Dispatches from the Culture Wars

> There were no hate crime charges

Good, people shouldn't be convicted for the thoughts in their heads. That said I hope they get the maximum sentence possible.

In fact what should happen is they should be taken on day release to each of the high schools in that part of the state and shown off in school assembly to say "this is what happens is you assault people" (regardless of the reason why).

Posted by: David Durant | June 19, 2008 10:05 AM

Sounds about right to me.

Posted by: Gretchen | June 19, 2008 10:42 AM

Whatever the punishment I just hope the girls are able to learn why what they did was wrong. They seem so proud of it in their video and it just breaks my heart.

Posted by: Abby Normal | June 19, 2008 11:10 AM

people shouldn't be convicted for the thoughts in their heads

The thoughts in their heads? No. Nor the words in their mouths, exactly. The fact that those words were shouted while beating on another girl and recording the whole incident so they could post it on youtube as a boast about how they'd put an uppity lesbian in her place, thus intimidating some and inciting others? Possibly worth some consideration.

Still, I'm with the rest of you; if they're actually convicted and actually get this sentence, I'll be satisfied. As Raging Bee said, it's good that the Authorities demonstrated they were willing to protect even people they didn't like.

acknowledging that if they have no prior record we're looking at a couple of weekends in detention and then probation.

If they have no prior record, you can bet your hard-earned dollar that it's only because their earlier victims didn't call the cops. Nobody posts a beat-down on youtube as their first crime.

Would their school disciplinary records be considered during sentencing? Could the prosecution bring character witnesses?

Posted by: Seraph | June 19, 2008 11:22 AM

What do you suppose is the lesson these girls will take home?

That assault is wrong? (Probably.)

That hating gays is wrong? (Not likely.)

That hating gays is not as bad as getting caught when assaulting them? (Bingo)

If we actually believe that one of the roles of our criminal justice system is rehabilitation, then would it not make sense to ensure that the girls receive reprogramming on the actual cause of their crime? And that would be their homophobia?

Without some sort of hate crime penalty or categorization of their crime, the only rehabilitation scheme they will receive is for the assault. Is this what we want as a society?

When we dismiss the applicability of hate crime legislation too readily, and wish only that the girls be adjudicated for the assault, are we really not missing the whole point?

Posted by: Gingerbaker | June 19, 2008 11:25 AM

If we actually believe that one of the roles of our criminal justice system is rehabilitation, then would it not make sense to ensure that the girls receive reprogramming on the actual cause of their crime?

Anyone else getting Clockwork Orange shivers?

Teaching them that violence and intimidation are not acceptable ways of expressing themselves is good enough for me. If they learn to be tolerant of my homosexuality, I'll be tolerant of their homophobia.

Posted by: Abby Normal | June 19, 2008 11:36 AM

Abby said:

"Anyone else getting Clockwork Orange shivers?

Teaching them that violence and intimidation are not acceptable ways of expressing themselves is good enough for me. If they learn to be tolerant of my homosexuality, I'll be tolerant of their homophobia."

What will make them tolerant of your homosexuality if society tells them that it is only their violence which was wrong?

Of course, Clockwork Orange behavioral modification doesn't go far enough for my tastes. I am calling for prefrontal lobotomy, implants to stimulate brain pain pathways in the field, and imprisonment and torture of family members when thought patterns indicative of homophobia are remotely detected.;D

Or even worse - a classroom course, say, along the lines of what drunken drivers suffer through.

Posted by: Gingerbaker | June 19, 2008 12:13 PM

Bravo, Abby, and well said!

What will make them tolerant of your homosexuality if society tells them that it is only their violence which was wrong?

"Tolerant" does not mean "accepting". The government has no business telling these girls that they must accept homosexuality, only that they must channel their disagreement into socially acceptable avenues like speech. I reserve the right to hate what and whom I please, and you should too.

Posted by: Shygetz | June 19, 2008 12:23 PM

"The government has no business telling these girls that they must accept homosexuality, only that they must channel their disagreement into socially acceptable avenues like speech"

So the Government has no business in trying to create a society with more acceptance of others ? What a stupid thing to say. It is exactly one of the things a government should be doing. Indeed governments are required to do so, if they have signed up to the UN declaration on Human Rights. I do not know where you live, but your Government is not part of the UN.

Posted by: John Doe | June 19, 2008 12:39 PM

Abby,

Why did you not bother linking to the UN Declaration on Human Rights, since it was that I mentioned, and not either the mission statement or mandate ? Are you unaware of the UN Declaration ? If so then I find that odd, since your Government (I assume you are a national of a signatory nature) is bound by its terms. If you really cannot be bothered to find out what your rights are under the law, you loose the right to complain when they get breached.

Posted by: John Doe | June 19, 2008 1:27 PM

http://www.unhchr.ch/udhr/lang/eng.htm

Since it proved to beyond Abby to link to it, because of ignorance, stupidity, incompetence or just her being dishonest we do not know, the link is above. It would seem the US contravenes a whole load of those articles.

Posted by: John Doe | June 19, 2008 1:30 PM

I also have problems with hate crime laws. To me, circumstances can only mitigate a crime, not make it worse. The default is that the crime was committed for no good reason. If it was committed because of race, gender, sexual orientation, creed, ethnicity, etc., that's still no good reason. And so the perpetrators should receive the maximum sentence. If they had picked this girl at random at beat her down for shits and giggles, would that make it less of a crime?

Posted by: Taz | June 19, 2008 1:34 PM

John Doe

Since it proved to beyond Abby to link to it, because of ignorance, stupidity, incompetence or just her being dishonest we do not know, the link is above.

Posted by: Taz | June 19, 2008 1:58 PM

John Doe,

I might be a little slow, can you point me to the article number which might outlaw bigotry?

Also, the posts have time stamps on them, it might have been a little quick to accuse Abby of idiocy, dishonesty, and ignorance for not posting a link a whole 3 minutes after you requested her to.

Posted by: Jackson | June 19, 2008 2:02 PM

Oh God, not this argument again. Didn't we just dance this number?

Yes, but you semed to have some trouble keeping up, so I'm dancing with someone else now. Sorry.

Posted by: Raging Bee | June 19, 2008 2:28 PM

John Doe - "...it's foolish to call someone an idiot for arguing that hate crime laws are a form of thought policing."

I'm not sure that calling someone an idiot is foolish (although you looked rather foolish when you called Abby Normal many other things in your earlier post) but hate crime laws are indeed attempts to enforce "thoughtcrimes".

Except in instances of self-defense beating the crap out of someone is already against the law. Hate crime legislation is an attempt to add additional penalties for what you were thinking while you were beating the crap out of someone.

Kersham - "Personally, I do not see why the government has any interest in making me believe in capitalism rather than communism, religion rather than non-religion, or whether the beer tastes great or is merely less filling." Well put Kersham.

Taz - "If they had picked this girl at random [and] beat her down for shits and giggles, would that make it less of a crime?" Only to people like John Doe that think they can legislate "correct" thinking.

Posted by: Lance | June 19, 2008 2:34 PM

Dave L.

The research you quote makes no attempt to legitimize hate crimes on their own merit. It only offers that they may be a way to get around seriously compromised regional justice systems.

This would appear to be a case of the medicine being worse than the disease as far as I'm concerned. If you have to craft unconstitutional laws to circumvent flawed regional judiciaries you are just avoiding addressing the real issue by introducing legislation that is flawed for other reasons.

Wouldn't it be wiser and more efficient to address the issue of the flawed local judicial system rather than attempting to inflict ad hoc extra-legal remedies that you hope will produce "ends justify the means" results?

Posted by: Lance | June 19, 2008 2:44 PM

Except in instances of self-defense beating the crap out of someone is already against the law. Hate crime legislation is an attempt to add additional penalties for what you were thinking while you were beating the crap out of someone.

As has already been clearly established here, hate-crime laws don't do this any more than other, older laws mandating punishment for such things as "assault with intent to kill/rape/maim," "posession with intent to distribute," "attempted murder," etc. I'm not asking anyone to agree with hate-crimes laws as currently written, only to talk honestly about them, and drop all the phony, self-righteous Randroid blithering about "criminalizing thought." Thoughts don't matter one bit, unless and until they're manifested in certain criminal acts.

Posted by: Raging Bee | June 19, 2008 2:47 PM

I agree with Abby.

Look, it's just not the government's place to tell people that they have to be accepting of gays as gays, blacks as blacks, Mexican-Americans as Mexican-Americans, etc... We all have rights based on the fact that we are citizens. That's enough.

How would you feel if the government spent your tax dollars to educate you on how wrong your prejudices against, say, Republicans or Christian fundamentalists are? If you had to pay money to be told that your assumptiont that Creationists are too dumb to understand science is a vicious, vicious and hateful stereotype for which you should be ashamed!

How sad that the very people who want to kick the government out of our bedrooms also want to invite the government into our heads.

Posted by: Marc | June 19, 2008 2:59 PM

As has already been clearly established here, hate-crime laws don't do this any more than other, older laws mandating punishment for such things as "assault with intent to kill/rape/maim,"

But there are still important distinctions to be made. All the thoughts you mention are "intent to do X", where X is in itself already recognized as a crime. You fill in X with the values kill, rape, maim, distribute, murder. These are all in themselves already recognized as crimes.

The thought in hate crime is quite different. The common thought in hate crime is, "because the target is X". Notice the completely different form of thought. It's not an intent to do something further, and X is not a further crime (it's a category of person).

Now, you might like to argue that in some cases hate crimes take the form "with intent to X", where X is considered in itself a crime. But I would argue that in those cases, if X is indeed already itself considered a crime, then in all likelihood the legal system already takes it into account! Rendering hate crime superfluous here as well.

Posted by: Constant | June 19, 2008 3:02 PM

What is going on in this country that all these girls are beating the living sh*t out of each other? We just had a case here a few weeks ago in which a girl was at a restaurant and saw some girls come in that were trouble to her. She called her mom to pick her up. Somehow one of the girls in that group convinced her that her mom was out front and they got her to leave the restaurant. In the end she was beaten so badly she had to be air-lifted to Chicago, was partially paralized for a number of days, and mentally regressed to when she was seven. (She is 14 or 15). From what I've seen in the paper she's doing much better now; although I was on vacation last week and missed some of the stories. Although I did see where people must be calling into the anonymous call in/opinion section and saying, "Yeah, but you don't know both sides of the story. Maybe she deserved it!" Idiots!

The reason for the beating? The girl's parents wouldn't let her date the brother of the attacker because she was too young to date.

Really it doesn't matter why any of these girls were beaten. Something is wrong in our society when people think it is okay to attack someone for being different.

BTW that girl who attacked has been moved into the adult justice system. Her name has been released due to the severity of the crime, even though she is only 15.

Posted by: Rev. AJB | June 19, 2008 3:11 PM

Lance - as reasonable as like to I think I am, I find it reassuring that someone else independently has the same thought.

Posted by: Constant | June 19, 2008 3:31 PM

But there are still important distinctions to be made. All the thoughts you mention are "intent to do X", where X is in itself already recognized as a crime.

The thought or desire to commit a crime is not itself any more illegal than any other thought. By the "logic" (or rather, the obfuscating rhetoric) used here to attack hate-crimes laws, any law that takes "intent" into account is "criminalizing perfectly legal thoughts." If this rhetoric applies to hate-crimes laws, then it applies equally to all other laws that take intent into account. So no, the "important distinction" is neither.

Now, you might like to argue that in some cases hate crimes take the form "with intent to X", where X is considered in itself a crime. But I would argue that in those cases, if X is indeed already itself considered a crime, then in all likelihood the legal system already takes it into account! Rendering hate crime superfluous here as well.

The legal system may take it into account on paper; or it may not; and the officials whose decisions determine how the system applies in particular cases may NOT take it into account. And it is this lapse that hate-crimes laws are created to address. For example, if someone terrorizes a black family by vandalizing their home -- to the point where they feel they have to move out -- and only gets fined for misdemeanor vandalism, then he has, in effect, got a light sentence for a very serious and effective act of intimidation. Taking his intent into account would help to correct this injustice.

Are you now advocating that the thought involved in hate crimes such as hating homosexuals be a crime in and of itself. Please tell me how you would prove these "crimes".

I'm not talking about "thought," I'm talking about "intent." "Intent" is demonstrated, in large part, not only by what a reasonable person would construe from actions, but by the expected result of the actions. Burning a cross on a black person's front lawn is not merely an act of vandalism: it's also clearly intended to intimidate a black minority, as blacks, in order to limit their freedom and sense of security when in public among the white majority. A different act of vandalism in the same curcumstances is not expected to send the same message. Therefore, one act of vandalism can easily be considered a "hate-crime," while another may not.

Posted by: Raging Bee | June 19, 2008 3:49 PM

Raging Bee said:

By the "logic" (or rather, the obfuscating rhetoric) used here to attack hate-crimes laws, any law that takes "intent" into account is "criminalizing perfectly legal thoughts."

How do you manage to make such a statement in response to a post which entirely contradicts it? Constant made the distinction very clear to you-- you can't just toss that aside and pretend it wasn't mentioned.

Also, is it possible to have a reasonable disagreement on this issue-- that is, to politely discuss differences of opinion without accusing the other side of being dishonest? I think it is.

Posted by: Gretchen | June 19, 2008 3:59 PM

By the "logic" (or rather, the obfuscating rhetoric)

Well, you're not dealing seriously with my argument, and on top of that you're being insulting. Those two things often go together.

Posted by: Constant | June 19, 2008 4:02 PM

The thought in hate crime is quite different. The common thought in hate crime is, "because the target is X". Notice the completely different form of thought. It's not an intent to do something further, and X is not a further crime (it's a category of person).

The intent of most hate-crimes is not just "because the target is X," it's to use violence and/or intimidation to deprive persons of category X of their basic rights under the law, or to deprive them of the protection to which the law entitles them. And that IS illegal. So again, the distinction you're trying to make is imaginary.

Posted by: Raging Bee | June 19, 2008 4:12 PM

The intent of most hate-crimes is not just "because the target is X," it's to use violence and/or intimidation to deprive persons of category X of their basic rights under the law, or to deprive them of the protection to which the law entitles them. And that IS illegal. So again, the distinction you're trying to make is imaginary.

Every crime is an attempt to deprive someone of the protection to which the law entitles them. And how frightened a person is has no relation whatsoever to how many rights they have.

Posted by: Gretchen | June 19, 2008 4:17 PM

Lance said -
"Social engineering is not the purpose of our justice system nor do I think it should be. "

Eh? Social engineering is precisely the purpose our justice system. A criminal justice system attempts to alter the behavior of society with carefully calibrated classification of crimes, enforcement strategies, and a system of deterrents; this is social engineering.

Posted by: JY | June 19, 2008 4:32 PM

Now you have abandoned your original argument...

Which argument was that? I don't recall abandoning anything.

Perhaps I am less pessimistic about the state of American jurisprudence but I don't think attempts to force large scale social constructs onto society by means of an "end around" strategy is the answer to regional mores that I might find objectionable.

Didn't the segregationists say something similar when the Feds got involved in the forcible integration of public schools? Now that I think of it, didn't some Southerners say something similar when a bunch of out-of-towners started advocating the abolition of slavery?

The US is obligated, by law, to guarantee to all of its people "a republican form of government" and "equal protection of the laws." So there is a sound legal and philosophical basis for "forcing large scale social constructs onto society," when said "constructs" mean the basic rights guaranteed in the US Constitution.

Social engineering is not the purpose of our justice system nor do I think it should be.

Another vague, emotion-laden, Orwellian-sounding abstract phrase thown in to obfuscate, rather than to clarify. What, exactly, do you mean by "social engineering?" I'm referring to making laws that express our core values, and reminding people, by laws and education, how they are expected to behave toward one another. This is what governments have done -- and indeed the first reason why they're created -- for all of human history. Is this what you mean? Or something else?

Every crime is an attempt to deprive someone of the protection to which the law entitles them. And how frightened a person is has no relation whatsoever to how many rights they have.

Um...no, but how frightened they are does have a relation to whether they can exercise their rights without expecting extralegal retaliation. And how much fear a crime instills is a valid factor in deciding the severity of a crime, and the proper punishment.

Posted by: Raging Bee | June 19, 2008 4:41 PM

Way up thread, Abby said:

"There is a difference between the government taking the position that homophobia is wrong and society doing it."

There is also a difference between the government taking the position that homophobia is criminal and that it is wrong. The (US) Government is constrained from criminalizing thoughts, speech, etc., but isn't constrained from having an official position on issues like racism and homophobia, or creating programs to counteract racism or homophobia, including, perhaps, mandatory counseling for people convicted of race-related crimes just as mandatory counseling for alcoholism can be prescribed for people convicted of drunk driving. While there are certainly limits to what the government can do in 'reprogramming' people convicted of crimes, certainly telling a racist that his racism is wrong is well within those limits.

Posted by: JY | June 19, 2008 4:52 PM

JY said:

The (US) Government is constrained from criminalizing thoughts, speech, etc., but isn't constrained from having an official position on issues like racism and homophobia, or creating programs to counteract racism or homophobia, including, perhaps, mandatory counseling for people convicted of race-related crimes just as mandatory counseling for alcoholism can be prescribed for people convicted of drunk driving.

Perhaps not the best example there, JY. Driving drunk doesn't mean a person is an alcoholic, and the people I know who have been forced to attend classes which tell them they are have a unified response to it: they immediately want to go have a drink. I wouldn't be surprised in the slightest if forcing people to sit in a room and be lectured about their bigotry by the government would likewise have precisely the opposite reaction to what was intended. Just as the DARE program seems to make kids want to take drugs, and being lectured about abstinence makes them want to screw the first person they can find. ;-) Personally, I can say that the government telling me how I should feel about things would be first sign that I should be suspicious of whatever those things are!

Posted by: Gretchen | June 19, 2008 4:58 PM

How is beating someone up because they are gay different than beating them up because they are Jewish, or because they are black? How do we go about ranking some motives as worse than others? I would say that any such ranking would be arbitrary, if not monsterous. But if we don't rank in this manner we are basically saying that all these motives are the same, which renders extra punishment for some rather pointless, if not unjust.

Posted by: mschamis | June 19, 2008 5:05 PM

Gretchen, ya, I can see your point there. It's just the only reasonable defence for hate-crimes legeslation that I've heard. And as I said, it would not be true in every case where there is a crime against a member of the listed group, but would be in certain cases: i.e. beating up the jewish boy at school - not necessarily a hate crime, beating up that kid while screaming the nazis were right and drawing swastikas on him (which sadly, I've seen happen!) - hate crime.

I have problems balancing it in my head, specifically because the judicial system isn't about fairness under the law, it's about justice, which carries more connotations. Personally I want the kid who drew the swastikas in sharpie on my friend to get a stiffer punishment than fred who beat up joe for calling fred's sister fat. But is that because I'm more involved in the issue, or because I knew others who felt scared because of the vitriol that was spewed by swastika boy?

A judge adjudicating under the law doesn't always have the leeway to deal with one of those crimes as weightier than another, this is about giving them that clout so that they can ensure their communities feel safe and secure. I don't know if the stick is too big or the wrong tool for the job, but I haven't actually heard better ones put forward, so it's the only one I know of and until a better one comes along, I'll support it. Half-heartedly maybe, but I'll support it.

Posted by: kodiak | June 19, 2008 5:16 PM

Darn job, getting in the way of a good conversation. :-) Thanks to the folks who vouched for me. Validation is always nice. Though I did screw up with my links and John Doe was right to call me on it. So I can't fault him too much for the manner in which he did it. I hope that, like me, he's simply busy and hasn't abandoned this discussion.

Insofar as intent is a type of thought, how about instead of "criminalizing thought" we go with "criminalizing opinion" to illustrate the issue with hate-crime laws. Assault with intent to rape would therefore be a form of legitimately criminal thought. However, assault with intent to hate blacks would be an example of criminal opinion, which is where I take exception with the law. Does that sufficiently differentiate the two types of law?

I'm reposting my statements from another thread, because that one appears to be dead. Slight modifications have been made to make it more relevant and because my spelling sucks enraged donkey cock.

When two people commit the same crime and one gets a federally mandated additional penalty purely because it appears to be racially motivated then that additional penalty is punishing the racism. The fact that the person must first commit a crime before the government can invoke the additional penalty does not change that. But being racist is and should be legal.

Imagine if the government instituted greed-crime legislation. Anyone found guilty of committing a crime motivated by greed automatically had the duration of their sentence doubled. Would that be acceptable? How about lust-crime? Punishing motive in the way hate crime legislation does is a dangerous precedent.

Assault with intent to intimidate could be a possible alternative. The government would then need to prove that the action was intended to instill fear, either in the victim or the community. I could get behind that and it has the advantage of applying to everyone, not just protected classes. So in the example if he case that spawned this thread, this additional charge could be brought even though homosexuals are not a protected class in Michigan.

A couple people have brought up the reporting aspect of hate-crime laws. That is an aspect of the legislation I agree with. It's good and helpful to have a tally of this sort of crime and I don't see any it as an infringement of the perpetrators rights. It's only the mandatory additional punishment I'm at odds with.

I also agree with Raging Bee and DaveL's point that the uneven application of the law that existed before hate-crime legislation is a good reason for some form of action. But I would rather see some people go unpunished or under punished than see this kind of infringement on our rights. Isn't that the whole idea of innocent until proven guilty?

Do I have a perfect solution? No. It might be worth trying stronger penalties for dereliction for police officers who are shown to look the other way or keeping the federal reporting aspect of hate crimes and using it to identify problem areas for review. That's just off the top of my head. Still I don't think an alternative is required to see that the current laws are unethical and dangerous to liberty.

Posted by: Abby Normal | June 19, 2008 5:33 PM

JY said:

Gretchen, you miss the point. Whether or not a particular strategy is effective is not at issue. The Government can, without violating anyone's constitutional rights, send a convicted drunk driver to rehab as part of his sentence, and the Government can, without violating anyone's constitutional rights, try to address the source of another criminal's behavior if that source is racism, homophobia, or something else.

This is factually incorrect. What the government can do is offer the treatment as an option, with the other choice being a larger fine or more jail time.

That being said, there is a simpler alternative to the current debate. Always allow for a two part trial, first on the underlying charge, and then a sentencing phase in which aggravating and mitigating factors can be considered. That way you do not run the risk of convicting the Defendant of being an asshole, while society is still allowed to make a statement about what sorts of motivations it is willing to permit. It would drive the costs of the justice system up, but we spend something along the order of $50 billion on prisons, surely we could figure something out.

By the way, Raging Bee, this lawyer thinks your basic assertion is correct: Hate Crime laws do not criminalize thought unless we are willing to admit that the mens rea element in every crime does the same thing. My view is they just cause too many problems as currently configured.

Posted by: kehrsam | June 19, 2008 6:45 PM

kehrsham said:

Hate Crime laws do not criminalize thought unless we are willing to admit that the mens rea element in every crime does the same thing.

Mens rea (okay, I'm not a lawyer and I'm going by the discussion in that great online law library, Wikipedia) doesn't seem to be the same thing. The four elements of mens rea seem to deal with how culpable someone is for a crime based on whether it was purposeful and what the criminal knew about the effects of his actions. Hate crimes seem to deal with the 'why' or what motivated the crime to be committed, and I have trouble not seeing them as essentially criminalizing thought. From a mens rea, standpoint, the degree of intention I guess could be tied in with hating; a racist who attacks a minority is going to have trouble arguing it wasn't intentional given that he is a racist. But the intent is just as purposeful for someone who attacks someone because they're inadvertantly wearing gang colors.

Mens rea seems to address motive mainly to determine how intentional the crime was; once that level of intention is determined, mens rea doesn't seem to say anything about the criminality of various motives that all result in that same level of intent. But I'm going by a fairly unreliable source, and I suspect there's more to mens rea than what I gleaned from the Wiki entry.

Posted by: Spartan | June 19, 2008 7:31 PM

How do we usually determine if a Defendant has the requisite mens rea for the crime? We infer it from her actions.

And I would agree that evidence of hate would meet that requisite handily. I'm just not seeing the comparison you're making between hate crimes and mens rea. If I kick you in the shin and you charge me with assault and in the search of my home they find my secret journal where I rail and rant about how I hate those wretched Southern Baptist lawyers because they make me spend evenings looking up law crap on Wikipedia when I could be watching the pikshur show on the tellie, you've pretty much sealed the mens rea requirement. But if S.B.l. were a protected class, I'd be guilty of a hate crime (I'm unclear on whether hate crimes are additional crimes tacked on, or harsher versions of the same crimes; 'first degree hate murder' vs 'first degree murder' and 'hate crime') purely for my opinion. The 'thought' is used to determine the requisite mens rea, but there are many thoughts that will achieve that; I don't see that type of thought as being analogous to one specific 'thought' being criminalized in conjunction with a crime.

Your Strict Liability and Inchoate crimes are definitely much better analogies (and I have to read more about the interesting 'impossibility defense'). You could say with conspiracy that it is a very stretched 'attempted' crime; I'm sure there are exceptions, but planning is many times a component also I believe. Hating is not necessarily anything but attempted hating, and I'm having trouble thinking of another instance where an opinion is a crime.

I'm sympathetic to the arguments for hate crimes. You can make almost the exact same arguments for crimes by serial killers and gangbangers for instance though, and hating is ultimately just an opinion.

Posted by: Spartan | June 19, 2008 9:14 PM

kehrsam said:

"This is factually incorrect. What the government can do is offer the treatment as an option, with the other choice being a larger fine or more jail time."

I'm really not sure the distinction you are trying to make. I said "The Government can, without violating anyone's constitutional rights, send a convicted drunk driver to rehab as part of his sentence...". Rehab certainly is part of the sentence, so you are saying, I guess, because the option of a stiffer, non-rehab sentence is involved, the government isn't actually 'sending' a convicted drunk driver to rehab? I don't agree with that reasoning, but the (in my mind equivalent) statement "The government can use coercion to get a convicted drunk driver into rehab" equally supports the point I was trying to make.

Posted by: JY | June 19, 2008 9:31 PM

I'm really not sure the distinction you are trying to make. I said "The Government can, without violating anyone's constitutional rights, send a convicted drunk driver to rehab as part of his sentence...". Rehab certainly is part of the sentence, so you are saying, I guess, because the option of a stiffer, non-rehab sentence is involved, the government isn't actually 'sending' a convicted drunk driver to rehab?

That's exactly what I'm saying: The judge cannot unilaterally send anyone to rehab, nor can she order anything short of the statutory punishment without the consent of both the state and the Defendant. The same is true for any alternate track adjudication. Generally the Defendant accepts rehab as part of a plea bargain to avoid time in the pokey. But the Defendant has the option of declining the alternative sentencing and accepting whatever the statutory alternative might be. Poor people take that option all the time.

Posted by: kehrsam | June 19, 2008 10:38 PM

kehrsam, IANAL, nor do I play one on TV, nevertheless I will hazard to guess that your analysis of how court-ordered rehab works is not universal across all jurisdictions. For example, my interpretation of this:

http://www.oasas.state.ny.us/regs/nyslaws/1198a.cfm

is that under certain circumstances the court has no choice but to order a convict (specifically, one who has 'failed' a mandatory substance abuse screening and has been sentenced to probation) into a substance abuse treatment program. In this case, this appears to be post-sentencing and not part of any plea bargain. Even under your interpretation of 'send' (which is far more narrow than mine), I would say that this qualifies.

Posted by: JY | June 19, 2008 11:27 PM

I'm a bit late to the party, but the real reason for hate crimes laws is not thought-policing, education, or anything like that. It's because, for a very long time, the situation was reversed. Beating up an "uppity" gay or black person led to lesser sentences or acquittals, than if that was done to a white/straight person, due to judges' or juries' prejudices. People came to the conclusion that that was a crap way to run a society, and decided that if you're so hateful that you take your prejudice to the extremes of assault or murder, you're going to pay more.

And don't pretend that the justice system doesn't "thought police" anyway. Let's take a look at two scenarios: you shoot your wife because you just caught her in bed with your brother vs you shoot your wife because you want her life insurance money. Your intent was the same, and the result was the same. But you're going to get a much longer sentence in the second case, based solely on what you were thinking when you did it. Because people who shoot loved ones for money are more dangerous than people who shoot loved ones in the heat of passion. And people who beat on other people because of their prejudices are more dangerous than people who pick bar fights.

Posted by: Brian | June 20, 2008 1:35 AM

Let's take a look at two scenarios: you shoot your wife because you just caught her in bed with your brother vs you shoot your wife because you want her life insurance money. Your intent was the same, and the result was the same. But you're going to get a much longer sentence in the second case, based solely on what you were thinking when you did it.

Actually, Brian, assuming both murders were planned or both murders were spontaneous, sentencing guidelines do not differentiate between the two murders. If one was planned and the other spontaneous, the law punishes the planning of the murder. It's still not punishing you for the thoughts in your head.

The closest thing I know of to the law punishing thoughts are "X with intent to Y" laws, in which case the law assumes that, given certain conditions (like posession of very large quantities of drugs and paraphanalia for dividing and selling those drugs), you were attempting to perform another crime.

IANAL, but to me, they both seem to be based on how a community is intended to interpret the crime. Are there relevant, legal distinctions?

Terrorism laws always seemed to me to be feel-good laws that are wholly unnecessary. Let's face it; if someone is caught perpetrating or attempting to perpetrate an act that is terroristic in nature, then they could be charged with enough counts of the root crime to put them away forever. For example, the WTC bombers could be booked for how many counts of attempted murder? So what's the point in tacking on another charge?

Posted by: Shygetz | June 20, 2008 9:05 AM

Shygetz,

The difference between a crime of "passion" and the more prosaic crime of opportunity has to do with the culpability of the offender not their thought during the crime.

Courts aren't attempting to modify behavior but to determine diminished capacity due to emotional distress. If you shoot your wife because you are overcome by emotional distress you are supposedly less culpable for your actions than if you kill her for the insurance money.

Not to mention that these are completely different crimes since one is premeditated and one is not.

Let's try to keep focused on the real issue here. Hate crimes are designed to add penalties to things that are already illegal based on if the offender was motivated by hatred of certain groups not on their emotional state during the crime.

Posted by: Lance | June 20, 2008 9:25 AM

Also regarding the rehab argument, I think the closest analogy in today's legal landscape would be court ordered anger management courses. It happens all the time and I have no problem with that. They're even named for an emotion. So you might think I'd be screaming. The difference between those and what JY seems to be pushing for is in the second part of the name, "management."

Those courses are not about telling people what to think. They're about giving people tools for dealing with their feelings and expressing them in acceptable ways. Similarly, if the court were to order tolerance training or hate management courses, I wouldn't say boo. But when someone advocates the government start trying to force an opinion on people, that were I draw the line.

If someone wants to think that blacks are inferior, gays are evil, Scientology is a cult, or digital watches are a good idea, fine. So long as they express that opinion in legal ways, like speech, then I say hooray for diversity. No government should ever have the power to try and take away someone's right to their opinion.

Posted by: Abby Normal | June 20, 2008 9:48 AM

Abby said:

"If someone wants to think that blacks are inferior, gays are evil, Scientology is a cult, or digital watches are a good idea, fine. So long as they express that opinion in legal ways, like speech, then I say hooray for diversity. No government should ever have the power to try and take away someone's right to their opinion."

Telling somebody that their opinion is stupid does not take their right to that opinion away, even if it is the government doing the telling. A lot of racists have the opinion that Martin Luther King Jr. was a bad bad man. The government of the US has (now) taken the position that he was a good guy. Way up thread, you said:

"There is a difference between the government taking the position that homophobia is wrong and society doing it."

Replace homophobia with racism, and that's just the position the government has taken, and yet no one is denied their right to be a racist. The government taking a position on an issue does not equal the government making dissenting opinion illegal.

Posted by: JY | June 20, 2008 10:46 AM

JY, should the government refuse the KKK permits to march and protest? Should they be declared an illegal organization? Why or why not?

Up untill just recently sodomy was a crime in many states. Should those governments have required ex-gay therapy to help curb that illegal activity?

Posted by: Abby Normal | June 20, 2008 11:02 AM

With my questions I'm just trying to understand where you're coming from, how far the government should go, in your opinion, to support it's views. That the government cannot infringe on a persons First Amendment rights in order to promote it's view provides that limit and, as I agree with you, gives us common ground to move the conversation forward.

However you really didn't answer my question about ex-gay therapy. Imagine its, 1990. Sodomy laws are still on the books and have been upheld by the Supreme Court in Bowers v. Hardwick. (They weren't overturned until 2003 with Lawrence v. Texas.) So as far as anyone is concerned Sodomy laws are constitutional. Would it have been appropriate at that time for a Judge to order ex-gay therapy for someone convicted of Sodomy?

To answer your question about the Martin Luther King Jr. monument, no it should not be removed on the grounds it promotes an opinion some might disagree with. I have not held that the government cannot endorse tolerance, as King did. We only differ how far it can legally and ethically go. In fact I think our positions (yours and mine) are very close to each other. Remember, I am not against tolerance training. Side note, I'm also not against the equal employment act. But I'll hold off posting anything more until I get your answer to the ex-gay question, as I'm still hoping to get a better understanding of your position.

Posted by: Abby Normal | June 20, 2008 12:17 PM

Lance: if you actually read the Orcinus article kw cited above, you'd know that hate-crimes laws, for better or worse, don't work that way; and neither do any of the myriad other laws that take intent into account. IF you don't have time for the whole article (it's long, rather detailed, and painstakingly reasoned), just read the bit I quoted in italics. Your assertions have already been dealt with here, and there's no reason to repeat what's already been said.

Posted by: RRaging Bee | June 20, 2008 12:53 PM

Raging Bee,

I read the bits you italicized and I don't think those points effectively refute the objections that I, and others, have raised to hate crime legislation. I am wading through the rest of the quite lengthy Orcinus article and will perhaps make a point by point rebuttal if I get a chance.

Posted by: Lance | June 20, 2008 2:59 PM

Abby,

I don't think I was taking you out of context -- the first line of the paragraph from which I quoted was this: "My issue is more with the concept then the method". My reaction is that's 100% backwards -- the concept (the government tells people what they ought to think) is pretty much ok, in that it happens all the time, and the sky hasn't fallen -- but the method is where the government needs to be strictly restrained: the government is free to tell people lot's of things, from racism is bad and MLK was a great American (by honoring him), to the earth is round and 4.5 billion years old (by teaching that in science classes, or lending support to museums that do the same, or funding scientific research, etc.). But they can't punish you for disagreeing.

"Which bring me to another question, what would an anti-racism class achieve, that wouldn't also be achieved that through tolerance training, such that it would justify the extra level of intrusion?"

To counter your question, what line do you think would be crossed with an 'anti-racism' class that wouldn't be crossed with a 'tolerance training' class? Promoting tolerance is promoting a value every bit as much as promoting equality is promoting a value. By coercing a prisoner to attend a tolerance training class you are forcing him to do something he doesn't want to do in order that he hear things he doesn't want to hear that contradict presumed facts and opinions he has in his head. If you are willing to do that, you've already crossed the exact same line, with respect to the prisoner's rights, that you cross by sending him to a anti-racism class.

Posted by: JY | June 20, 2008 4:32 PM

"Actually, Brian, assuming both murders were planned or both murders were spontaneous, sentencing guidelines do not differentiate between the two murders. If one was planned and the other spontaneous, the law punishes the planning of the murder. It's still not punishing you for the thoughts in your head."

Um. Isn't planning a crime a thought?

And I do think that people that assault or murder other people based on prejudice are more dangerous than bar fighters. Because people have been getting drunk and fighting for, oh, thousands of years. But this idea that it's OK to beat on somebody because they're different can be bred out of society. Contrast the South of 50 years ago with the South of today.

My underlying point is still the same. For a long time, it was OK to beat on black/gay/different people. Do you think that if a transvestite who walked into a Teamsters meeting 50 years ago got assaulted, that would have gone to trial? The government has a compelling interest in stopping this idea that crimes against minorities (of whatever stripe) are not important.

Posted by: Brian | June 20, 2008 6:17 PM