In a recent comment, I indicated that I am a liberal before I am a progressive. That has certain consequences for my thinking about issues like “hate crimes” legislation.
H.R. 1592 passed the House of Representatives on a 237 – 180 roll call vote yesterday. The text of the legislation adds the following hate crime acts:
(a) In General-
`(1) OFFENSES INVOLVING ACTUAL OR PERCEIVED RACE, COLOR, RELIGION, OR NATIONAL ORIGIN- Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person–
`(A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and
`(B) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if–
`(i) death results from the offense; or
`(ii) the offense includes kidnaping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.
`(2) OFFENSES INVOLVING ACTUAL OR PERCEIVED RELIGION, NATIONAL ORIGIN, GENDER, SEXUAL ORIENTATION, GENDER IDENTITY, OR DISABILITY-
`(A) IN GENERAL- Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B), willfully causes bodily injury to any person or, through the use of fire, a firearm, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person–
`(i) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and
`(ii) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if–
`(I) death results from the offense; or
`(II) the offense includes kidnaping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.
`(B) CIRCUMSTANCES DESCRIBED- For purposes of subparagraph (A), the circumstances described in this subparagraph are that–
`(i) the conduct described in subparagraph (A) occurs during the course of, or as the result of, the travel of the defendant or the victim–
`(I) across a State line or national border; or
`(II) using a channel, facility, or instrumentality of interstate or foreign commerce;
`(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct described in subparagraph (A);
`(iii) in connection with the conduct described in subparagraph (A), the defendant employs a firearm, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or
`(iv) the conduct described in subparagraph (A)–
`(I) interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or
`(II) otherwise affects interstate or foreign commerce.
This “hate crimes” legislation is unnecessary. Assault, aggravated assault, kidnapping, attempted kidnapping, sexual abuse, aggravated sexual abuse, rape, murder and attempted murder — the acts necessary for hate crimes prosecution — are already crimes that can be prosecuted, and which upon conviction result in similar sentences.
Discussion of certification requirements under Section 6 of the Act seem to permit federal hate crimes prosecutions for thinking something, on top of simple state prosecutions for the act of behavioral violence itself. This double prosecution would possibly add on additional years of imprisonment, but would not create new imprisonment where none existed previously.
This brings us to the anti-constitutional nature of the “hate crimes” legislation. The equal protection clause of the 14th Amendment to the Constitution seems to me to be violated here when it sets up certain classes of people who are extra-protected when it comes to motivated crimes against them, while neglecting other classes of people who are not as fully protected when a motivated crime occurs against them. What about a crime against a soldier when the criminal is motivated by hatred of soldiers? What about a crime against a police officer when the criminal is motivated by hatred of “the pigs”? What about a crime against an elderly person when the criminal is motivated by hatred of elderly people? These are just as much “hate crimes,” in the sense that they are crimes motivated by hate. Republicans in the House tried to add clauses to the bill which would include these classes of people in “hate crimes” protection, but Democrats voted them down. Why? Because hate against some kinds of people is more acceptable as a criminal motivator? If a person who votes against hate crimes legislation involving gender identity hates gay people, then doesn’t John Conyers hate grannies for voting against the addition of age bias as a qualifier? Is it OK to hate a soldier when you assault her, but not OK to hate a gay man when you assault him? Why?
What a mess of a values war to be engaged in. Why not stick to allowing people all the thoughts of hatred they can fit in their heads, and jailing people when they engage in the acts of assault, kidnap, rape and murder? It’s consistent and it achieves the result of equal protection, unless you really believe that we must be protected against others’ thoughts, in which case you have a serious problem with the constitutional basis of American society.
People who engage in the violent crimes named in the bill are already punished, and this bill protects certain classes of people more than others. This is precisely the sort of legislation of moral values that drives us all batty when the Republicans try it (hello, unequal treatment under law in the Defense of Marriage Act!). Why not permit conservatives to push their thought standards down our throats when progressives try to mandate other standards of thought? Avoiding the mess of competing thought-crimes is a good reason for the existence of the 1st and 14th Amendments, and the existence of laws against violent behavior make “hate crimes” unnecessary.
What gets me is that the so-called religious right is opposed to this. How the hell can a priest or minister, professing to act like Jesus, NOT support a hate crimes bill? The religious segment of society is no better than the rest of the imbeciles that make up the citizenry.
I’m with you on this one, Jim. Is assault less hateful, just because it’s not racist or sexist? Punish the crime, and leave intentions out of it.
The counterargument is that, when local law enforcement shares the criminal’s hatred, they can go unpunished. These laws allow federal prosecutors to step in when the locals won’t do their jobs.
Personally, though, I think there are better ways to solve this problem. We could allow any citizen to call for a federal investigation of any violent crime; or we could allow citizens to bring private prosecutions, as was done in England prior to the late 19th century. Either of those would solve the problem of prosecutorial discrimination, without creating special classes of protected people.
No, a hate crime is different from an ordinary crime because its intention is to deprive a person or group of people of their rights. Obviously a dead person doesn’t have any rights whether they were killed as a result of prejudice or were just in the wrong place at the wrong time, but consider the intimidation effect of killing someone just becasue they are black or just because they are gay. If people are being targeted because of what group they were born into, it can have a chilling effect on a whole community beyond the aspect of the original crime. The underlying motive for this might be either some kind of attempt to eliminate a group of people by killing them off one by one, or to impose a special behaviour on a group of people by intimidation (i.e. keep them from working in a certain neighborhood, or teach them “their place”).
The way I’m reading it, the only time the law would come into force is if state or local law enforcement did not intend to prosecute a crime.
As far as the statement that the law “seem to permit federal hate crimes prosecutions for thinking something,”…no, I’m not buying the ‘thoughtcrime argument’. It’s pretty clear that this only applies when there is physical harm or an attempt to physical harm:
Section 6 is equally clear that hate speech by itself is not covered here, it has to be along with the bodily injury:
So in other words, just killing a black person (or white person)isn’t a hate crime, they might just have been in the wrong place at the wrong time when someone flipped. But if someone says “nigger” or “honkey” or “faggot” then kills someone, this would speak to the motive of the killer.
Adding police or soldiers to the bill?..hmmm, I think those are occupations rather than classifications of people. Age bias is harder to classify. I once was in a theater when a trailer for a comedy was shown of an elderly person with a walker being harmed in a horrible fashion while the crowd laughed hysterically. Made me uncomfortable to be in the same room with those people, but limiting age discrimination has not enjoyed the same success in the courts as other kinds of discrimination. The bill is probably a reflection of current social perceptions as well as the frequency of certain types of hate crimes.
Some churches are telling people they could be prosecuted under this law just for reading the Bible in church. No, no, and no. That is a lie. Others are saying is is an attempt to erode religion. Heaven forbid murder should be illegal, then later someone might attempt to stop hate speech…the Prince of Peace could be out of business in no time!
John’s “private prosecution” theory is a red herring. The people who can afford lawyers are not the disenfranchised who are likely to be targeted by hate groups. Hate crime needs to be a crime against the state, not just a crime when it is against someone who can afford to have the law enforced.
Yesterday, Bush’s justification for the upcoming veto complained that the bill does not cover crimes against the elderly, members of the military, police officers, and victims of prior crimes.
Yesterday, Lamar Smith (R-TX), moved to include this language in the bill — to protect the elderly and the military — and his request to recommit to committee was countered with an offer to immediately amend the language of the bill by unanimous consent.
He refused. He wanted to send the bill back to the committee, not actually protect the seniors and soldiers. His constituents should be made aware of such political stupidity. I’ve recorded the transcripts from the Congressional record, if anyone is interested in viewing it, HERE.
Special protection for soldiers? It’s more like we need special protection FROM soldiers, given how many are coming back with severe mental illness, combined with training in how to kill.
but Democrats voted them down.
Actually, when the Republicans suggested the addition of the elderly and police, Conyers said, ok, we’ll add them. The GOP then voted against the bill anyway.
Ambivalence abounds in discussions about hate crimes. Or at least it should. Far too many people think that “hate crime” is a clear cut issue when it is hardly the case. The difficulty comes in setting up conditions wherein the government — all branches — is compelled to know or to think it knows the thinking of a particular perpetrator. This is a slippery slope, people. I don’t want any government agency acting as though it knows the thinking any citizen. Law enforcement should be — must be — based on evidence. Once we move from laws based on factual evidence and start plunging the depths of psychology to in order to determine guilt or innocence, the potential for government perfidy becomes unbounded.
It’s not necessary to “plumb any depths of psychology”. It’s only necessary to listen to what the perpetrator is saying.
I was once jumped by three black guys who hijacked the car I was driving and totaled it. The statement they made to the PROSECUTOR was that they went to my neighborhood because they wanted to commit a crime against a white woman, because white women were easy targets. Even though this was quite obviously–to me a least–a hate crime, and the perpetrators had rap sheets involving autos, they just got a slap on the wrist. When I went to move, guess what, a car full of black kids with caps (the direction of the bill of the cap indicated which gang they belonged to) was stalking me as I loaded stuff into the car. I guess the word was still out on the street that targeting white women in my racially mixed neighborhood was an easy game, and that the only risk in this type of personally dangerous assault based on racial profiling was in getting another car theft tick added to your rap sheet. BTW, that neighborhood has now “resegregated” and only blacks can and do live there.
I’m sorry for you experience. That, indeed, sounds dreadful.
But even your example smacks of uncertainty as to whether this was “hate” or not. Targeting a certain demographic because the perps perceive that demographic as being an easy target does not, in and of itself, strike me as “hate,” per se. I know it may feel that way and certainly if the attack was accompanied by racial epithets, it will certainly feel that way. But is profiling a certain population as an easy target filled with hate or is it just thought to be easy money? I am not at all sure that is clear.
But the larger concern is that, given what we know about the Bush administration and its politicization of the Justice Department, I sure as hell don’t want such a compromised department deciding what people are thinking and being able to prosecute for that. They’ve already demonstrated that they will bring phony indictments for political expediency and I think a hate crime law would only give them more tools to do so. Phony voter fraud could be prosecuted with extra vigor because the DoJ could claim that the fraud was done with “hate” of the opposition.
I am not saying that such a law is not without good intentions. But the road to hell is always paved with good intentions.
What is uncertain about it? What money could possibly be involved? They said to each other “let’s go to a white neighborhood and find someone who is a)white and b) female and assault her in her car and go joyriding. Then they drove the car until they totaled it–about three blocks. Then they told the prosecutor they attacked me because I was a)white and b) female. If convenience was what they wanted, don’t tell me they couldn’t have found a more convenient target in their own neighborhood. They went more than thirty blocks out of their way to find a target that was white. I am very fortunate that my injuries were not more serious.
And how on earth does voter fraud qualify as “bodily injury”? With firearms and incendiaries, no less. You seem to be buying the rightwing fruitcake explanation of the bill being about thought and speech. Read the bill. It’s about BODILY INJURY.
Tell me, has any of those phoney indictments stuck? You stop phoney indictments by stopping phoney indictments, not by encouraging hate crimes.
I agree that this kind of legislation smacks of thought-punishment. The supreme court has upheld it though, insofar as penalty enhancements are concerned. Personally, I think penalty enhancements are just a roundabout way of classifying a new crime (remember the case of Sullivan, where the court found that excessive defamation *penalties* were tantamount to an outright prohibition on free speech)
I find the whole concept of hate crimes to be disturbing. But the difficulty in attacking hate crime legislation on a free speech basis is that “speech” as it is traditionally known is not involved, and the expressive conduct of an assault is entirely unprotected as a matter of speech. However, I wouldn’t be surprised if this law ran into some trouble with the RAV holding (which makes it unconstitutional to proscribe only *some* unprotected speech– no “playing favorites” with protected classes), and I hope the Alito/Roberts/Scalia court will see it that way.
I also agree this is unnecessary. Judges have sentencing discretion in most cases, and can enhance the sentence if they feel the crime is a particularly egregious assault (ex. one done without remorse, or out of pure racial hatred). I can only hope, for now, that prosecutorial discretion holds back hate crime indictments. The problem is that, over time, communities will become aware of the hate crime legislation and clamor for it; most DA offices are very political and dedicated to being “tough on crime”… cue the hate crime bonanza!
I wanted to add one other thing. We DO punish people for their thoughts; note the distinctions between first degree murder, manslaughter, and various other crimes turn on mental states like intent, inflamed passion, premeditation, and so on. The problem with inquiring into the validity of a “hate crime”, imo, is that while intent/premeditation etc are legal terms of art developed in a highly specialized profession, the concept of hate is decidedly difficult to pin down. At what point does dislike become hate? How about antipathy or resentment? I know the statutes attempt to clarify these standards, but imo the elasticity of language makes the “hate content” of a person’s mind something i’d rather NOT have the judicial system delving into.