On Hate Crime Legislation
When an incident — such as the recent attack in a Massachusetts gay bar that left one innocent gay man shot and two others hatcheted by a skinhead Aryan — is elevated to the status of “hate crime,” many libertarians cringe. The standard talking points are “you’re punishing thought” or “all crimes are hate crimes” or some other gobbledygook.
So let me ask this: When the suspect later kills a police officer in the line of duty, and his female companion who apparently was just along for the ride, do these same libertarians cringe in the same way over the fact that the former could have earned the (now deceased) perpetrator the death penalty in Arkansas, but not the “plain vanilla” murder of his passenger? Murder is murder, right? Aren’t we just punishing thought (i.e., the thought of not wanting to be captured)? All crimes are hate crimes, right? Why should the death penalty be applied differently for one murder but not the other?
The simple truth is that we punish the same crime differently in different circumstances all the time. We punish repeat offenders differently than first-time offenders. We punish those on probation or parole differently from those who have fully served their time. We punish people who harm family members differently from those who harm strangers. We often punish younger offenders differently from older perpetrators. And, yes, we occasionally punish the rich differently from the poor. Are all such distinctions unfair and anti-libertarian? If not, if your problem with differential penalties only applies to “hate crimes,” then why exactly? I just don’t get it.
Open thread — comment away!
(Cross-posted at Spectrum Bloggers.)
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I agree the murder of a police officer should be treated the same as any other murder.
The problem with hate crime legislation is that there is no reasonable way to discern intent. Is every murder of homosexuals a hate crime? Whenever a white person kills a black person is it a hate crime? How do you tell the difference?
Should a murderer that kills someone just because they are rich be treated the same as someone that kills someone just because they are hispanic? What about someone that kills someone just because they are homeless?
Where do you stop? There should be different classes of murder (premeditated, accidental, etc) but when you make certain types of murder more wrong than others you are only asking for trouble by attracting the attention of special interests.
[Kip replies: But ALL criminal prosecutions require proving some level of "intent" (called mens rea) beyond a reasonable doubt. So this seems to be somewhat a case of question-begging.]
For me, the issue is impartiality. Applying additional punishment for crimes deemed hate crimes doesn't offer much in the way of deterrent. The punishment is designed to make us feel better more than anything. Hate crime laws, like capital punishment, suggest that revenge is a legitimate state interest, and I don't think it is.
With your other examples, I see the implication behind the various possibilities. Essentially, we'll consider intent as a significant factor when imposing punishment. Like the difference between a crime of passion and pre-meditated murder, it matters. That could arguably apply to hate crime laws, which I think would make your point.
I don't think that's enough, though, in the instance of hate crimes. It's social policy designed to make a statement rather than keep the peace. If it was effective at keeping the peace, lunatics such as this week's case wouldn't attack people. Again, I see it as mostly a chance to give us the warm fuzzies that we've protected a group from actions encouraged by "bad" thoughts. ("Thoughts" really isn't what I'm going for, but it's late.)
Persuasive or not, that's where my thinking is.
I think the issue with the killing of a police officer is exactly the issue of intent, Kip. This is why it does not have to fall under the category of hate crime. What motive would one have for killing a police officer, as a police officer? (As opposed the cop who happens to live next door, and assuming that it is not motivated by a hatred of all police.)
The motive for it is presumed to be a stab at the very heart of civilized life, isn't it? An attack on the authority of the state? Doesn't the state need to address that as a more severe issue, that is not going to be mitigated by passion?
If a person murders me, for whatever reason, the motive is assumed to be at some level a personal one. But that is not true of an individual striking at the agents of the state itself. The intent is inherently different, isn't it?
I think what chris was pointing towards, was this question:
Is the fact that the victim is black/gay/rich/etc., prima facie evidence of a hate crime?
—
I would say no.
As to Kip's initial question:
It's an interesting query, and I'm afraid you've got me here, because I previously would've belonged in the "cringeing libertarian" camp. Not to be contrarian, but perhaps I'll try to proffer some arguments in rebuttal a little later…
Isn't it easier to prove (beyond reasonable doubt) that someone inteded to kill someone as opposed to the motivation for killing someone?
How can you know whether it was a murder of opportunity, greed, or hate? That seems unknowable to me.
well, chris – they establish motive all the time in courts of law.
Muddling "motive" and "intent," is really side-stepping the issue, the two terms are pretty much inseperable. If you "intended" to kill someone, there had to be a "motive." However, presence of "motive" doesn't necessitate "intent."
ex. I have "motive" to kill anyone who looks at me sideways, or anyone who has alot more money than I do. But I certainly don't intend to do so.
When the crime is a murder, if the state has the death penalty, the perp is almost certainly gonna get the needle and a hate crime enhancement really doesn't add anything to the equation (see GWB's cop-out response to the question about James Byrd and hate crimes in his 2000 debate with Al Gore). But the problem is that people tend to focus only on murder and forget about all other types of crimes to which hate crimes laws apply. Most hate crimes, far and away, are not murders. For the sake of numbers (though it is generally regarded that the numbers are inaccurate for several reasons, but provides at least a decent starting point) in the FBI's 2003 Uniform Crime Reports for hate crimes statistics, there were a total of 14 murders and negligent manslaughters that were bias motivated, 6 of which where the bias was anti-male homosexual. Compared that to the 920 aggrevated assaults, 1809 simple assaults, 2744 acts of intimidation, 107 robberies, 164 burglaries, 173 larcenies, 34 arsons and 2618 acts of vandalism.
As for whether we should apply hate crimes to certain crimes, I think it is appropriate and more than reasonable. Take these two senarios: 1) some perpetrator splashes a can of paint on the door of a Jewish family and is caught. It isn't known whether the individual choose to commit the act of vandalism because of anti-Jewish beliefs and the family is Jewish and he's not talking about his motive. 2) some perpetrator paints a swastika on the door of a Jewish family and is caught. Here it can be inferred that the individual is anti-Jewish and choose the victim family because they are Jewish. Senario 2 is the more abhorent crime unless new evidence in Senario 1 comes to light (eg. a search of the perp's home reveals anti-Semetic literature, etc). The crime committed in 2 is not just a crime against the propetry of the family or the family itself, but against all members of the Jewish faith, the entire community and most especially the local Jewish community. Its not often I quote William Rehnquist (I guess even anti-gay archconservative bigots like him have moments of lucidity), but he was right when he wrote for a unaimous Court that "[hate crime] statute[s] single[] out for enhancement bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm. For example, according to the State and its amici, bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest. The State's desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders' beliefs or biases." Wisconsin v Mitchell, 508 U.S. 476 (1993)
On Hate Crimes & Cop Killers
Kip raises an interesting question with regard to the lip-service many libertarians pay towards "hate crimes," specifically, that they by and large despise them.
I thought I was going to write against the idea of a hate crime, however I may be willing to change my mind a little here. Bias-motivated crime does seem like a larger danger to society than personally targeted crime. IANAL but my impression has been that there are only certain biases that are targeted for this distinction. It is this that bothers me. Let the adversarial relationship between prosecution and defence determine if bias existed, but don't establish the categories and list of damned prejudices in advance. It is the implication that a bias motivated criminal may be a serial offender that might turn me on this issue.
Peter, not listing the biases has proven fatal to some hate crime laws (See R.A.V. v St. Paul) and even when not fatal, they become exceedingly difficult to prosecute if they are prosecuted at all. As I pointed out earlier, in the 2000 debates with Al Gore, George Bush rebutted Al Gore's question about a hate crime bill by answer that Texas already had a hate crime law. What Bush failed to mention is that the Texas hate crime law was so widely considered to be vague so as to be toothless and probably unconstitutional. The exact language provided for penalty enhancement if the crime's victim was selected "because of the defendant’s bias or prejudice against a person or group." From the time that law was enacted in 1993 to the time a provision listing biases was added in 2001, you know how many times it was used? I'll give you a hint, its a non-negative integer less than one. No DA in the state would touch it with a ten mile pole, even the DA in the heinous hate-motivated murder of James Byrd, Jr., which is why the Byrd family and Judy Shepard campaigned for a stronger hate crime law in Texas, one that would list the biases.
The substantive issue of hate/bias-motivated crime laws has been reviewed by the Supreme Court three times (excluding a New Jersey case dealing with hate crimes sentencing). Each of the cases is worth a read:
Of course I have a problem with laws saying one person's life is worth more than another's…whether the stated reason is because that person is a police officer, or because they're gay (or black, or female, or muslim, or whatever).
It's the equivalent of saying, to the rest of us, "well, since you're a white male heterosexual Christian civilian, YOUR life doesn't really matter".
Or else we could just throw out that pesky 1st Amendment and declare once and for all that we _do_ want to criminalize ideas.
[Kip replies: But a hate crime provision is not "punishing the murder of a white male heterosexual Christian civilian" differently. It's punishing the intent to murder differently. It's not society that's assigning different values to different lives, it's the defendant who's doing that. Society is just expressing its condemnation of that. Which is, I think, your point.
If all lives should have equal dignity in the eyes of the law, then can't we punish those who commit crimes in violation of that principle?]
Then I remain unconvinced. Establish only that a crime was chosen before the victim and I support penalty enhancement. The DA's won't touch that law because they know it will lead to First Amendment chalenges. I think the First Amendment should strike it down along with the more specific laws.
A law enhancing penalties for a homosexual murdering a heterosexual would meet your test of the criminal assigning different values to different lives. A homophobic government could defend that law saying homosexuality is bad, that it lead to victim selection and thus should be punished. Just punish all victim selection and get rid of the problem.
If all lives should have equal dignity in the eyes of the law, then can't we punish those who commit crimes in violation of that principle?
I still disagree, but I understand your counter-argument now. When I first read that, I thought more on the lines of we'll agree to disagree; at least the discussion was interesting and hopefully instructive. Then what I think is your angle on that statement hit me. You're suggesting that we punish people for hate crimes because they're valuing one segment of the population as less than human, like the rest of the supposedly chosen master race. Hate crime laws uphold a standard of equal dignity, if I've interpreted correctly.
Where I still disagree, and at this point I think it's mostly perspective, is that I don't think it's the government's position to force anyone to value everyone equally. Hate crime laws impose that view, demanding obedience to thought more than anything. The government should be impartial in imposing justice. If it's appropriate to punish that intent once it manifests as violence, why is it not appropriate to punish it before it manifests? Would it be better to eliminate hate crime laws, and instead, allow a wide range of punishment within an offense that can be driven by hate? Or is that too open to interpretation and misuse, which would then require a separate, specific punishable offense to ensure that it's punished appropriately?
I still don't like hate crime laws, but I'm willing to concede that my view is at least partially subjective. There are thorny issues, including the examples you provided, that I've yet to reconcile. But I don't see them as irreconcilable. Essentially, I'm trying to figure out if the punishment philosophy we practice should move closer to my views or if my views need to move closer to what we practice today. I don't know, but the debate is interesting.
I guess I'm a weak supporter of hate crime laws. The best case I can make for them is this: We set a greater punishment for some crimes in theory, with the goal that in reality they will have an equal chance of being punished. The enhanced penalties are a signal to the police and prosecutors that this or that minority or disadvantaged group really does deserve just as much protection as anyone else.