, sometimes with a particular motive in committing that act, and sometimes with a further intent as specified by statute. The law differentiates the blameworthiness of these different mental states and punishes accordingly. Hate crimes would not be anything novel in that sense.

I'm trying to find a parallel here: "Breaking and entering with intent to commit a felony therein" is ostensibly parallel to "premeditated murder with intent to kill a black person."

Somehow, this parallel is coming out unconvincing.

Thomas-
Mens Rea is mental culpability.

Good short(ish) quote:

The modern meaning of mens rea, and the one common in legal usage today, is more narrow: mens rea describes the state of mind or inattention that, together with its accompanying conduct, the criminal law defines as an offense. In more technical terms, the mens rea of an offense consists of those elements of the offense definition that describe the required mental state of the defendant at the time of the offense, but does not include excuse defenses or other doctrines outside the offense definition.

Read more: http://law.jrank.org/pages/1588/Mens-Rea.html#ixzz0VORR9KO8

I'm trying to find a parallel here: "Breaking and entering with intent to commit a felony therein" is ostensibly parallel to "premeditated murder with intent to kill a black person."

Somehow, this parallel is coming out unconvincing.

Lydia, I am going to make a guess here. The "breaking and entering with intent to commit a felony therein" seems to condition the more severe penalty with a motive that incorporates a greater disturbance to the common good than simply breaking and entering. The intent to commit a felony makes the breaking and entering itself more grave as a moral act. If it were carried through, the additional act would present an additional crime. The law, then notes the increased gravity of the moral act, insofar as it bears on a more grave damage to the common good (even though that further damage is only intentional rather than actual).

Can a similar parallel be made with killing a black man precisely because he is black? It is bad enough to intentionally kill any man. It is still more damaging to the common good to do so by singling out a black man a victim precisely because he is black. That motive is a more grave moral evil than a motive of profit (for example), and represents an additional harm to the common good which warrants a more severe penalty.

I am no lawyer, but it seems to me the most important question is whether the intentionally singling out the black man precisely because he is black constitutes a greater evil to the common good.

Even if it is true (not a given, needs to be argued carefully), this would not automatically mean that it is a good idea to make a law to punish such hate motive. But it would form a rational basis for prudentially considering the question.

IMO, the "with intent to commit a felony therein" is an additional problem because it's an intent to commit something that is a further crime, and something that (we assume) is legitimately designated as a further, actual, active crime. It is thus on a par with "preparing a terrorist attack," for example. The punishment is related to the fact that one is taking active and deliberate steps (_intentional_ steps) toward the commission of a crime. Hating people should not be a crime, should not be treated as a crime, and presently _supposedly_ is not a crime. Committing an actual crime because you hate somebody is not committing an actual crime as part of the preparation for a further crime you are attempting to commit.

I think right now of the Knoxville atrocity being tried. Two young people were kidnapped, tortured, and murdered. I absolutely reject (with some anger at the thought) any notion that because they were tortured, the young woman raped, and murdered in an animal-like fashion "just because" their murderers should be punished less harshly than if these crimes were committed because of racial hatred. The whole idea is odious and, I'm afraid, fits with what Auster has been talking about recently in the highly unfortunate tendency in police and news to refer to premeditated crimes against persons as "random." To take the crime down a notch, if I plot against and cold-bloodedly murder an entirely innocent co-worker because he has filled out a life insurance policy that benefits me, I should not receive a lesser punishment than I would receive if I committed the same crime because my co-worker was Chinese.

Further, the law actually does ask whether the homicide was motivated by anger over infidelity both at common law and in many statutes.

While most of Thomas' observation about mens rea was accurate, this is not. The common law (and by association most statutes, which tend to be far less lenient) didn't inquire into the cuckolded killer's actual motive when using the adultery to mitigate murder to manslaughter. Rather, to so mitigate, the defendant had to prove that he had committed the act while in a rage precipitated by learning of the adultery. There were and are, of course, a variety of qualifying rules about what sort of events could bring about a qualifying rage, the intervals that could pass between learning and killing, etc. This was an inquiry into mental state, yes, but it was not an inquiry into motive. The law assumed a motive in part, but principally for the rage---motive for the actual killing is not an element of the defense. So even this isn't quite the same (setting aside even the fact that this is a mitigating defense, not an actual independent crime).

For instance, if I try to kill all Jews in the 1940s, isn't that a different act (really, a set of acts) from trying to kill 9,000,000 people in the 1940s?

As far as this particular inquiry goes, I think one can agree with the proposition: it is, at least in some circumstances, independently wrong to attempt to eradicate a civilization or society. (Of course, there are undesirable civilizations and societies that it would not be wrong to seek to eradicate, although the indiscriminate slaughter of the populations would not be a moral means for achieving that end.) So that would be an independent evil added to the baseline evil of killing 6 million people, thus making the one mass murder more wrong than the other.

The difference, of course, is that this isn't what's going on in a "hate crime." And to the extent that it is, and it seems that some of the statutes presume that it's at least similar, it becomes the sort of viewpoint discrimination that democratic governments purport to avoid. If you think gay culture ought to be suppressed and you kill someone, it's a federal offense with lots of enhancements. If you think Catholic culture ought to be suppressed and you kill someone, it's a state offense with no enhancements. In all other fields the state purports not to distinguish between such opinions. Plus, there is the magnitude issue: single murders are not genocide, regardless of how bad my purpose or intent. But the presumption becomes one in favor of a hate crime when the victim/killer matrix looks a certain way. This really becomes an Equal Protection problem, because there is no practical way to secure a hate crime conviction for killing a white Christian heterosexual. It's simply not going to happen.

Finally, federal hate crime laws are unconstitutional. Flat out. Read Cruikshank: the 14th amendment does not give Congress the authority to regulate private actors. The claim that killing people based on certain motives has a substantial effect on interstate commerce is, to put it charitably, fulsome.

Dear Thomas,

If a person has the intent to do X and doesn't do it, he may be punished for not doing X, but not for the intent, at least according to Christian understanding. I am thinking of the parable where there were two sons. One promised to do what the father asked, but did not, while the other, who refused, changed his mind. Christ asks, "which, do you suppose, did the Father's will?"

If the law is going to charge people for an intent that existed at one time, but has been abandoned, such as in my example of the repentant heroin dealer, then the law, as such is immoral, since it sets a more severe standard than any reasonable person should. I am will to think, however, that I misunderstood you.

Have you heard about what happened when a distraught woman told St. John Vianney that her brother jumped off a bridge? He said, "Yes, but he repented on the way down." Would the law, if it could, charge him with suicide, since his intention changed? Certainly, when he jumped from the brifge, his suicide was a future crime, since he had not yet reached the bottom, but when he reached the bottom, his intention had changed.

I maintain that the concept of future crimes makes no sense or at least nmust be very carefully proven unless one has the gift of omniscience.

The Chicken

I always wish the above commentator Paul would comment more here at W4. He has commented on a number of my posts concerning legal matters, and always usefully. Thanks, Paul, even though this is somebody else's post.

Chicken, I think it is legitimate to punish a crime of actual, practical, plotting towards committing a great evil. Practically speaking, it would be impossible for the government to stop a Timothy McVeigh from blowing up the federal building in Oklahoma City, even if he blazoned his intent and plan on the Internet several weeks in advance and had already purchased a truckload of fertilizer, if it were not criminal to plot a crime and actually to take steps towards committing it, even if those steps were themselves not the crime and perhaps (as in the case of purchasing large quantities of fertilizer) not criminal. It's possible in principle that McVeigh should have repented before blowing up the federal building, but we know that he didn't, and his carrying out clear steps towards blowing it up ought to be sufficient indication of intent for criminal purposes. Remember that even if you deliberately shoot an innocent person in the head, you could in theory repent the moment your finger has finished squeezing the trigger, so, "He might have repented after starting the ball rolling" cannot be in itself a sufficient defense to a criminal charge. This is why I don't have a problem with "future crimes" per se, but of course it depends on the future crime whether it a law against it is sensible. "Plotting to toss a candy wrapper out of the sidewalk" shouldn't be a crime even if littering is.

Paul,

My point in responding to Christine's post was that mens rea covers a lot more than whether an action was intentional.

The common law presumes that the motive in such a case would derive from witnessing a spouse in adultery. If there were a case of polyandry, for example, where the legal husband came home to see the other husband in bed with his wife (as he did many times before and has no problem with), then killed him for cutting him off in traffic earlier, not for sleeping with his wife, then I doubt a court would allow the defense. Motive isn't usually inquired into in these cases because it is presumed; if the motive were not as the common law presumes it is in these cases, then it would be questionable whether that defense would work.

I do agree that the cuckold defense is not a good example to use, as it's an incomplete defense, and it brings up the question of whether a person is acting freely. The specific intent crimes I've mentioned are more than enough to demonstrate my point more clearly.

Foxfier,

I suggest you read your own quote. "Mens rea describes the state of mind or inattention that, together with its accompanying conduct, the criminal law defines as an offense." This would include a mental state of racial hatred in committing a hate crime.

Mens rea often refers to level of culpability, because this is required in all crimes save strict liability crimes, but it also refers to specific intent crimes. This is not a revolutionary or unusual interpretation of the law. If what you (and Lydia and Christine) were saying was true, then there would be no specific intent crimes. However, there are, and they are not rare.

If you wish, I can pull some cases for you when I get home to further demonstrate this.

What I said, earlier: "As only God can know the contingent future, the "future crime," you describe is really a past intent that persists into the present (usually, the moment of being arrested)," holds in the case of Timothy McVeigh. Intention always flow from the past to the present into a fictitious future that may or may not be realized. The problem with repenting moments before the bullet reaches the head of the victim is that of deliberation. it takes a finite amount of time to change one's mind with knowledge and the bullet transfer time is not enough. In the case of McVeigh, one could imagine the following: suppose he bought the fertilizer/truck intent on blowing up the Oklahoma building, but had a change of heart and decided to give the fertilizer to a local lawn and garden club, instead. The day before, the truck is stolen and used in the same crime. Could he be charged with the intent to kill? It is true, that he projected a future at one point where he could have killed, but he also destroyed that future in favor of another one.

It is the present in which crimes are committed and intention can only be judged in the present or past. Intention projects into the future, but only a contingent future. The intention can only originate in the past. There is no such thing as future crime, because that would imply a certain, definite act, that is known, ahead of time, to occur in the future and such knowledge is not given to man. If one wants to amend the description to "crimes planned for the future," I have no problem with that. I was objecting to Thomas's idea of future crimes being a definite function of intention, since intention does not touch the real future, only one possible future. Present crimes are accomplished and may be dealt with. If there were such things as future crimes, then, perhaps we should all just be given court dates for speeding when we are born. That would certainly help fund police departments.

The Chicken

I daresay Holbo is the one who is inept, toss in dishonest while you're at it.
Not to waste time on this crap, if there is someone out there, including, Holbro, who can tell me precisely how, not only hate, but the degree with which the purported hate played in the crime I'd love to hear it.
Hateometers anyone?

Conversely, how does the defendant disprove hate or the degree thereof?

Holbro seems to draft the progression of law for the past two thousand years onto modern liberalism, arrogant and typical. They invented soap too.
But as the essence of judging the seriousness of a crime is and must be wedded to questions of degree, a slap in the face being less injurious then a hammer to the head, but both being plainly physical and observable, what degree or degrees of internal mental state are not only knowable but measurable in the eyes of the the law, the courts?

Will we have Hate in the 3rd degree in indictments and sentencing? Blanket, one size fits all?

Hate and its proof does not lend itself to easy observation, except in one area, the burning, continuing, and excessive hate of the politically righteous, Mr Holbo for ugly example.

If john t could tell me how to detect intent, and not only intent, but the degree of intent, and how it played a role in the crime, I'd love to hear it. Do we have intenterometers?

Those people who say there's a difference between first degree murder and negligent homicide are not only inept, but dishonest.

Hippies!

Haven't read through the comments yet, so this may have already been addressed. Not a philosophical basis for an answer, but from a legal perspective: Traditionally, the law uses mens rea to distinguish between two types of acts - intentional and unintentional. Through this distinction, the law punishes intentional crimes more severely, deeming them more egregious. In that sense, yes, all crimes are "thought crimes" to the extent the crime was done intentionally, as opposed to perhaps recklessly, or with some lesser mental state.

But the difference here is between "mental state" (knowingly, intentionally, recklessly, negligently) and "mental content". These states are all content neutral - one can knowingly and intentionally kill another because one hates the guy for stealing his wife, for getting a promotion, for being of a different race or religion, because he cut you off in traffic, because someone paid you to, etc. "Thought crimes," at least as I would object to them, are those actions labelled as criminal not because of the mental state, but because of the mental content.

I would have no objection to admission of evidence that Bob killed Joe because Joe was black, and therefore Bob acted with the mental state of intent, and he therefore should be punished as any other person convicted for intentional murder. I would have objection to Bob being automatically subject to a greater sentence for intentionally murdering Joe because Joe was black, than he would have been if he murdered Joe because of a drug deal gone bad.

So, I don't think you are missing anything - the law distinguishes (traditionally anyway) between mental states, not mental content. Hate crime legislation, at least that which I have seen, goes beyond that to punishing mental content, not just mental state.

This really becomes an Equal Protection problem, because there is no practical way to secure a hate crime conviction for killing a white Christian heterosexual. It's simply not going to happen.
We have a winner!

I think Thomas is right that there are crimes in which we do punish more due to motive, e.g. "possession with the intent to sell," which is truly a motive. Whether this thought-policing is too dangerous a role to give to the government, I am not sure. But it's happening already.

Regardless, if we are to police thoughts accompanying criminal acts, we must certainly do so equally. Current hate crimes legislation, though, by not punishing act-accompanying hatred of car salesman or tall people, would seem to fail an equal protection test in its very form, not to mention the fact that in practice, white, Christian heterosexuals will not be equally protected.

Thomas-
being deranged by hatred of some characteristic of a person would be closer to walking in on your wife with another man than with careful premeditation, thus counter to "hate crime" legislation it should be considered a mitigating factor under standard Mens Rea.

the mens rea of an offense consists of those elements of the offense definition that describe the required mental state of the defendant at the time of the offense

For it to be any different, directly from that quote, the offense ("willfully killing people with premeditation") would have to specifically list a mindset ("belief that they have a characteristic and this is a good reason to kill them") in the definition of the crime. (Pretty clear how the phrase "thought crime" applies, huh?)

I like how cmatt put it:

the law distinguishes (traditionally anyway) between mental states, not mental content. Hate crime legislation, at least that which I have seen, goes beyond that to punishing mental content, not just mental state.

Specific intent crimes (at least most of the ones I have come across) deal with the intent to specifically commit a particular narrow act (eg, distribute heroine, as opposed to marijuana). Again, these don't seem to go to the mental content in the same sense as a hate crime - eg, intend to distribute heroine to Wiccans, as opposed to marijuana, because heroine is more destructive and I hate Wiccans and want to destroy them.

Future crimes, again, it seems the crime is for having the present intent to do X, and presently carrying out acts to further accomplish it, even if you don't complete it (inchoate crimes). The crime being punished is not really the future thing to be accomplished, but the present intent to commit the act and present actions carried out in furtherance of its accomplishment. In the McVeigh example, if he had the present intent to blow up the building, and went out and bought fertilizer to do it, and the prosecutor can convince the jury that at the time of the purchase McV had the intent, then he has committed a present crime - the crime of plotting the destruction of the building and committing an overt act in furtherance of it. If, on the other hand, the jury believed he plotted to blow up the building, but before he got off the plotting couch he decided to grow lima beans instead and bought fertilizer for it, then he should not be convicted. No present crime because no present intent + overt act in furtherance of it.

After all, it’s not as though the lives of those killed accidentally are worth less.

This misses the point - the criminal law's job is to evaluate the actions of the perpetrator, not the worth of the victim (that is for civil law, in a sense). Although there are some special categories for victims - eg, uniformed police officers or government officials - but that is more because it is a direct affront to the authority of government, not so much because of the individual who holds that office.

Matt C.,

Mens rea requirements may specify either intent or "mental content," and the latter is frequently the case. Aside from the example I've given above of laws that take motive into account, many laws also require knowledge of attendant circumstances: one can't take something they know to belong to someone else, etc. This is frequently the case even in older common law. And, although some specific intent crimes do deal with intent to commit a future crime, others deal with the motive for an act (sexual touching with an intent to humiliate, etc.). Not sure where you're getting your definition of specific intent crimes from, but its too narrow. Specific intent means any mental state above and beyond the intent to commit the particular act (i.e., general intent); or to put it another way, specific intent includes those mental states specified which do not fall in the category of general intent.

Foxfier,

As Paul correctly admonished me above, hate crimes legislation is different than the heat of passion defense. Acting with or without apparent animosity for one of the protected classes would clearly not be a defense.

I am no lawyer, but it seems to me the most important question is whether the intentionally singling out the black man precisely because he is black constitutes a greater evil to the common good.

That is a fair question. And as Prof. Feser points out, there is nothing wrong with asking that question if one admits what we would be trying to do is punish certain types of thought (perhaps they should be punished). Of course, the communal harm of intentionally singling out black men would need to be weighed against the communal harm of granting the government the authority to punish certain ways of thinking. I imagine it would require some careful amending of the First Amendment to accomplish it.

Bobcat:

I don't know that the act of killing a black person because you hate black people is the same as killing a home-owner because you want his stuff. One is a racially motivated murder; the other is a financially-motivated murder. Now, they're both called "murder", which might lead one to believe they're the same act. But consider the case of genocide; do you think genocide is the same act as mass murder? For instance, if I try to kill all Jews in the 1940s, isn't that a different act (really, a set of acts) from trying to kill 9,000,000 people in the 1940s?

Yes, a complete moral evaluation would make a distinction -- in the former the root is some kind of hatred (the end that is intended is evil to one's neighbor), and so the murder takes on the formality of hate. In the latter, the root is greed (and so the end that is intended is acquiring some thing), and so the murder takes on it the formality of greed (rather than hate). Aquinas talks about how the internal act provides the form while the external act provides the matter, etc. With that said though, the question is whether the law does punish acts of injustice differently according to the different ends that are intended, or if it only looks at the external act.

Mens rea requirements may specify either intent or "mental content," and the latter is frequently the case.

Sure. That is why I qualified my original comment with "traditionally," and probably should have later as well. In fact, thought punishment is evident in civil law already - anti-discrimination laws come to mind. Whether that is a good or bad thing to carry over to criminal law is another matter. Generally, there was no civil remedy for discrimination without the statutes - employment at will, etc. If you got fired, you got fired, and that was it, unless you were lucky enough to have an employment contract to fall back on. In criminal law, there is already punishment for committing a murder - do we need additional punishment for committing a murder with unapproved thoughts?

although some specific intent crimes do deal with intent to commit a future crime, others deal with the motive for an act (sexual touching with an intent to humiliate, etc.).

Again, that is true, but there still seesm to be a difference in kind between these specific intent crimes, and hate crimes.

"Sexual touching with intent to humuliate" still appears content neutral in the "hate crime" sense. You would have to add "..beacuse he/she is black, short, ugly, Catholic, etc." before it would be what I would consider attacking the mental content. That exxample certainly gets closer by providing a motive, but the "humiliate" motive still seems content neutral. You can be motivated to humiliate for any number of reasons.

What this hate crime law boils down to is that some murders are more equal than others.

What this hate crime law boils down to is that some murders are more equal than others.

Maybe, more accurately:

What this hate crime law boils down to is that some murders are more hateful than others.

The Chicken

OK, so we seem to be in a bit of a quandary as to whether we already punish crimes more on account of thought content: if we do, it seems muddled; and if we don't, we come very close to it with some laws (maybe only with bad laws?)

Let's postulate that current criminal law does NOT punish crimes for their thought content in the manner now contemplated under the hate crimes bill. That only settles whether we have ever thought such a thing good to do in the past - NO, we haven't. It does not settle whether such a thing is good to do now (unless, like my knee-jerk traditionalist friend says, "what we thought in the past was good" constitutes the defining characteristic of what is good to do now).

I agree that it seems to create some pretty heavy going constitutionally. I also agree that it presents a fearsome power of the government to ascertain thought and then punish it. The first argument would mean that the Feds should not get into this arena, but leaves the states free to legislate this. The second is more of a prudential issue than either fundamental moral or legal consideration. Is there any argument that presents an argument that the state governments MUST not go down this road, that such a law cannot ever be good law?

Here's another issue: suppose one of the hate-protected groups is "blogners", and suppose that I really hate blogners and everyone knows I really hate blogners because of the things I say and do, and then I murder a blogner. However, it so happens that the reason I killed the blogner is he got in my way on the freeway, and I had no idea that he was a blogner until after death. Can I ever prove that there was no hate in my crime? Can I ever sufficiently defend myself against the charge of the hate-crime? My admittedly murderous intent in the action was certainly a crime, but the additional crime of hate was not part of the action. Yet I have no way of establishing this.

Finally my BarBri materials and Bar exam studies DO come into use: mens rea goes to intent, not motive.

Matt C puts it best:
"criminal law's job is to evaluate the actions of the perpetrator, not the worth of the victim"

We hear the tragic stories of people killed because they were gay or black (ie. Matthew Shepard, James Byrd) and make no mistake - these are awful incidents of violence. But do we ever hear about the ones who were killed because the murderers thought the victim was gay? Or how about the non-black victim who was killed because the perpetrators thought he was black? [side-tangent, does this become an attempted hate-crime? or is this just murder?]

IMO, those of us opposed to this on the Equal Protection claim are the closest to what's objectionable about this bill. Let's not kid ourselves, Hate Crimes have nothing to with thought, intent, or motive. Hate Crimes are defined by the victim.

I'm going to offer one last paraphrase of the Chicken's paraphrase above:
What this hate crime law boils down to is that some victims are more equal than others.

That's why it'd be ludicrous to prosecute someone for killing an white, christian, heterosexual encyclopedia salesman. The hatred of members of his class is just as irrational as homophobia or racism, but the truth is he's not as equal as the others...

I know I'll be roundly beat up on this one by the fellow lawyers, but nonetheless, since I'm a conservative, my question:
Where's the constitutional authority for this bill? Where does the Federal Government's Police Power come from?

And Finally, this bill was attached to the National Defense Authorization Act, how badly do the libs hate their country that they would insert controversial hate crimes legislation into the national defense appropriations bill? I suppose to oppose the Authorization Act on the grounds of hate crimes would be racist, homophobic and unpatriotic

Thomas says:


Aside from the example I've given above of laws that take motive into account, many laws also require knowledge of attendant circumstances: one can't take something they know to belong to someone else, etc. This is frequently the case even in older common law. And, although some specific intent crimes do deal with intent to commit a future crime, others deal with the motive for an act (sexual touching with an intent to humiliate, etc.).

I don't see any examples of motive Thomas has given. "Possession with intent to distribute" is about intent, not motive. Motives might be to make money or hatred of society (leading to an intent to further its degredation) or compassion for drug users (leading one to want to give them a better price). Similarly "breaking and entering with intent to commit a felony therein." The motive could be to make money, hatred for the victim, whatever. "Intent to humiliate" is again intent. Motives might be to show off for friends, to express dislike, etc.

The distinction is between what you are trying to do (intent) and why you are trying to do it (motive). That this distinction is not always clean is obvious. The claim that the existence of gray disproves the existence of black and white is boring.

Speaking of which, here is a link to a law review article by Guyora Binder on the subject. The article takes up Thomas's side of the argument. One thing that is apparent from that article is that one of the motives for what seems to be a recent assault on the motive/intent distinction in the law is assisted suicide. The idea is that since suicide assistants have warm and fuzzy motives, they should not be punished (much?). To keep nasty right-wingers from fending off this argument with the venerable irrelevance of motive doctrine in the criminal law, it is useful to destroy it. It's actually a pretty interesting article. Evidently, the irrelevance of motive doctrine evolved at least in part to fend off various defenses by allegedly well-motivated criminals.

In Reynolds v. United States, the U.S. Supreme Court upheld the bigamy conviction of a Mormon in Utah, agreeing that defendant was not excused by his religious belief that he faced damnation if he did not pursue polygamy; “[e]very act necessary to constitute the crime was knowingly done, and the crime was therefore knowingly committed,” the Court concluded.

http://wings.buffalo.edu/law/bclc/bclrarticles/6/1/binder.pdf


c matt,

I'm not sure where you derived your distinction between mental content and mental state, but I don't think it was from either statutory law or case law. Even if some courts use that as a minority rule, I don't think that is a meaningful distinction as there would have to be a great deal of overlap between mental content and a mental state. Awareness of a circumstance involves both a state (awareness) and mental content (the particular circumstances). Thus the phenomenological emphasis on intentionality one finds in Husserl.

Additionally, the requirement of knowledge of an attendant circumstances obviously involves mental content. Knowledge of attendant circumstances is a fairly common requirement one traditionally finds. One can't steal when one is aware that the property is owned by someone else. One can't employ a minor when one is aware that the person is a minor. And so on.

In sum, the distinction between mental content and a mental state is a dubious one in terms of its intrinsic value and the fact that it is not a legal distinction that is actually used; and we do and traditionally have had "mental content" in the form of awareness of attendant circumstance as a mens rea element in certain crimes.

Paul: "This really becomes an Equal Protection problem, because there is no practical way to secure a hate crime conviction for killing a white Christian heterosexual. It's simply not going to happen."

And, even more shocking, the racially-motivated murder of a white by a black is statistically (and numerically) more likely that the racially-motivated murder of a black by a white.

Holbo is conflating intent with motive.

Intent is the state of mind a person has in committing an act, whereas motive is his reason for doing so. Usually, for an act to be criminal, a person must intend to do harm. Motive may explain why he had such an intent (which is why motive is usually addressed in trials), but it his intent and not motive that makes his act a crime.

Hate crime legislation does not substitute motive for intent. It is an extra element of the crime. But it is still obnoxious to human dignity, because it establishes that some reasons for deliberately and illicitly harming a person aren't so bad as others.

No need for graduate school to figure this out. A high school diploma, watching Perry Mason reruns with dear ol' grandma, and her Catholic take on the evil-doers worked for me.

The great problem with hate crimes laws is they are undoubtedly created to punish white hetero Christians and to favor all others. They're an attack on the majority traditional culture.

Y'know what's interesting? You can point out until you're blue in the face one of the things Paul said about the fact that these laws will not be applied in all directions, and people will either a) deny it or b) act like that's not worth saying or talking about and like we just have to debate only the merits of the thing *as if* that were not true, *as if* crimes motivated by hatred of whites, heterosexuals, or whatever, would be punished with this extra punishment as well.

Mind you, I think the thing is also wrong in the abstract. I think murdering a little child for his insurance money should be punished just as severely as murdering him because he is white, black, or Chinese, and it's horrifying to say otherwise. Therefore, even if anti-white or anti-hetero crime would also be punished even-handedly, I think there's just something skewed about the whole approach.

But is that the _only_ thing to talk about here? Can't we _admit_ equal protection even within the ostensible scope of the laws will not be given and that this is part of the problem? Can't we also admit that the intent is ultimately to have Euro-style hate-_speech_ laws, with no underlying crime even required?

Quoting Dresser,

The most common usage of the term "'general intent... is to designate as "general intent" any mental state, whether expressed or implied, in the definition of the offense that relates solely to the acts that constitute the criminal offense. For example, if battery is defined by state law as 'an intentional application of force upon another', this offense would be considered 'general intent' because the mental state ('intentional') pertains exclusively to the state of mind the actor must possess regarding the actus reus of the offense...

"In contrast, 'specific intent' designates 'a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime.' State v. Bridgeforth, 156 Ariz. 60, 62, 750 P.2d 3, 5 (1988). One of three types of mental elements is typically found in the definition of certain specific intent crimes. First, to be guilty of some offenses, the State must prove an intention by the actor to commit some future act, separate from the actus reus of the offense.... Second, an offense may require proof of a special motive or purpose for committing the actus reus ("offensive contact with another with the intent to cause humiliation") [that one's for you, Bill.] Third, some offenses require proof of the actor's awareness of an attendant circumstance ("intentional sale of obscene literature to a person known to be under the age of 18 years"). If one of these special mental elements is found in an offense, the crime is characterized as specific intent."

Thomas, I'll tell you what I can as soon as I make sense of your post.

The possession with intent to sell example doesn't seem to me to be parallel to hate crimes. In the possession case, you have someone committing a crime (possession of drugs) with an intent to commit another crime (distribution of drugs). Since there is nothing legal you can do with drugs, as personal usage is also a crime, this is an easy call; possession always will lead to a further crime being committed. But with a hate crime, there is no intent to commit a further crime. Killing someone does not make a further crime inevitable the way possessing drugs does, nor does killing someone with a hatred motive. So it goes back to what Ed Feser says above; that this is really about criminalizing certain motives, and eventually (I think) certain expressions that are deemed hateful.

Whether these should be criminalized is an open question; Europe seems to think that they should be, and arguably some ideas are so offensive that they should be banned. Of course, that gets into all kinds of areas about who gets to decide what hate is and so forth. I think this will eventually be used to stigmatize political enemies; as being a member of the wrong groups will be the most obvious sort of evidence for someone having a hatred motive.

Lydia: "Y'know what's interesting? ...

But is that the _only_ thing to talk about here? Can't we _admit_ equal protection even within the ostensible scope of the laws will not be given and that this is part of the problem? Can't we also admit that the intent is ultimately to have Euro-style hate-_speech_ laws, with no underlying crime even required?

"

Yes, what you said is true and interesting. And, yes, we can admit these things ... but "liberals" (even those who claim the name of Christ) can't.

I think right now of the Knoxville atrocity being tried.

The ringleader of the torture/murders was sentenced with the death penalty this afternoon. So I don't follow what you are saying about him receiving a lesser punishment.

Many crimes deserve the death penalty, IMO, and in that case one might say that there isn't any "worse" or "less stringent" punishment; the death penalty is the death penalty. But I think the illustration stands. It is unclear that any of the others will be sentenced to death, and if not, they will be imprisoned in state rather than federal prisons, which is often considered to be a lesser penalty. Moreover, the point is that when we are talking about truly evil acts, it seems evident by the natural light that racial hatred as a motivation *should not* make the penalty more stringent. Suppose for the sake of the argument that the state in question had no death penalty and that the imprisonment term if tried as a federal crime were likely to be longer. The point holds that it is odious to imagine that a heinous crime deserves one punishment if committed for no specific motive, just out of psychopathic love of evil, or for an inheritence (for example), and a greater punishment if committed out of racial hatred or hatred based on the victim's sexual inclinations.

If you prefer, Step2, my example of murdering a child (or a young woman, or whatever) for insurance money, feel free to use that example instead. Indeed, it could much more plausibly be argued that someone who feigned friendship and induced a young woman to make an insurance policy in his favor so he could kill her and get the money is betraying her interpersonal trust and hence is deserving of, if possible, even greater punishment than someone previously unacquainted with her who killed her in the same way, with the same degree of premeditation, for racial reasons. Not that I am advocating enshrining that intuition in law; I'm not. I'm just showing how many ways such arguments can be made.

Moreover, the point is that when we are talking about truly evil acts, it seems evident by the natural light that racial hatred as a motivation *should not* make the penalty more stringent. ..it is odious to imagine that a heinous crime deserves one punishment if committed for no specific motive, just out of psychopathic love of evil, or for an inheritence (for example), and a greater punishment if committed out of racial hatred or hatred based on the victim's sexual inclinations...

I don't really see that, at least not yet. I am working on it. The question isn't whether the impact of the crime on the victim is more odious or less odious due to the hatred (or lack) of the criminal. It is whether the crime has more damage to the common good because of the hatred.

First of all, I ask whether murder out of racial hatred is a distinct interior moral evil compared to generic murder. That is, is there an additional evil over on top of the basic willingness to kill a person? I think that there is: generically when you intend to kill an innocent person, you are ignoring their personhood, the image of God in them. But when you murder out of racial hatred, it is more like you are shouting down the personhood, taking aim directly at them out of (say) a nearness of their approach to the image of God: you would not have so much hatred of a dog, because a dog cannot mimic well a human's manner of being an image of God. This, it seems to me is a distinct evil in the heart of the racial murderer. [Please note, I am not suggesting that it is more evil than some other murders that take specific note of the person who is being murdered, like a murder planned for revenge against someone who dissed me (rather than, say, a gas station clerk is murdered because of where he happens to be at the critical time of the robbery, not on account of his own personal individuality). That would be another argument that I don't want to get into.] But just looking at it from the bird's eye view (or God's eye view) it seems to me that God will take note of and punish that distinct malice that attends the racially motivated murder more than murder done without that sort of special malice.

But it is NOT the state's job to punish all the acts and all the facets of the acts that God will look to. The state has care of the temporal common good. So, is a racially motivated murder a graver damage to the common good on account of that special malice in the will of the offender? It seems to me quite possible to argue that crimes directed specifically against a racial group, or any other group whose defining characteristic is something outside their power to affect, are more pernicious to the common good than ordinary greed or ordinary anger murders. Just as we think that murder of a someone in political office is graver than a "private" murder - and not because the statesman is a VIP. I don't know whether that argument would be right in the long run, I can see problems making it, but it is not irrational on its face.

If it were shown that it is a graver harm to the common good than run-of-the-mill murders, then it might be possible for the state to have reason to punish them more severely. But only maybe, because of all the problems attendant on discerning and punishing for motives, as well as the problems that allowing such a law will lead to hate-speech laws and other violations of the First Amendment.

Overall, I would think that there are sufficient laws on the books to punish the crimes to deal with the problem, we don't need to single this out as a special crime for which we have a special penalty. If the problem isn't being dealt with, it is because the basic crime is not being punished properly, not because the racial hatred is being left unpunished as a separate issue. Generally you cannot solve age-old vices by means of laws defining new crimes. The problems in the courts, the police departments, and the prisons do not stem from an insufficient number of laws, quite the reverse.

It is unclear that any of the others will be sentenced to death, and if not, they will be imprisoned in state rather than federal prisons, which is often considered to be a lesser penalty.

That isn't the reputation of state prisons, which are often considered worse than federal prisons. I'll grant that reputation could be overstated, and apparently each prison (federal and state) has its own maze of gangs, prison guards, and territorial customs to be negotiated.

Part of what I think is the difference between conservative and liberal views on this is that conservatives think prosecution should be only about the victim, like your example about how a victim's interpersonal trust is betrayed. My own view, which I suppose is similar to Holbo although I haven't examined his in detail, is that the state isn't just exacting retribution on behalf of the victim, which is of course the primary focus, but it is and should be concerned with secondary motives that threaten further similar acts of violence.

So when Matt Weber writes something like, "But with a hate crime, there is no intent to commit a further crime" my basic reaction is shock. The intent of a hate crime as I understand it is that it not only a crime against the victim but is intended to intimidate and threaten a related group, and those are not idle threats. Exactly the opposite of what he wrote, a hate crime indicates a very strong intent to commit further crimes.

One of the reasons I am not a lawyer is that common sense can be made to sound so uncommon. That's true in the physical sciences (and sometimes, like in quantum mechanics, common sense seems to be wrong), but, thankfully, God wrote and closed the book of nature and is not inventing new, arbitrary ways to redefine terms.

That being said, if the concept of hate crimes is not reducible to something already in existence in the natural law, then I would think the concept is pretty arbitrary and useless and even dangerous.

In fact, the concept of hate crimes is a vague as the body that wishes to define them. As Christians, we must hate what God hates. If the government should ever decide to define a good as an evil, then war is inevitable. We must hate the action of abortion. No one is called to hate the aborter or the doctor. If the government ever decides to say that hating euthanasia or abortion enough to try to stop it (without intended loss of life), then they would have defined a hate in opposition to God - one would be punished for hating what God hates. There is going to come a time, mark my words, when works of mercy will be redefined and at the top of the list will be to hate only what one is told to hate by the authorities.

Men have existed for thousands of years without thinking that hate should be removed from the realm of a possible good, yet, that is what these sorts of laws are attempting to do. They circumvent reason and arguments. They are judgments of good for a whole society by fiat. Should there not at least be a debate in the public forum on what forms and objects of hate to be disapproved of?

These sorts of laws have made the law less about reason and more about control. Wherever they are introduced, if the people have not been lulled to sleep, they will be resisted. Such laws could not have been introduced 100 years ago, even though Klan activity was at its peek. They would have been mocked and resisted. Prohibition was a subtle precursor to hate crime laws. It could not survive in the 1920s. That hate crime legislation is being trumpeted without much resistance, today, says something ominous about the mental state of the society.

These sorts of laws will probably expand and I would expect within fifty years to see anyone who is overtly pro-life being hauled off to prison for hating choice. I won't be around to see it, but, then again, a lot of babies, who have been hated in the womb, won't be either. Funny, the insane people writing the laws can't see that killing an innocent child in the womb is the ultimate hate crime. Heck, if they can't even get that right, I am not obliged to give them any credibility or obedience, because clearly, they have no idea what they are talking about. They are suffering from the mass insanity that life exists to be hated only when they say so and in what circumstances they say. Hate crime legislation is a subtle way of playing at God. It is an implicit form of blasphemy, but they will never see it.

If they can't see that all they need to know about hate crimes is contained in the commandment, "Thou shalt not Kill," then, clearly, the problem is that their consciences have not become more sensitive to a new class of crime, but rather that their hearts have become too insensitive to an old class of crime. Unfortunately, they are leading others into the same insensitivity. Watch, it will happen. Paradoxically, hate crime laws will not lead to a greater respect for life, but a more objectification of it.

What lovely thoughts for a Friday night.

The Chicken

I have spent the better part of this evening trying to read and comprehend all of the above posts. I lost some steam toward the end, but one thought that keeps coming to my mind is - while hate crimes law seeks to deal with the mental intent of the perpetrator, isn't it the heart that should be addressed here? This legislation is really an attempt to punish the heart attitude of the lawbreaker even though the creators of this whole concept and the resultant law can only see it in terms of the mind. It seems that from my perspective we are not addressing the heart of the matter - no pun intended. Of course as a Christian I know that only God can judge the heart so then I have to say that the government is completely out of line on this. The heart is not their domain.
And shouldn't we be taking into consideration the Law of Moses? How did God see punishment when He gave Moses instructions on implementing restitutional/corporate/capital punishment?

I wish I could be more coherent here, but it's late.

The intent of a hate crime as I understand it is that it not only a crime against the victim but is intended to intimidate and threaten a related group, and those are not idle threats. Exactly the opposite of what he wrote, a hate crime indicates a very strong intent to commit further crimes.

This would be two simultaneous crimes, not one with an intent to commit another in the future. A hate crime does not make a further crime inevitable, even though it may make one likely. Also, gang violence often acts the same way as what you've described, where there is a meta-purpose of intimidation beyond the regular crime. I've never heard of it described as hate crimes before.

---

Just out of curiosity, let's say Jim attacks Bob and steals his wallet and beats him up. Jim is white and Bob is black. Jim also happens to be a member of, say, the League of the South. This is all the prosecutors know at the time of indictment. Is he charged with a hate crime?

There is nothing about hate crimes legislation that restricts the prosecution to crimes that are attempts to terrorize and threaten a related group. It might be possible to gain evidence of such an intent, but nothing in the legislation requires it _at all_. Indeed, the flip side of treating heinous crimes differentially in a way that I find abhorrent is treating trivial crimes extremely in a way that is obviously inappropriate.

Example: A couple of years ago someone threw a copy of the Koran apparently not belonging to him into a toilet at a university. It was treated as a state anti-religious hate crime and bumped up radically in its criminal status, even though the underlying crime was only the destruction of a relatively inexpensive piece of property that would usually have been only a very minor crime. To argue that this was some sort of act of domestic terrorism against all Muslims and threatened further crimes, merely from that act itself (which I gather was all there was to it), is in my view ludicrous.

On the other hand, _repeatedly_ on university campuses liberal students have literally stolen the entire print-run of conservative student newspapers and _burned them in barrels_, in broad daylight, because of the views they contained. The university presidents have defended this vile act of destruction of property (costing much more than one copy of the Koran to replace) as "freedom of speech" and no charges at all have been brought, despite photographs of the thieves doing the burning. No charges. None. If anything, _that_ is clearly an act of intimidation and indeed a threat of further destruction should the conservative newspaper continue in production. But because its motive is political rather than "race, sexual orientation, etc.," it would never be able to be prosecuted as a "hate crime."

For myself, I would be happy if it were merely prosecuted as an ordinary destruction of property crime and if the university considered itself bound to provide security for the distribution of further issues of the newspapers in question.

Thousands and thousands of words and what it all comes down to is that we now have thought crimes,with the laws and penalties thereof.
Laws and penalties themselves generated by hate, impervious to any uniform standards of proof, applicable by & answerable to the particular prejudices of the judicial and non-judicial accusers.

Next, speech.

Lydia,

"It might be possible to gain evidence of such an intent, but nothing in the legislation requires it _at all_."

What are you talking about? In every statute, every element -- mens rea, actus reus, attendant circumstance, everything -- must be proved beyond a reasonable doubt. Why would you think this would be any different?

I'm distinguishing "motivation by animus on the basis of [fill in the blank--race, sexual orientation, etc.]" from "intention to intimidate and threaten a community of others like the victim." The two are by no means the same. They aren't even particularly close.

Ah, I see.

However, just because it isn't in the statutory language doesn't mean that isn't the purpose and the practical effect of the statute. Attacking someone based on their race (etc.) necessarily involves either a purposeful intent to intimidate a wider community or the constructive knowledge that such an act will do so (which is intent in its own way).

Not necessarily. And crimes that aren't even "attacks" in the ordinary sense--simple torts, littering, destruction of extremely small property, disturbing the peace, etc.--all get elevated by "hate crime" status, at least under laws that I am aware of.

Lydia: "*as if* crimes motivated by hatred of whites, heterosexuals, or whatever, would be punished with this extra punishment as well."

My understanding is that non-whites are punished in much higher numbers than white people under already existing hate crime legislation.

Cheers.

"What are you talking about? In every statute, every element -- mens rea, actus reus, attendant circumstance, everything -- must be proved beyond a reasonable doubt. Why would you think this would be any different?"

Good observation but some folks like to ignore text, context, history, and just make stuff up. Maximos, the law you referenced is rooted in our actual experience as a nation in which certain groups have often been denied justice in certain state and local jurisdictions. Well into the past century it was possible to inflict all sorts of harm on certain folks in certain jurisdictions and get away with it due to indifference or worse from local law enforcement. This history makes assertions that these laws are a violation of Equal Protection a cruel and ignorant joke.

We can think of Reconstruction as a sort of second Founding in which the 13th, 14th, and 15th Amendments provided the tools for a more perfect union. Unfortunately we choked and cut Reconstruction short, turning Freedmen over to the tender mercies of their recently traitorous neighbors.

The Supreme Court played its role with reactionary decisions like Cruikshank, the Civil Rights Cases, Slaughter House, Plessey, etc. I would urge you to read the dissents in these cases as well as the circumstances around Cruikshank for an understanding of why these laws are necessary in order for some folks to get justice.


"Where's the constitutional authority for this bill? Where does the Federal Government's Police Power come from?"

Sections of these laws dealing with race and due process/equal protection,etc. fall under the enforcement section of the Thirteenth Amendment. Other categories get around Cruikshank by using the post 1937 view of the Commerce Clause (limited by recent decisions). This might be of interest,

http://www.justice.gov/olc/2009/shepard-hate-crimes.pdf

"Can't we also admit that the intent is ultimately to have Euro-style hate-_speech_ laws, with no underlying crime even required"

Speak for yourself and you might also cite examples. Everyone that I know of values and respects the First Amendment.

"I think murdering a little child for his insurance money should be punished just as severely as murdering him because he is white, black, or Chinese, and it's horrifying to say otherwise"

And the state of California agrees, "190.2. (a) The penalty for a defendant who is found guilty of
murder in the first degree is death or imprisonment in the state
prison for life without the possibility of parole if one or more of
the following special circumstances has been found under Section
190.4 to be true:
(1) The murder was intentional and carried out for financial gain..."

This has really been over-analyzed with nonsense like "thought crimes" and the like. If targeting a person for financial gain can be an element of a crime why can't targeting a person because of his group status be an element of a crime? As a matter of fact such delineation is common (see Sec. 190.2, California Penal Code) and as long as there is a rational basis, such delineations should stand.

(BTW, how would one justify on even a rational basis the inclusion of a category against which there has been no previous bias? Much of this discussion has been conducted in an ahistorical vacuum.)

Here is a section from the law,

" [249] (b) Certification Requirement- No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, the Deputy Attorney General, the Associate Attorney General, or any Assistant Attorney General specially designated by the Attorney General that--

`(1) such certifying individual has reasonable cause to believe that the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of any person was a motivating factor underlying the alleged conduct of the defendant; and

`(2) such certifying individual has consulted with State or local law enforcement officials regarding the prosecution and determined that--

`(A) the State does not have jurisdiction or does not intend to exercise jurisdiction;

`(B) the State has requested that the Federal Government assume jurisdiction;

`(C) the State does not object to the Federal Government assuming jurisdiction; or

`(D) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence.

One point which has been repeatedly made is the commonsense one that targeting a person(s) based on the enumerated categories serves to terrorize others in that category thereby making it impossible for them to enjoy the benefits of civil society and other Constitutionally enumerated rights.


Step2, I would note the phrase "bias-motivated violence." I really cannot emphasize strongly enough that bias-motivation is not the same nor even all that similar to "terrorizing" people in a category. It's worth pointing out here btw that actual threatening, terrorization, extortion, and the like are already covered in plenty of statutes and do not require protected-class status. If someone threatens violence against me because he does not like my politics, or if he puts up threats against people _like_ me, he is committing a crime. It doesn't matter whether the category in question is the eating of broccoli. This is obviously an unobjectionable way to handle this kind of thing.

But that's not what y'all want. You want to use protected-class status for outlawing bias-motivated crime, and then when this is challenged, to say that the *effect* of such crimes is intimidation, etc., even if there is no particular evidence of intent or attempt to threaten, etc., as would already be covered by laws against making threats, etc. That's just meant as a justification for federalizing all sorts of crimes.

We're also, of course, meant to overlook the extreme unlikelihood that any heterosxual mistreated by homosexual activists will be specially protected by such laws. I seem to remember a case in Michigan where homosexual activists rampaged into a church and did vandalism, screamed in people's faces, and entirely disrupted the service. I await with bated breath, after this law is passed, the application of hate-crimes statutes to such incidents when they occur again. Ditto for people subjected to road rage for their pro-Prop 8 bumper stickers.

And really, if it's a question of intimidating whole groups of people so that they cannot freely exercise their civil rights, what could be a clearer case than repeated and systematic violence and threats against people for their political opinions and support of a particular state referendum? The vicious treatment and intimidation against Prop 8 supporters was disgusting. I remember just one case in which activists stormed a business whose owner, they had read, had given money to the Prop 8 campaign. They refused to leave and stormed at her until she was in tears and apologizing for her support.

Yet none of this would be covered by "hate crimes" statutes, and indeed, "hate" and "bias" is not even the issue. Direct, unvarnished intimidation and something very much like extortion (apologize or else) is.

But you'll never hear liberals asking what we can do to protect political and religious conservatives in California from intimidation.

Just skimming this thread, but I noticed the following, from Alex:

"My understanding is that non-whites are punished in much higher numbers than white people under...existing hate crime legislation."

Links, please, Alex?

I wouldn't like to think that you're just lying through your teeth.

Just an FYI,

http://www.fbi.gov/ucr/ucr.htm#hate

Those who have followed some of the assertions above, should they click through, will find that:

By race

In 2007, the races of the 6,965 known hate crime offenders were as follows:

* 62.9 percent were white.
* 20.8 percent were black.
* 4.9 percent were groups made up of individuals of various races (multiple races, group).
* 1.0 percent were American Indian/Alaskan Native.
* 0.7 percent were Asian/Pacific Islander.
* 9.8 percent were unknown.

As for victims, it seems that we have the following:

Racial bias

Among the single-bias hate crime incidents in 2007, there were 4,956 victims of racially motivated hate crime.

* 69.3 percent were victims of an offender’s anti-black bias.
* 18.3 percent were victims of an anti-white bias.
* 4.7 percent were victims of an anti-Asian/Pacific Islander bias.

* 1.5 percent were victims of an anti-American Indian/Alaskan Native bias.
* 6.1 percent were victims of a bias against a group of individuals in which more than one race was represented (anti-multiple races, group).

(Based on Table 1.)
Religious bias

Of the 1,628 victims of an anti-religious hate crime:

* 69.2 percent were victims of an offender’s anti-Jewish bias.
* 8.7 percent were victims of an anti-Islamic bias.
* 4.3 percent were victims of an anti-Catholic bias.
* 4.1 percent were victims of an anti-Protestant bias.
* 0.5 percent were victims of an anti-Atheist/Agnostic bias.
* 9.1 percent were victims of a bias against other religions (anti-other religion).
* 4.1 percent were victims of a bias against groups of individuals of varying religions (anti-multiple religions, group).

(Based on Table 1.)
Sexual-orientation bias

Of the 1,512 victims targeted due to a sexual-orientation bias:

* 58.9 percent were victims of an offender’s anti-male homosexual bias.
* 24.8 percent were victims of an anti-homosexual bias.
* 13.0 percent were victims of an anti-female homosexual bias.
* 1.8 percent were victims of an anti-heterosexual bias.
* 1.5 percent were victims of an anti-bisexual bias.

(Based on Table 1.)
Ethnicity/national origin bias

Hate crimes motivated by the offender’s bias toward a particular ethnicity/national origin were directed at 1,347 victims. Of these victims:

* 61.6 percent were targeted because of an anti-Hispanic bias.
* 38.4 percent were victimized because of a bias against other ethnicities/national origins.

Careful readers will note the presence of categories involving bias against white folk, various flavors of Christianity, and heterosexuals, the existence of which were deemed impossible by a number of posters above. Now it seems that Steve finds himself in an interesting situation. If Alex was "lying through his teeth" because he was apparently wrong, just what were Paul and Lydia doing as their assertions also seem to be incorrect. Perhaps all we have is an overconfidence in ones ideology combined with the incuriousness that often comes with that. After Steve's prompting, it only took a minute with the google to get an answer, Perhaps there is a lesson for all of us here?


Oh, al.

I'm off to bed, soon. It's been a long day. But before I go, I'd just like to note:

(1) despite what you seem to think, your post is unresponsive.

(2) The only thing that prevents the FBI's UCR from being a joke is that there's nothing funny about it. It's an ideological document, pure & simple. The NCVS is infinitely more interesting.

On the other hand, _repeatedly_ on university campuses liberal students have literally stolen the entire print-run of conservative student newspapers and _burned them in barrels_, in broad daylight, because of the views they contained. The university presidents have defended this vile act of destruction of property (costing much more than one copy of the Koran to replace) as "freedom of speech" and no charges at all have been brought, despite photographs of the thieves doing the burning. No charges. None. If anything, _that_ is clearly an act of intimidation and indeed a threat of further destruction should the conservative newspaper continue in production. But because its motive is political rather than "race, sexual orientation, etc.," it would never be able to be prosecuted as a "hate crime."

Which is why the established authorities deserve so little respect from the general public. Hate crime laws are no more enforced evenly against whites, heterosexuals and Christians (or conservative Jews) than drug laws are evenly enforced against racial minorities.

The state has gone far off the reservation. One has to ask why the hell the government gets to play these games when there are still unsolved murders, rapes, robberies and such...

(2) The only thing that prevents the FBI's UCR from being a joke is that there's nothing funny about it. It's an ideological document, pure & simple. The NCVS is infinitely more interesting.

Funny little story that a relative who is a former GS14/RAC in federal law enforcement, told me...

When the FBI would report hate crimes AGAINST whites, it would lump white hispanics under hispanics and not count them under "whites."

When the FBI would report hate crimes COMMITTED by whites, it would lump as many "white hispanics" (any hispanic that could remotely pass as caucasian) under the general white statistic.

It's like a lot of federal statistics: complete bovine excrement. I'll believe it the same day I start believing that the CPI is accurate (despite its glaring omissions) at reporting inflation and that we really only have a 9% unemployment rate...

Also, gang violence often acts the same way as what you've described, where there is a meta-purpose of intimidation beyond the regular crime. I've never heard of it described as hate crimes before.

But you have heard of RICO laws, a special category of laws designed for that specific violent threat?

Just out of curiosity, let's say Jim attacks Bob and steals his wallet and beats him up. Jim is white and Bob is black. Jim also happens to be a member of, say, the League of the South. This is all the prosecutors know at the time of indictment. Is he charged with a hate crime?

Official statements from the League of the South have always denied any suggestion of racist intent, so there isn't any reason to suspect a hate crime based on that information.

Steve Burton: "Links, please, Alex?

"I wouldn't like to think that you're just lying through your teeth."

Hold on a moment, Steve. Even if Alex didn't have any links to back up his claim, it wouldn't follow that he's lying through his teeth. He may simply have recalled hearing that or reading that, but be unable to provide a link because he doesn't recall where he heard or read that. In all my years of knowing him, Alex has never lied through his teeth.

"I wouldn't like to think that you're just lying through your teeth."

I wouldn't like to think you're lying, either. Not that it entered my mind... but perhaps I ought to take the possibility that you are a liar more seriously. At least, I guess, we can agree: if you're a liar, we ought to hold you in contempt.

At any rate, Bobcat's characterization is correct. A little research suggested that what I had heard is probably a bit wrong. Here are the easily google-able facts: African Americans are reported by the police to have committed hate crimes at a bit more than their proportion of the total population. If you want to find out more, look into the California statistics on it and do a better job reporting facts about the ethnicities of perps than the Feds.

Of course, the uncertainties about whether a given perp is white or Hispanic doesn't affect the dialectic. Lydia expressed doubt that African Americans, gay people, Muslims, etc. who commit hate crimes will get punished. African Americans are reported by law enforcement agencies for such crimes at rates roughly equivalent to their proportion of the population -- indeed, it appears, at rates that exceed their proportion of the population. Accordingly, there is one category of hate criminal who probably gets prosecuted despite belonging to an oppressed minority. Of course, this doesn't tell us much about whether they are prosecuted successfully... perhaps prosecutors almost always exercise discretion here. But I _highly_ doubt that.

Here's another issue: suppose one of the hate-protected groups is "blogners", and suppose that I really hate blogners and everyone knows I really hate blogners because of the things I say and do, and then I murder a blogner. However, it so happens that the reason I killed the blogner is he got in my way on the freeway, and I had no idea that he was a blogner until after death. Can I ever prove that there was no hate in my crime? Can I ever sufficiently defend myself against the charge of the hate-crime? My admittedly murderous intent in the action was certainly a crime, but the additional crime of hate was not part of the action. Yet I have no way of establishing this.

Well, first of all, you shouldn't have to prove your innocence, the state has to prove your guilt. They would have to find and present evidence that you knew the victim was a blogner, that you hated blogners, etc. Perhaps a search of your computer to reveal you frequented the victim's website, had pictures of the victim, knew his location at the time, etc. The more fundamental question to me is not difficulty of proof/defense (which are legitimate concerns), but whether these motives should be punished more severely in the first place, and whether the good (if any) gained by enhanced punishment is outweighed by the additional encroachments on personal liberties.

There appears to be a controversy going on in Washington state regarding a referendum on gay rights. Apparently there are gay rights groups asking for full disclosure of names and addresses of all signers.
I don't know why but when I came across this Lydia's posts of 10/31, 4:26 & 4:49 came to mind. Funny.

I still can remember back to earlier dark days, all the way back to January 19th, 2009, when privacy hung by a thread. Boy, have times changed, just not the way you would have hoped.

A passing observation on the subject of hate, so repugnant to the finer tastes.
Does it not seem odd that the man who signed this vote buying bill into law spent twenty years in the church of a vile black racist with the lungs of a whale and the mind of a guttersnipe.
Well at least it's odd, make else of it what you will.


Here's a hypothetical:

Smith runs a business. jones, who works across the street is irritated by Smith's easy grace with customers, his good business sense, his always being on the cutting edge. This envy boils and boils until it becomes positive hatred of Smith. One day, Jones decides to rob Smith as he is taking his money to the bank. Jones is caught. He is charged with theft. No one knows that he hates Smith (there is no connection between them) and yet he has committed a true hate crime, but will never be convicted of one because no one knows about it.

In other words, one is not required to incriminate oneself by revealing their mental state at the time of a crime. That is up to the state to expose. If they cannot, who is going to know? This could mean that there are some true hate crimes that, by their very nature, can never be known as such.

What, if anything, does this show about the limitations of hate crime laws?

The Chicken

What, if anything, does this show about the limitations of hate crime laws?

Their defenders would say it's not relevant because "hate crimes" are targeted at entire communities.

What that actually reveals is that "hate crimes" are not about hate in general, but specific types of hate: politically incorrect hate or prejudice.

One of the reasons I don't believe the official statistics is that cases like this one get reported as "non-hate crimes." 4 black marines rob, beat, torture, rape and savagely murder an inter-racial couple and you expect me to believe that it was about... money? That passes the hate crime "duck test" if you know what I mean...

Bobcat: fair enough. In all probability, Alex has just uncritically bought into the lies that have been fed to him by his ideological compatriots.

Alex: "African Americans are reported by the police to have committed hate crimes at a bit more than their proportion of the total population..."

Oh, really? Only "a bit?"

I really, strongly, suggest that you spend some quality time working through the National Crime Victimization Survey (NCVS), and comparing it to the UCR.

One of the many fascinating things that you will discover, if you work through the numbers, is that law enforcement agencies are more than twenty times as likely to accept and confirm the perceptions of blacks compared to whites that they have been the victims of hate-crimes.

I've blogged on this subject before. I guess maybe its time for me to try again.

Mike, what would be the point? The state is going for the death penalty and has listed several enhancements to that end. In California, hate crimes, as I recall, allow only for a maximum of life w/o parole when used as an enhancement in a first degree murder case. Multiple murders, burglary, robbery, and rape by instrumentality should be all that is needed.

Here are the charges,

http://public-access.riverside.courts.ca.gov/OpenAccess/CRIMINAL/defendantcharges.asp?casenumber=SWF026784&courtcode=C&defnbr=1778224&defseq=1&otnmseq=0&dsn=

As the state appears to be pursuing the case, federal intervention wouldn't be appropriate or allowed.

Steve, if you have evidence that the categories in the FBI stats are totally bogus please fill us in as they make my point re: Paul's and Lydia's assertions if there was even one prosecution in the white, christian, and heterosexual categories. Hope you slept well.

I never said or meant to say that "hate crimes" against whites would _never_ be found to have occurred. The only statistic above, insofar as it can be trusted, that surprises me is a finding that in any cases at all there have been "hate crimes" determined to have occurred against heterosexuals because of their being heterosexual. That is surprising, though it seems to be only a very small number (and percent).

I would add that I consider it highly implausible that such laws are or will be applied even-handedly in the sense that law enforcers are or will be equally likely to accept and prosecute for the extra "hate crime" status against groups that do not fall into the standard set of liberal sympathies. There is plenty of anecdotal evidence that hate crimes charges are not contemplated in cases where, if such things were done according to equal standards of evidence, they certainly would be. The connection with representation in the population is dubious, particularly if one thinks that a given group commits crimes that are "bias motivated" _far_ in excess of that group's representation in the population. Moreover, as in the case of the Civil Rights Acts, the legislative history is blatantly clear that the legislative motive behind the laws is special protection for one side of race, sexual orientation, religion, etc., just as the 1964 Civil Rights acts were not passed for the purpose of protecting white males against job discrimination, whatever the actual language said. This social and legislative history is highly relevant to the probable application of such laws.

Regarding "hate crimes" in France, the French philosopher Alain Finkielkraut summed it up:

"But I think that the lofty idea of `the war on racism’ is gradually turning into a hideously false ideology. And this anti-racism will be for the 21st century what communism was for the 20th century. A source of violence."

"Bobcat: fair enough. In all probability, Alex has just uncritically bought into the lies that have been fed to him by his ideological compatriots."

I love doing that... when I am not busy indulging my addiction to smoking the dried tears of Christian children.

OK... so here's the straight dope on hate crimes against non-minority folks: (I focus for the most part on the racial case... but don't worry! There's plenty for everyone!)

Anti-white hate crimes are reported by the UCR and by the NCVS (as well as by the State of California) between about 5% and 21%... perhaps higher. (The NCVS doesn't give enough info to determine which white victims of hate crime were victims of anti-white hate crimes.)

(Interestingly, about 1.5% of the 2007 crimes the State of California reports as hate crimes are anti-Christian hate crimes, though (of course) a larger percentage, 9%, are anti-Jewish. By contrast, LA reports about 8% of all hate crimes reported there in 2007 were anti-Christian. (Again Anti-Jewish hate crimes were a much higher percentage))

(Also interestingly, the percentage of hate crimes that are anti-heterosexual hate crimes appears to be very low... California has it at less than 1%, which is about what is reported elsewhere. Shocker!)

There are vast gaps between the reported incidence of hate crimes and their prosecution. For example, the State of California reports that there were about 1200 hate crimes in 2007. About 200 of these were prosecuted successfully. [Virtually all of the cases prosecuted produced convictions]. So many hate crimes go un-prosecuted. Anecdotes of the form 'Here is a hate crime that was not prosecuted as such' are, therefore, not going to do any good here.

Alas, it is very hard to find data on whether prosecutors are more likely to prosecute, e.g., white on black anti-black hate crimes than black on white anti-white hate crimes. However, given that
crimes against white people are generally more likely to be prosecuted than crimes against black people, there is reason to think that prosecutors will not prosecute white on black anti-black hate crimes at higher rates than black on white anti-black hate crimes.

But now I'm having second thoughts about the relevance of this whole question... and am wishing I had asked Lydia to address that point.

Suppose that a gay person who commits an anti-heterosexual hate crime is a lot less likely to be convicted of it than a straight perpetrator of an anti-gay hate crime. This would be an unfortunate thing (especially given the widespread victimization straight people suffer!). But, if hate crime ought to be punished as such, then the straight people who commit anti-gay hate crimes receive punishment get what they deserve -- even while, unfairly, the gay people are getting off. That is, the proposition that people who commit a certain kind of crime deserve a given penalty is compatible with the proposition that there is injustice in the distribution of penalties among those guilty of that crime.

...or else God help the advocate of the death penalty! ...or so that Satanist in the Comp Lit Department tells me... and who am I to doubt her word?

Mike, what would be the point? The state is going for the death penalty and has listed several enhancements to that end. In California, hate crimes, as I recall, allow only for a maximum of life w/o parole when used as an enhancement in a first degree murder case. Multiple murders, burglary, robbery, and rape by instrumentality should be all that is needed.

The point, Al, is that it was obviously a hate crime. The prosecutor did not have to tack on the charges per se, but in cases like this they would have us believe that black racism is not a motivator.

That is why I don't trust their statistics. That, and the fact that on other major statistics like the Consumer Price Index the art of statistical fraud is practiced with incredible finesse.

I haven't read this entire thread carefully, so maybe I'm wrong about this, but it seems to me that there are two main sources of opposition to hate-crime legislation have cropped up. One is that hate-crime legislation favors liberal pet groups and projects at the expense of conservatives and their ideals. The other is that all violence is equal, and hate-crime legislation treats some acts of violence as worse than others in an illegitimate way.

I think both criticisms miss the point of hate-crime legislation. The point of hate-crime legislation is not that violence against gays or blacks is somehow intrinsically worse or more egregious than violence against straight, conservative white people. Nor is it that liberals like gays and blacks more than whites. The point of hate-crime legislation is that violence against blacks, women, gays, et al. is, in a deep way, part of American culture, and that it ought not to be. Violence in which a black person happens to be a victim is one thing; violence that stems from that segment of American culture that seeks to intimidate and disenfranchise black people is another, and is worse, and it is not illegitimate to for criminal law to address this fact. The government has a legitimate role in addressing these segments of our culture, and in protecting vulnerable members of the public from them. The fact that some groups and not others are mentioned in hate-crime statutes does not mean that they are special; it means that they are especially vulnerable.

Maybe hate-crime legislation is not the best way to accomplish this goal. If not, it would be nice if you had a better suggestion. Maybe there are vulnerable groups who are not covered by hate-crime legislation. If so, you should probably draft a petition and start collecting signatures.

Well, Mr. Zero, I appreciate the unintentional assist--that is, the open admission that "hate crimes" laws are not intended to protect _anyone_ against crimes on the basis of racial animus (for example) but to protect specially groups perceived as "vulnerable" by the left. Your probable political allies up above have been attempting, as far as I can tell, to imply that "hate crimes" legislation isn't about special protection for blacks, homosexuals, etc., more than for whites and heterosexuals, etc., but that in fact "hate crimes" charges are being preferred _at least_ even-handedly when bias-motivated crimes are perpetrated against people (such as white heterosexuals) who do not fall into liberal mascot groups as when perpetrated against those who do fall into such "vulnerable" groups. Voila. Paul's point: An equal protection issue. That "equal protection of the laws" stuff wasn't supposed to mean, "And also extra super-duper protection via special penalties on behalf of groups we define as 'vulnerable'."

Dr. McGrew,

Suppose white heterosexuals are vulnerable to hate crimes in the same way that gays and african americans are. Then perhaps hate-crime laws violate the equal protection clause; the solution, however, would be to amend hate-crime laws to reflect the fact that white heterosexuals are vulnerable to hate crimes. To repeal all hate-crime legislation simply because white heterosexuals are vulnerable to hate crimes would be a baby/bathwater kind of a thing.

Suppose that white heterosexuals are not vulnerable to hate crimes in the same way that gays and african americans are. That is not a reason to think hate crime laws violate the equal protection clause. Such a narrow interpretation of the clause would, for example, preclude the Army Corps of Engineers from building and maintaining the New Orleans levee system because not everyone is vulnerable the floodwaters of the Mississippi River. The idea that the 14th Amendment forbids the government from addressing a problem unless all citizens are equally vulnerable to it is pretty silly.

The wording of the legislation is such that _supposedly_ it protects members of any race in this special way. _On its face_ it gives the extra treatment for any crime perpetrated for a particular type of motive, which motive is defined as (for example) bias or animus on the basis of race. Race, period. But we all know that isn't the real deal and isn't the real legislative history and motive behind the legislation. Hence, the probable unequal application of the law, even when members of non-mascot groups _are_ the focus of "hate-motivated" crimes.

Alex: thanks for your interesting reply.

"Anti-white hate crimes are reported by the...NCVS...between about 5% and 21% [of all hate crimes, I assume you mean?]... perhaps higher. (The NCVS doesn't give enough info to determine which white victims of hate crime were victims of anti-white hate crimes.)"

Sorry, I guess I didn't provide enough information for you to find your way to the relevant document. So let's just go straight there:

"Hate Crime Reported by Victims and Police"

I'm now working on a big post about all this, but it will take me another day or two - so please bear with me.

Sorry. That para. had some typos in it and was meant to report the results of the NCVS, the UCR, and the California State reports. But, half way through writing it, I had difficulty finding the NCVS data. At any rate, it ended up not being consistently interpretable.

Your assumption that these are supposed to be percentages of the total # of hate reported crimes is correct.

The numbers 5% and 21% did not come from the NCVS, which, as far as I could tell, "doesn't give enough info to determine which white victims of hate crime were victims of anti-white hate crimes."

I looked at the document you linked to, but it puts together estimates based on (it is not clear how) data from the both the NCVS and UCR.

Page 6, lower right-hand corner, looks relevant... suggesting that about 55% of all anti-race/ethnicity hate crimes are anti-white hate crimes. This is a percentage not of the total # of reported hate crimes, but of those that are racially motivated -- which are about 55%... so of all hate crimes, one supposes, about 25% are anti-white hate crimes -- which matches other sources.

OTOH, the little table reporting this info is a bit confusing: it appears to report that the percentage of all racially motivated hate crime that is anti-black hate crime is 50%... but then this percentage has the following footnote: "Estimate is based on 10 or fewer cases." (This probablymeans that the data is coming from the NCVS, which has failed to generate a representative sample. They only survey 76,000 households.)

So I (if I had to guess) this figure, 25%, is coming from the NCVS and not from both the UCR and NCVS... so the reported range goes from 5% to 25%, with most reports putting the figure around 20-25%. This makes the figures below 10% - coming from California - look problematic. Maybe there is evidence for Lydia's claim in this discrepancy. Or maybe California is somehow different from other states... perhaps, for example, the kind of people who would attack white people because of their race, are too busy attacking Hispanic people because of their ethnicity.

Suppose white heterosexuals are vulnerable to hate crimes in the same way that gays and african americans are. Then perhaps hate-crime laws violate the equal protection clause; the solution, however, would be to amend hate-crime laws to reflect the fact that white heterosexuals are vulnerable to hate crimes. To repeal all hate-crime legislation simply because white heterosexuals are vulnerable to hate crimes would be a baby/bathwater kind of a thing.

That's all well and good except for a few points:

1) The laws are already color blind.

2) The government abjectly refuses to enforce them evenly.

Appeals to "well let's campaign to get them enforced evenly" are childish. Only the naive believe that popular movements actually reform that sort of behavior. The choice is between either keeping the laws on the books or having them enforced very unevenly.

"Appeals to "well let's campaign to get them enforced evenly" are childish. Only the naive believe that popular movements actually reform that sort of behavior. The choice is between either keeping the laws on the books or having them enforced very unevenly."

OK... so which way does Mike T incline? The mere fact that a law is very unevenly enforced shouldn't lead us to repeal a law.

Many laws are probably enforced very unevenly -- being policed, prosecuted, and successfully prosecuted in ways that depend on legally and morally irrelevant differences between perps.

...or do you advocate anarchy?

It seems to me that since uneven enforcement of the laws is a bad thing (and unjust thing, probably), and since anarchy is not an appealing alternative, we ought to campaign to increase the even-ness of the enforcement of the laws.

Will this succeed? Probably not. But it may well improve things. At any rate, in general it is our only reasonable policy... unless we have independent reason to think the law in question is unjust.

These particular laws bore on the face of their entire history and impetus the fact that *of course* they would be enforced preferentially in favor of the "vulnerable"--aka liberal mascot groups--that they were, in fact, intended to be used as instruments of societal engineering regarding whole thought patterns, many of which are *not wrong* thought patterns, I might add, in a leftist direction. Anyone who does not admit this is either a fool or dishonest. Of course they should be repealed or never passed. As long as they remain on the books, however, the only possible way to resist the obvious historical intent is to hold to the fire the feet of police and prosecutors and to expose their blatant dishonesty when they say they "found no evidence of a hate crime" in cases that obviously are indeed "hate crimes" under the facial meaning of the law.

I would be wary of taking survey data that depends on "victim" evaluation at face value. For example, we have had two examples of hate crimes that are problematic. The so called intimidation of a restaurant owner simply wasn't a crime and was unclear and unneeded in the double murder case.

We are lucky that folks like Wilberforce, Douglas, and King didn't share Mike's pessimism as to the possibility of improving things.

"These particular laws bore on the face of their entire history and impetus the fact that *of course* they would be enforced preferentially in favor of the "vulnerable"--aka liberal mascot groups--that they were, in fact, intended to be used as instruments of societal engineering regarding whole thought patterns,"

Perhaps some conservatives would rather ignore a huge chunk of that history,

http://digitaljournalist.org/issue0309/lm18.html

"Anyone who does not admit this is either a fool or dishonest."

And anyone who asserts it is either ignorant or deranged or maybe we just disagree.

so called intimidation of a restaurant owner simply wasn't a crime

I guess "so-called intimidation" isn't a crime, but real intimidation is. Occupying a place of business and refusing to leave until the owner apologizes is at least one crime (civil trespass) and probably is several other crimes as well.

Many crimes have been committed against opponents of Prop. 8. Here is a discussion of some of them, just recently out.

http://www.catholicnewsagency.com/new.php?n=17566

If you ardent homosexual activists keep going the way you are going, you are going to have plenty of "history" of your own to be ashamed of. But you probably won't. Be ashamed, that is.

The real truth is, Al, you just don't like the way I put it, because I'm unsympathetic. If I had put essentially the same semantic content in positive terms like "changing negative societal stereotypes," "protecting the vulnerable who are targets of hate and bigotry" as opposed to "those in positions of historic privilege who do not need such protection" and "fighting racism, sexism, and homophobia," you wouldn't have a problem with it.

Liberals are like this generally. If you tell them what they are up to in terms that sound disapproving, they will tell you that you are lying, misrepresenting, being deranged or ignorant, etc. But when they talk to each other or to a presumptively sympathetic audience, they admit outright that they are out to do exactly those things that the conservatives accused them of, and then it's okay to say it. This is an old, old trick and just appears humorous to me anymore.

Conservatives are like this generally. If you tell them what they are up to in terms that sound disapproving, they will tell you that you are lying, misrepresenting, being deranged or ignorant, etc. But when they talk to each other or to a presumptively sympathetic audience, they admit outright that they are out to do exactly those things that the liberals accused them of, and then it's okay to say it. This is an old, old trick and it is obnoxious and ought to stop.

Alex - my "big post" about all this is getting so long, and costing me so much effort, that I'm thinking of submitting it for publication elsewhere.

But, before I do that, I'd like to get a contrarian review. If you'd be willing to vet it for me, please contact me at:

stephanlburton@embarqmail.com

Sorry, that should have been "proponents" not "opponents" in my comment at 5:02.

"Occupying a place of business and refusing to leave until the owner apologizes is at least one crime (civil trespass) and probably is several other crimes as well."

You might want to check your sources on this as the owners of El Coyote invited the folks who were there into the restaurant for a meeting. They were trying to avoid a boycott as the area of Los Angeles in which the restaurant is located is heavily populated with gay folk. You are not trespassing if you are invited in; I have seen no indication that they were asked to leave and refused or that the police were called. And, of course, even if they had been trespassing you wouldn't have had a hate crime, you would have trespassing as political position isn't a protected category.

So, here we are, zero hate crimes to make your point

Your correction, Lydia, brought me to your comment as well as the link you provided. Whoa--that information will most certainly NOT make it into the mainstream media news, will it?

There's a story in and of itself. Just letting you know I'm providing that link to a number of bloggers who may want to write up about it.

Your correction, Lydia, brought me to your comment as well as the link you provided. Whoa--that information will most certainly NOT make it into the mainstream media news, will it?

There's a story in and of itself. Just letting you know I'm providing that link to a number of bloggers who may want to write up about it.

you would have trespassing as political position isn't a protected category.

That was kind of my point. Or one of them. But I don't expect the liberals to see the significance of it, not even given their whining about "not being able to exercise one's civil rights."

OK... so which way does Mike T incline? The mere fact that a law is very unevenly enforced shouldn't lead us to repeal a law.

Many laws are probably enforced very unevenly -- being policed, prosecuted, and successfully prosecuted in ways that depend on legally and morally irrelevant differences between perps.

...or do you advocate anarchy?

There is a difference between incidental uneven enforcement and enforcement of the law with the specific, malicious goal of not enforcing it fairly, which government does with hate crime laws.

I would also add that a society which freely violates the rule of law with impunity is already functioning in a state of anarchy since the government is operating under the principle of "he with the most guns makes the rules and tells others what to do." It's nothing more than the bourgeois version of living in a gang-controlled suburb.

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