Pick Your Prejudice

Jacob Sullum | October 26, 2004

The Georgia Supreme Court has unanimously overturned the state's "hate crime" law, which imposed longer sentences on criminals who "intentionally selected any victim or any property of the victim as the object of the offense because of bias or prejudice." Because state legislators disagreed about whether to mention sexual orientation, the law did not specify what sorts of bias or prejudice triggered extra punishment. The state Supreme Court therefore concluded that the law was unconstitutionally vague. Since it covered "every possible partiality or preference," the court said, the statute could be applied to "a campaign worker convicted of trespassing for defacing a political opponent's yard signs" or "a rabid sports fan convicted of uttering terroristic threats to a victim selected for wearing a competing team's baseball cap."

Comments

|10.26.04 @ 11:25AM|#

A neighbor who was a prominent area drag queen was murdered by someone in a ninja outfit who sliced through the screen window and slashed her throat with a sword.

After detaining some poor kid who happened to be walking around the area dressed in a ninja outfit, they found the culprit and charged him with a hate crime because he had killed a drag queen.

The only problem was that the hate crime charges had to be dropped when it was determined that the murderer was *also* a well known drag queen.

I love Columbus.

|10.26.04 @ 11:26AM|#

Sorry, the above post should have read "slashed *his* throat"... I think.

|10.26.04 @ 12:09PM|#

Neb Okla, there have been numerous successful hate crime convictions in incidents in which the perpetrator was a member of the same group against which he was alleged to be expressing hate during the conviction of the crime. In many jurisdictions, hate crime legislation in action is simply a way of rather uncritically increasing prosecutorial power--the threat of a hate crime prosecution is used as leverage to induce a defendant to accept a plea bargain. There are many, many ways in which these are bad laws, even when they are crafted more adeptly than the Georgia one.

|10.26.04 @ 12:54PM|#

We've got to get rid of "hate crime" laws...But...
In my neighborhood, we had a mixed race couple move in. Third night, house smeared with what seemed to be pounds of dog s..., I mean, not just a bag of it, but POUNDS, on the car, on the windows, etc...(the neighbors helped clean up). It didn't stop there, broken windows, grafitti...it went on and on...but the neighbors began taking turns watching...and eventually caught the culprits. Why haven't you heard about it (it was within the last 5 years)?

Because once the police realized it was racially motivated, they refused to even take a police report. The perps were stopped by going to their families and shaming them. The police were not even willing to charge them with vandalism (the night a neighbor caught them on tape, a very clear tape...spray painting a cross on the garage). And living in a quiet neighborhood, no one made a fed case about it.

Point? If eveyone gets equal protection from the law, hate crimes won't be needed, and we will end them easily. Right now though, if you are black, and american, don't expect the same protection that your white neighbor will get.

From Chicago.

|10.26.04 @ 1:00PM|#

but the neighbors began taking turns watching...and eventually caught the culprits

I bet they were Democrats, haven for anti-Semites and racists....

|10.26.04 @ 1:03PM|#

Time for raymond to post the draft UE const. again.

|10.26.04 @ 1:09PM|#

Skeptikos-

'a neighbor caught them on tape'

In my neighborhood they would have been cought in the head with a bat. Perhaps we are less refined here.

|10.26.04 @ 1:28PM|#

"Point? If eveyone gets equal protection from the law, hate crimes won't be needed, and we will end them easily. Right now though, if you are black, and american, don't expect the same protection that your white neighbor will get."

Point?

You have no point. The cops eithter do their job or they don't. A hate crime law won't make any difference in whether they do. If they refuse to investigate a crime, no one will be aprehended to prosecute under the "hate crime" law an more than they would to be prosecuted under the "regular" laws against vandalism, etc.

Hate crime laws send the wrong message anyway. It puts forth the notion that a crime commited for a certain reason is somehow worse than the same crime commited for some other reason. Commiting murder for a racial reason is no worse than commmiting murder for money or jealousy or any other reason. The victim is just as dead in each instance.

|10.26.04 @ 1:31PM|#

The last acceptable prejudtice is calling the LP a bunch of "raving moonbats".

daddy manager|10.26.04 @ 1:45PM|#

Skeptikos,

Stop me if you've heard this one before: "Two wrongs don't make a right." Oh, you've heard it before? Too late!

|10.26.04 @ 2:13PM|#

"Hate crime laws send the wrong message anyway. It puts forth the notion that a crime commited for a certain reason is somehow worse than the same crime commited for some other reason. Commiting murder for a racial reason is no worse than commmiting murder for money or jealousy or any other reason. The victim is just as dead in each instance."

The victim of a guy who "snaps" is just as dead as the victim of a guy who spent two months planning the hit, but we treat first degree murder more seriously than second degree. The victims of a triple homicide are just as dead as if each of them had been killed individually, yet the law in most states upgrades the charge to capital murder. So clearly, the deadness (or battery, or whatever) of the victims is not the only factor that is relevant in determining the seriousness of a crime.

Hate crimes are more serious than other crimes because of the damage they do to people not even involved in the crime. A lynching in Texas is likely to make black people and white people in Florida look at each other differently. It might make some kooks in Los Angeles decide to get revenge on white people. Or, it might prevent black people in a neighborhood in New York from speaking up when they are harrassed by racists (lynchings are a form of terrorism, designed to punish the immediate victim, but also to send a message that this could happen to other people, too. That's why they are so public.)

Political murder/terrorism/lynchings/hate crimes are a form of murder that involves aggratvating circumstances, so penalty-enhancements are perfectly appropriate.

|10.26.04 @ 2:23PM|#

'we treat first degree murder more seriously than second degree'

I believe the reason for this is rooted in efforts to controll gangs and organized crime. Anyway, because something is doesn't make it just. It seems more than fair to treat someone who, as you put it, 'snapped' just as harshly as we treat contract killers and serial murderers. I am loath to quote George Bush, but he summed it up when discussing the prosecution of James Byrd's killers. Paraphrasing; 'We killed them, what more did you want tacked on?'

|10.26.04 @ 2:33PM|#

Well, joe, here's where I'm going to disagree with you, but I'm going to be consistent about it:

You compared hate crimes to terrorism. You argued that any crime which inflicts, well, terror, in addition to the immediate casualties, should be punished more severely.

When it comes to determining punishment I really don't care about terror. If somebody murders 3000 people in one day, I'm not interested in basing the punishment on whether or not he wanted to send a message. Those "root causes" may or may not be important in other contexts (we argue about that virtually every day on this forum), but as far as punishment goes, I think that killing 3000 people in one day is all we really need to know during the sentencing phase.

Likewise, if somebody kills his gay neighbor, I don't really care whether it was because the murderer hates gays or simply because the murderer was angry that the neighbor borrowed a lawn mower without returning it. (Then again, I suspect that some posters on this forum would care very much that there was a property rights issue involved.... ;) Bottom line is that he deliberately murdered another human being. End of story.

And if somebody bombs an airplane, as far as sentencing goes I don't care whether he did it because he's a fanatic who wants to impose Sharia law on the west or simply because he was fired by the airline and wanted revenge. Either way, he decided to kill a bunch of people.

Basically, I don't care what the motive is if the crime is pre-meditated. A person who is capable of pre-meditated murder is far too dangerous to have running loose in society.

|10.26.04 @ 2:34PM|#

joe is correct concerning the varying distinctions made by the law concerning criminal acts. Hate crime laws are only one such variation. These variations are based on varying policy considerations.

|10.26.04 @ 2:38PM|#

BTW, for crimes less than murder I can see how motive might be taken into account. A skinhead who vandalizes a synagogue is displaying some tendencies that could easily escalate into more dangerous behavior in the future, and should be treated as more dangerous than the former synagogue janitor who just got fired, got drunk, and then spray-painted an angry message on the door of his former employer. That might be taken into account during sentencing, but don't judges routinely take into account whether or not a defendant is likely to do it again? Or at least didn't they used to? (I don't know how much leeway judges have nowadays with sentencing guidelines.)

|10.26.04 @ 2:40PM|#

thoreau,

Basically, I don't care what the motive is if the crime is pre-meditated. A person who is capable of pre-meditated murder is far too dangerous to have running loose in society.

Fine, but that's your own subjective standard.

|10.26.04 @ 2:47PM|#

Fine, but that's your own subjective standard.

True, but treating premeditated murders motivated by hate differently from premeditated murders with some other motivation is also a subjective standard. What gets enacted into law will depend on how many people prefer one subjective standard over another. I'm simply arguing in favor of my admittedly subjective notions. You could of course argue that it makes no sense to try to persuade somebody of something subjective, but if a policy is based at least in part on "public opinion" then it's inevitable and even rational that people will argue in favor of their own subjective notions.

|10.26.04 @ 3:01PM|#

thoreau,

You are correct of course, but I see no reason why dividing between pre-meditated homocides and those which are not pre-meditated also doesn't invite the sort of parsing between homocides based on motivation, type of instrument used, etc. For example, most state laws reserve a special per se rule for homocides committed with explosives (as I recall, they automatically qualify as a capital crime in some states); one can see why this per se rule exists.

|10.26.04 @ 3:16PM|#

"The victim of a guy who "snaps" is just as dead as the victim of a guy who spent two months planning the hit, but we treat first degree murder more seriously than second degree. The victims of a triple homicide are just as dead as if each of them had been killed individually, yet the law in most states upgrades the charge to capital murder. So clearly, the deadness (or battery, or whatever) of the victims is not the only factor that is relevant in determining the seriousness of a crime."

As far as I'm concerned it is. The heinousness of any crime is determined exclusively by the amount of damage done to the victim - not the motivition of the criminal.

|10.26.04 @ 3:42PM|#

I tend to side with thoreau on his subjective standard, because it seems to me, to be more objective than dealing with a persons state of mind and intent. Doling out extra punishment for a person's 'intent' whether firmly extablished or not, brings one to the realm of 'thought crime', and further away from the facts of the crime - i.e. the dead body.

|10.26.04 @ 4:16PM|#

Let me see if I have this straight: It is not a crime to just stand next to some guy and hate him because of his skin color; it is a crime to stand next to a guy whose skin color you don't hate, and hit him over the head with a bat; somehow it is more of a crime to stand next to a guy, hate him because of his skin color and then hit him over the head with a bat? Doesn't this violate one of Newton's Laws about the conservation of matter?

|10.26.04 @ 4:31PM|#

Doling out extra punishment for a person's 'intent' whether firmly extablished or not, brings one to the realm of 'thought crime', and further away from the facts of the crime - i.e. the dead body.

Absolutely correct.

The social effects of the motivation of a 'hate' crime are not substantively different from the social effects of the existence of a serial killer, for example. It isn't necessary, and in fact it's counterproductive, to cloud the issue with the feelings of the murderer for the murdered. Legislating 'hate' in general is meaningless, and legislating specific types of hate leaves open the door for an ongoing litany of potential 'victims' of someone elses opinion. Additionally, legitimizing the idea of a hate crime diminishes the victims of non 'hate' related crimes.

Freedom of thought and expression requires that it remain legal to hate someone, however emotionally and intellectually bankrupt such a position is.

|10.26.04 @ 4:58PM|#

"there have been numerous successful hate crime convictions in incidents in which the perpetrator was a member of the same group against which he was alleged to be expressing hate during the conviction of the crime."

I didn't know that, and that is interesting.

Of course, there is the concept of "self-hate." Ever hear the derisive term "self-hating Negro"? It's often aimed at blacks who have conservative (which is, of course, synonomous with "racist" and "black-hating") views.

More broadly, members of the Left have explained to me that many black Americans, living in a racist, white-dominated society, are constantly exposed to anti-black "messages," blatant or subtle. It corrodes their self-esteem, and they come to internalize the assumptions of black inferiority. No surprise then, if they eventually lash out against members of the hated race -- their own.

Therefore, one can only conclude that the majority of "black on black" crimes are, in fact, hate crimes. So better slap some additional penalties on that.

|10.26.04 @ 5:09PM|#

joe you mention vague and uncertain effects on large segments of population as a result of a "hate crime". A hate crime may incite a riot, or cause fear in speaking up about a crime, but those are individual choices made by the intellectually challenged. America is all about opportunity, meaning you will have the ability to do what you want to do, but the responsibility for making that choice and the risk assumed in doing so is yours and yours alone. Further punishing the perpetrator of a "hate crime" for his motivations is in effect punishing him or her for the future actions of others which have not yet occurred, and most likely will not occur at all. Burning a cross on one black family's lawn to seek to deny them opportunity is not a crime against black America, it's a crime against all of us. Making that victimization the purview of some special group is myopic.

|10.26.04 @ 5:12PM|#

Ever hear the derisive term "self-hating Negro"?

Bill Cosby and Colin Powell have been described thusly. You'd be surprised also how academically successful black students are often harassed as Uncle Toms and whatnot. If he masturbates excessively he might be a, "self-player-self-hater."

So better slap some additional penalties on that.


Absolutely, man. Any excuse to toss more niggers in jail is good enough for the justice dept.

|10.26.04 @ 10:13PM|#

Point? If eveyone gets equal protection from the law, hate crimes won't be needed, and we will end them easily. Right now though, if you are black, and american, don't expect the same protection that your white neighbor will get.

So your argument is: since racist police don't enforce the laws, we need more laws for them to not enforce.

Have you spotted the flaw in that reasoning yet?

|10.26.04 @ 11:21PM|#

RDale,

Freedom of thought and expression requires that it remain legal to hate someone, however emotionally and intellectually bankrupt such a position is.

Hate crimes don't outlaw that freedom of expression though.

Stevo Threadkiller,

And "self-hating Jew" is used against those Jews who are critical of Israel's policies vis a vis the Palestinians. Identity politics swings in a whole lot of mean-spirited directions.

RDale|10.27.04 @ 12:04AM|#

Hate crimes don't outlaw that freedom of expression though.

No, but hate crimes *do* attempt to use legal (if ignorant) behaviour to trump up an act that is already illegal. Killing because of racism (or whatever 'hate') is no more heinous than killing for money (or any other motive). It's all bad.

daddy manager|10.27.04 @ 10:28AM|#

joe is correct that intent is considered when determining the degree of severity in homocide.

However, the big difference between that and "hate crimes" is only the latter considers the "why" of the matter in the determiniation of the harm being done. Punishing someone more for premeditation is merely an extention of the same principles that punish someone for intending to do something bad but not someone who commits a complete accident. Unless, of course, it's "criminal neglect," which, consistently, is treated as something in between. In other words, the degree to which someone intends to do harm is always considered in determing the degree to which a crime has been committed and therefore the degree of punishment.

Not so with "hate crimes." With that, extra punishment is added for the motivation for committing the crime. This may be a subtle difference, and it negates the purity of the "he's just as dead either way" argument, but it is a quite significant difference nevertheless.

Joe, I've said it before and I've said it again. Write the law such that "sending an intimidating message" to others is what is being criminalized, and then prove that in court, and I'm okay with it. Clearly, VERY clearly, a law that increases the criminalization of an act when "the victim [is] the object of the offense because of bias or prejudice" does NOT do this.

And that's because it's pure speculation that killing out of prejudice inherently has more of a 'terroristic' effect that other crimes. If I know a killer is on the loose in my neighborhood, or if I know a particular neighborhood is bad for crime, I have just as much reason to be scared and wary about being there as a black person who knows there's a crazy Nazi in his neighborhood. Now, if the community celebrates the crazy Nazi instead of condemning him, including the chief of police, I wouldn't blame blacks and Jews in the neighborhood for wondering if they're seen as and might be treated by the law as second class citizens. But now we're getting into other issues.

fyodor|10.27.04 @ 10:31AM|#

Dammit, made a joke earlier and forgot to change my "name" back, but "daddy manager" is me, fyodor.

fyodor|10.27.04 @ 10:51AM|#

To put in another, more succinct, way (as if anyone's still reading this thread), what is being distinguished between the different degrees of murders is responsibility for the bad thing that happened, ie someone prematurely died.

"Hate crimes" distinguish between how bad a crime is based on the purpose of the crime.

There's overlap of terminology because both look at "intent" in a broad sense, but parse it down as I just did, and you see they're actually quite different.

|10.27.04 @ 11:29AM|#

"The heinousness of any crime is determined exclusively by the amount of damage done to the victim - not the motivition of the criminal."

Really? Is that why a mechanic who is convicted of negligent homicide for not putting the lug nuts on right gets the same punishment as a mafia hitman?

RDale, no one is talking about criminalizing opinions. We're talking about actions that are already illegal.

"The social effects of the motivation of a 'hate' crime are not substantively different from the social effects of the existence of a serial killer, for example." Yes. Serial killers are subject to more severe penalties than other killers in most states, even if only convicted of one murder. One reason for this is the terror they inspire.

"Burning a cross on one black family's lawn to seek to deny them opportunity is not a crime against black America, it's a crime against all of us." I'm glad you recognize this, and don't believe that the owners of the lawn are the only victim. Thank you for making my point for me.

"Making that victimization the purview of some special group is myopic." There is no "special group" that is provided with heightened protection in hate crime laws. The FBI reports more hate crimes by black people than white people each year.

"If I know a killer is on the loose in my neighborhood, or if I know a particular neighborhood is bad for crime, I have just as much reason to be scared and wary about being there as a black person who knows there's a crazy Nazi in his neighborhood." Yes, you do. However, if you know a killer is on the lose in a neighborhood on the other side of the country, it probably doesn't make any difference to you. Look at what the Rodney King video, and the exoneration of his tormentors, did to black/white relations across the country. That's the difference.

Also, while your parsing makes sense if you look only at the definitions of the words, even the shallowest understanding of American history will demonstrate that there is no real distinction between lynching someone because of prejudice, and lynching because in an attempt to send a message, in the impact it has on race relations. And since it is the seriousness of the crime, and not merely the feelings of the perpetrator, that we agree should be considered, then whether the lynchers consciously desired to send an intimidating message isn't what's important.

As for rewriting the language, I'd like to see something along the lines of "...with the purpose or intent of inspiring terror among a population, effecting a political outcome, or inspiring further terroristic acts."

fyodor|10.27.04 @ 11:59AM|#

Really? Is that why a mechanic who is convicted of negligent homicide for not putting the lug nuts on right gets the same punishment as a mafia hitman?

As I make clear in previous posts you evidently read, Joe, the amount of harm is the same in both cases, but the reason they are treated differently is because the degree of the responsibility for the harm done is seen as different. But one's purpose for comitting a crime does not affect one's responsbility for it.

Serial killers are subject to more severe penalties than other killers in most states, even if only convicted of one murder.

Inform me, Joe, how does this happen? If someone is only convicted of one murder, how is he determined to be a serial killer?? Just because he's suspected in other killings? I don't see how such a thing could be codified without multiple convictions since it would violate the principle of innocent until proven guilty. Regardless, lots of things can contribute to a scary atmosphere. I think the government should be rather circumspect about codifying which acts would be more likely to than others. The primary thing that made the Rodney King incident relevant to the whole country was that it was perpetrated by police. If this wasn't suspected as being a common pattern, then no, it would not have affected blacks on the other side of the country. Meaning it was more than just the behavior of the particular cops in question at issue. Still, this very extreme type of case comes closest to making your point.

As for your change in the language, take out the "bias or prejudice" part because it's besides the point, and I think I might very well be able to live with that, subject to further consideration. Do you really think your allies on the left would accept the increased difficulty that language would bring to making such a charge stick? Either way, glad we've found some common ground!

|10.27.04 @ 12:02PM|#

The FBI reports more hate crimes by black people than white people each year.

This is clearly not true.

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

fyodor|10.27.04 @ 12:09PM|#

RDale, no one is talking about criminalizing opinions. We're talking about actions that are already illegal.

But you're making a crime more of a crime based on the perpetrator's opinion.

Y'know, I have little problem with giving judges leeway in sentencing based extenuating or aggravating circumstances. Based on that I have no problem with someone who shoots someone who challenged him during a robbery he committed to get food for his starving family getting leniency while someone who goes out of his way to look for violence gets the book thrown at him. But when you codify additional punishment for violence for prejudice over violence for any other reason, you're codifying persecution based on one's perspective, which I think is wrong however much I loathe that particular perspective.

|10.27.04 @ 12:39PM|#

joe,

Concerning the Rodney King issue, all the 'hate' crime legislation ever proposed would have had zero effect on that case. If you had mentioned James Byrd, it would have been more relevant, even though I still disagree with the premise of 'hate' crimes.

And we *are* talking about the de facto criminalization of opinion when that opinion is used to amplify the criminality of an event merely because of the existence of that opinion. Murder is a crime, racism (though stupid) is not.

As for the serial killer example, we don't require any embellishments to the law to deal with them, so we don't need any embellishments to the law for 'hate' crimes.

|10.27.04 @ 1:32PM|#

"As I make clear in previous posts you evidently read..." That response was to Gilbert, who asserted that the harm done to the immediate victim is the only factor that is considered in determining penalties, fyodor. I realize your take is more accurate and nuanced, I was responding to him in particular.

"Inform me, Joe, how does this happen? If someone is only convicted of one murder, how is he determined to be a serial killer??" OK, now we're onto semantics. Substitute "thrill killers" if you'd like. The way it works is, a killing done in serial killer fashion - snatching somebody and going to work on them as a fetish - is considered an aggravating circumstance.

I don't know how other lefties would react to the change I suggested. On the one hand, it would take their preferred themes out of the language. OTOH, it would define hate crimes as terrorism, which would certainly be a bump in the current atmosphere, and define bigots as possible terrorists. If I had to guess, I'd predict ferocious internicene warfare among the left - what we refer to as "business as usual."

RDale, I realize the hate crime legislation probably wouldn't apply to the King case, but the point about racially tinged (or otherwise politically tinged) violent crime having a broad impact on society is certainly demonstrated by that case.

fyodor|10.27.04 @ 1:46PM|#

OK, now we're onto semantics. Substitute "thrill killers" if you'd like. The way it works is, a killing done in serial killer fashion - snatching somebody and going to work on them as a fetish - is considered an aggravating circumstance

Semantics or not, I understand a lot better now. I would say this is an aggravating circumstance not so much beccause of its "terrorizing" side effects but rather because it increases the degree of responsibility (because the culprit was quite intentionally and consciously looking to do violence, as opposed to someone who commits violence in the process of a property crime, especially if that only happens after he's challenged) AND because it decreases the level of sympathy one might have for him. Either way, I previously stated my support for considering such aggravating circumstances (which isn't to accuse you of ignoring my posts, only to acknowledge that I'm repeating myself).