You Gotta Love New York Crime

You have a strange idea of funny, Ed.
Guy, however wierdly dressed, walking down the street to meet his Mom, is attacked by two Christian wingnuts, and beaten with a metal pipe.

I could buy "sick" or "sad" or "scarey."

But "funny"?

No.

I've met many, many people who were satanists...

You've met "Many, many" satanists?

I guess I need to get out more.

flatlander:
I didn't say the crime was funny. In fact, I said the opposite, that the crime itself is horrible and I hope the perps go to prison for a long time. But the other things surrounding it are funny, in my view.

Ed, you should check out the Libertarian Party's opinion of this case. It seems rather un-libertarian to me.

A blog on it.

Ed, are you opposed to Hate Crime laws in general, or just in this specific case. Your assertion that "you can't make a state of mind illegal" seems to show that you might not have thought Hate Crime, or more accurately, Bias Crime laws through. After all, are you willing to argue that differentiating between First and Third degree murder is dumb as well, since all that differs between those crimes is a state of mind as well.

I suppose that NY state's "bias crimes" laws include "religion" as a category. If so, why should Satanism be exempted? Or, for that matter, atheism or agnosticism?

BTW, if you have a constitutional problem with "bias crimes" legislation, you would be encouraged to take it up with Justice Rehnquist. He wrote the opinion in the case (I forget the caption) that held enhanced penalties for crimes motivated by bias (so called "hate crimes") to be constitutional.

Ed, are you opposed to Hate Crime laws in general, or just in this specific case. Your assertion that "you can't make a state of mind illegal" seems to show that you might not have thought Hate Crime, or more accurately, Bias Crime laws through. After all, are you willing to argue that differentiating between First and Third degree murder is dumb as well, since all that differs between those crimes is a state of mind as well.
Yes, I am opposed to hate crime laws in general. I think there is a distinction between hate crime laws as a question of state of mind and the difference between first and third degree murder. In the latter, the state of mind distinction is between premeditated murder and not premeditated murder. That legal distinction is based upon the notion that someone who commits premeditated murder is probably more likely to be a repeat offender and a real danger in the future, so that crime is treated more severely. I don't think the same thing is true with hate crimes. If someone commits a premeditated murder - they've thought it through and make a conscious choice with time to consider the alternatives and the consequences, as opposed to a snap decision in the heat of an argument - then should it really matter why they decided to do it? If they killed someone because he was in a rival gang, is that legally different than if they killed someone because they were of a different color or religion? I don't see why it should be. Should the person be punished more for the latter than the former? Again, I don't see any compelling reason why they should be.
In practice, I think it's too easy to treat any crime against a protected minority to be a hate crime even if it isn't. The murder of Matthew Shephard is an example of that. Though it was widely reported as being a hate crime motivated primarily by anti-gay bias, it turns out things might have been a lot more complex than that. As Jon Rowe put it:

If someone intentionally savagely beats another individual to death, then they deserve death or at least life in prison, regardless of the underlying motive for the crime--racism, homophobia, robbery, a snide remark, etc. And as I said in the beginning of the post, life, more often than not, is complicated. Sometimes, it's just not so easy to figure out exactly "why" a particular event goes down; often there are more than one motivating factors. I don't doubt that Shepard's homosexuality was such a factor, but it might not have been the primary factor. So what? He was brutally murdered, and they did it. That's all we need to know.

I think he's right. It's just too difficult to discern motive. Premeditation is much easier to show, but motive for that premeditation is much more troublesome and difficult, and it really shouldn't matter at all. The act itself is illegal and that's all that should matter. Now, it's not a huge deal to me. I'm not gonna go out there and campaign against such laws. But I do think they have the potential for injustice, and I don't see a compelling reason to have them.

I suppose that NY state's "bias crimes" laws include "religion" as a category. If so, why should Satanism be exempted? Or, for that matter, atheism or agnosticism?
I didn't say satanism should be exempted; I said that such bias crime laws shouldn't exist. And that's part of the reason why, because it's so difficult to discern intent. If a white man kills a black man, is it evidence of a hate crime? How about if a white man kills a black man? Repeat the questions with gay and straight. In practice, it's so easy for this simply to become a situation where any time a member of a minority is victimized, it is assumed to be a hate crime, whereas if the tables are turned, the assumption goes the other way. The reality could, of course, be entirely different and it may well not matter at all.
BTW, if you have a constitutional problem with "bias crimes" legislation, you would be encouraged to take it up with Justice Rehnquist. He wrote the opinion in the case (I forget the caption) that held enhanced penalties for crimes motivated by bias (so called "hate crimes") to be constitutional.
Well, I didn't make a constitutional argument against them. Perhaps there is one to be made, but I haven't really given it much thought. Besides, if I thought Rehnquist would return my calls, I'd have many other rulings to tell him he's wrong on before that one might come up. :)

Sorry, Ed. I disagree with you on hate crimes. When a person is attacked, merely on the basis of appearing to belong to a certain group, the intent is not only to hurt that individual but to terrorize (aka, "send a message") to that group. It is thereby also an act against that group. I respectfully submit that such terrorizing intent deserves a harsher punishment. If the DA can't prove that the intent exists, there will be a "not guilty" finding by the judge or jury. The law makes distinctions on intent in lots of areas.

Do a Google search on '"with intent to"' and 'penalty' and you'll get 198,000 responses, a large portion of which are citations.

Ed Brayton at January 17, 2005 11:26 AM

I think there is a distinction between hate crime laws as a question of state of mind and the difference between first and third degree murder.

This suggests to me that you don't understand what is being referred to as a "hate crime." (I prefer the term "bias crime," but that's another issue.) A hate crime requires a conventional crime as what I would refer to as a "predicate crime," with the motivation of bias against some characteristic that the perpetrator perceives in connection with the victim. The perception need not be correct. Merely having a state of mind is not a "hate crime."

That legal distinction is based upon the notion that someone who commits premeditated murder is probably more likely to be a repeat offender and a real danger in the future, so that crime is treated more severely.

Oh, no, this isn't correct at all. You might be right that a perp is more likely to be a repeat offender if the perp commits a felony murder (that is, a murder committed during a commission of another crime, such as a robbery), but in a "conventional" premeditated murder, there is no particular evidence that a perp is more likely to murder again. I doubt that OJ Simpson would have murdered someone else, for example (of course, I tend to believe that he was guilty, but that's another issue.) The reason that someone who commits a premeditated murder is punished more severely than someone who commits an "unpremeditated" murder (a murder during a fit of passion, for example) is because the perp is considered more morally culpable than someone who kills during a fit of passion. Moreover, the reason that someone who commits aggravated and negligent manslaughter are punished ever less severely is because their acts are considered ever less morally culpable in the death. In every case, the victim is dead, dead, dead. But the punishment isn't based on the fact that the victim is dead--indeed, in a killing in self defense, the "victim" is dead, too--the punishment is based on the perceived moral culpability in committing the act.

In practice, I think it's too easy to treat any crime against a protected minority to be a hate crime even if it isn't. The murder of Matthew Shephard is an example of that. Though it was widely reported as being a hate crime motivated primarily by anti-gay bias, it turns out things might have been a lot more complex than that.

I'm rather surprised that you raised the Matthew Shephard murder in the context of a hate crimes discussion. We'll never know whether the prosecution could have proven that Shephard's murder was a hate crime, in no small measure because Wyoming didn't--and still doesn't--have a "hate crimes" law that covers sexual orientation (actually I don't believe they have any "hate crimes" law), and so "bias" issues would have been irrelevant. What might have been "widely reported" is largely irrelevant to whether the perps in the Shephard case actually committed a "hate crime." From what I have read, some gay activists were using Shephard's murder to try to get Congress to pass a proposed amendment to the federal hate crimes law that was then pending to add "sexual orientation" (along with a couple of other categories). That doesn't mean that Shephard's murder was a hate crime, or that it would have been if Wyoming had a "hate crimes" law--it just means that his murder was being used for their purposes.

I'm also surprised that you used the term "protected minority." Apparently you are unaware that "hate crimes" laws do not "protect" members of a "minority." More than a few black people have been charged with hate crimes against white people. Moreover, there was a case in Springfield MA in which one person tried to get a hate crime charge dismissed against him. The crime had been against a homosexual, and the hate crime charge was was based on sexual orientation. The perp tried to get the hate crime charge dismissed on the basis that he (the perp) was himself homosexual. The judge correctly (under the law) refused to dismiss the hate crime charge.

Referring to John Rowe's point

If someone intentionally savagely beats another individual to death, then they deserve death or at least life in prison, regardless of the underlying motive for the crime...

I tend to believe that Mr. Rowe is being a bit disingenuous. Most crimes that have been reported to the FBI as "hate crimes" are not murder or beating other individuals to death. Most "hate crimes" have as predicates lesser crimes, including, for example, assault, battery, vandalism, harrassment, etc., etc., etc. It's true that usually murderers would not be subject to additional penalties if their crimes are adjudged to be hate crimes, but perps for other crimes clearly may be. Murders might be the most widely-known "hate crimes," but they are hardly the only ones.

One last item. There is more than a bit of literature available over the Internet regarding the types of evidence that is useful in prosecuting a hate crime charge. It isn't easy to prove that a perp was motivated by bias when committing the crime, but it isn't impossible either. And, as with all elements of a crime, it is up to the jury to determine whether the prosecution proved it beyond a reasonable doubt.

raj-
As you can no doubt tell, my thinking on this isn't exactly well developed. I've just long had the gut feeling that this sort of thing was prone to abuse and that it was a bad idea to punish thoughts on top of actions when the actions themselves are already illegal. It may well be that the laws are much better written than I imagined them to be and the standards much more coherent. It's just not something I've taken the time to study in any detail. If I get the inclination, I'll take a closer look and keep in mind your arguments.

I used to be of the same opinion on hate crimes, but on looking into it, as time went on, I came to reailse that more is going on with the crime than the actual act of violence.

I quote Eric Muller (See archives on 2004_11_01 and 2004_12_01) on the question of distinction in punishment based on motive.

Consider four situations:

(a) a person is convicted of and punished for the crime of hating Jews.

(b) a person is charged with the crime of burglary. A search of his car incident to the arrest uncovers viciously anti-semitic literature. The sentencing judge says, "The law allows a sentence of 3 to 7 years for this offense. I was going to give you 3 years because this is your first offense, but I've decided to give you 7 years because you're an anti-semite."

(c) a person burns down a synagogue because he hates Jews. He is prosecuted for arson, and his sentence is enhanced because of the anti-semitic motive for the attack.

(d) a person burns down a synagogue because he wants to collect on an insurance policy. He is prosecuted for arson, and his sentence is enhanced because of the motive of greed.

Is it not terribly obvious that (a) and (b) are nothing like (c) and (d)? And that each of (a) and (b) are essentially alike and each of (c) and (d) are essentially alike?

When this, one of the most conservative U.S. Supreme Courts in the history of the institution had this question before it in 1993, it rejected the argument that penalty enhancements for bias motive are impermissible punishment of belief and opinion unanimously. In an opinion by the notoriously politically correct William Rehnquist.

1. Murder

a. Bill intentionally administers a life-ending drug to his chronically (but not terminally) ill mother to put an end to what he perceives to be her otherwise unremediable suffering.

b. Ted intentionally administers a life-ending drug to his chronically (but not terminally) ill mother to collect his inheritance.

Let's assume that under a particular state's laws, both of these acts would constitute second-degree murder. Would anyone maintain that it's inappropriate for the law to punish Ted more harshly than Bill? Of course not. It would be entirely appropriate to punish Ted more severely for his bad motive (or, looking at it the other way, to mitigate Bill's punishment for his benign motive).

So it's perfectly clear that the criminal law quite uncontroversially punishes some offenders more harshly than others because of their motive.

Now consider another pair of cases:

2. Mail Fraud

a. Bill offers malpractice insurance to attorneys, but it's a scam. He bilks 5 attorneys out of $5000 each.

b. Ted offers long-term care insurance to elderly people afflicted with Parkinson's Disease, but it's a scam. He bilks five eighty-five-year-olds out of $5000 each.

Again, would anyone maintain that it'd be wrong for the law to treat Ted more harshly than Bill? Ted has chosen to seek out unusually vulnerable victims. Even if the dollar amount of the loss that Bill and Ted caused is the same, where is the problem with punishing Ted more severely for seeking out vulnerable victims?

So a crime is not a crime. The criminal law treats people more harshly for acting out of motives society deems especially culpable, just as it treats people more harshly for pursuing vulnerable victims. None of this, in the murder and mail fraud contexts, is controversial.

Part of what a hate crime is doing is part of what any act of terrorism is doing, aiming to affect the behaviour and beliefs of others. When a group of thugs beats a man for being "x" the idea is make the other "x"s toe the line.

Making that sort of intimidation unnaceptable is what hate crime laws are all about. They are about speaking up, where Rev. Neimuller was silent.