One Step Forward, One Step Back

On Friday, the Alabama House of Representatives voted to broaden the state's hate crimes law to include sexual orientation. It's good news for the GLBT community, which saw a bittersweet outcome that same week. Last Tuesday, Allen Andrade was found guilty of first-degree murder and bias-motivated crime and sentenced to mandatory life in prison for the killing of 18-year-old transgender Angie Zapata.

Andrade's defense had sought a second-degree murder charge, claiming that Andrade killed Zapata in the heat of passion after discovering that Zapata was a he (a.k.a. "a trans-panic"). It took the jury less than two hours to convict him of first degree murder under Colorado's hate-crime law, which included sexual identity and gender as part of the law in 2005.

The case is one of the first in the country to use hate-crime laws as applied to the killing of a transgender person. Andrade's conviction and sentence is being called many things: a first; a landmark; a rallying point for gays, lesbians, bisexuals, and transgenders (GLBT).

The Gay & Lesbian Alliance Against Defamation blog–among others–said:

[H]ate violence[against GLBT people] will not be tolerated.  The jury sent that message loud and clear yesterday afternoon.  It was remarkable to see.

And the political(D) group, Progress Now Colorado, has launched a website, www.angiezapata.com, detailing Ms. Zapata's story. It also has information on the GLBT scene; and recently twittered, "Justice for Angie should be justice for all. Sign to support federal hate crime leg."

There are few people, however, who are calling the conviction what it really is: A step backwards for everyone. Regardless of sexual oriention–be it straight, gay, bisexual, transgender, whatever– the push for hate-crime legislation is a bad idea.

Reason Senior Editor Jacob Sullum explained exactly why that is in a great 1992 piece:

By creating a distinction based on motive, hate-crime laws are bound to punish  people based on their speech since that is usually the only evidence of bigoted motivation. As the Wisconsin Supreme Court observed: "There are numerous instances where the statute can be applied to convert a misdemeanor to a felony merely because of the spoken word"….

With such careful distinctions to be made, there's always the danger that less conscientious prosecutors might abuse their discretion. In any case that involves a slur or an element of bigotry, prosecutors can choose to bring hatecrime charges, automatically boosting the penalty that the defendant might face.

And again in 2007, when a federal hate-crime bill was up for a veto:

It's not a stretch to say that hate crime laws, by their very nature, punish people for their opinions. A mugger who robs a Jew because he's well-dressed is punished less severely than a mugger who robs a Jew based on the belief that Jews get their money only by cheating Christians. A thug who beats an old lady in a wheelchair just for fun is punished less severely than a thug who does so because he believes disabled people are leeches….

The fact that Andrade was convicted for his opinions while in custody, as much for his actual crime, is fairly evident. As sharply observed by CNN's Jami Floyd, Andrade was certainly homophobic, but "what was not proved [at the trial] was premeditation." In his closing statement, Chief Deputy District Attorney Robb Miller told jurors that "Everyone deserves equal protection under the law." He's right. Everyone deserves equal protection. Even those on trial. Even homophobes.

Today is the first day gay Iowans can apply for a marriage license and GLBT groups are no doubt (and rightfully) applauding the event as a step toward equality for persons of every stripe. But these same groups should be careful when pushing for hate crime laws. The death of Angie Zapata is tragic and Andrade deserved punished for the physical crime he admitted to doing. But by calling for hate crime legislation, GLBT advocates walk an ethically shaky line similar to the pro-life-and-pro-death-penalty crowd. To demand equal treatment in marriage, while advocating discriminatory protection in regards to violence and speech sends a confusing message: What is really being sought, equality or special privileges? Here's hoping the Zapata family eventually finds some peace; that everyone can get hitched how they see fit, and that no one is punished for what they think.

Cathy Young has a recent story on what some liberals really think of free speech. Associate Editor Damon W. Root and Sullum discuss the Iowa gay marriage decision here and here. Reason on hate crime here.

Comments

[Tony]

If hate crimes legislation exists, I'm happy about extending it to account for LGBT people.

I don't think it should necessarily exist.

But not for the reason that it punishes people for their thoughts.

All crimes take motive into account. Motive is thought. Murder is graded based on what was going on inside the murderer's head.

[Solana]

Someone once said to me, "If you intend to kill a person, and then you kill him, whether he's black or white, or he slept with your girlfriend, or he hurt someone in your family, or whatever... aren't the odds that you probably hated him? Aren't a lot of violent crimes hate crimes?"

[JP]

Good question, Solana. Maybe it's the non-hate crimes that should get extra punishment. Those are the real psychos.

[Anonymous]

Yawn. Thought crime for thee, but not for me.

[parse]

In an encouraging development, the Sylvia Rivera Law Project (which works to fight discrimination against transgendered individuals)joined several other GLBTQ groups in opposing the proposed New York state law prohibiting discrimination based on gender identity because the proposed legislation included support for hate crime laws. From their letter:

It pains us that we nevertheless cannot support the current GENDA bill, because we cannot and will not support hate crimes legislation. Rather than serving as protection for oppressed people, the hate crimes portion of this law may expose our communities to more danger-from prejudiced institutions far more powerful and pervasive than individual bigots.

The full text of the letter is here: http://srlp.org/node/301

[Paul]

(a.k.a. "a trans-panic").

What happens when you realize you're in over your head after deciding to work on your own automatic transmission to "save money".

Tony:

All crimes take motive into account. Motive is thought. Murder is graded based on what was going on inside the murderer's head.

To a point.

Agreed that we punish people more for the premeditated act, vs. the crime of passion. But think about it, we don't specify what the premeditation was. Motive only provides evidence for the crime, not the punishment itself. Once premeditation is established, the criminal is punished accordingly. The justice system need not consider how much the perpetrator hated the victim, how much of a poopy-head he thought his victim was. Why should a kid randomly killing a stranger because of a gang initiation carry a lighter sentence than someone I kill because I "think them Asians are a bunch of uppity smarty-pants'"

[Fluffy]

I actually am more supportive of hate crimes legislation than I once was, and more supportive than Reason's staffers, because it's really easy to demonstrate that state of mind is an element of lots of other crimes, so including it for these types of crimes is not as much of a stretch as it might appear at first blush.

That being said, I do think that in some limited cases a "gay panic" defense is actually legitimate. The defense has a bad rap because of the defendants who have tried to use it so far. But I think there is a huge difference between applying the hate crimes law to someone who meets up with a bunch of his redneck buddies to specifically go out and find gay people to bash, and applying the hate crimes law to someone who says, "Well, I was making out with this chick, and I reached down and suddenly discovered it was a man who had just tricked me, and I got pissed off and punched him in the head". I think the first guy has committed a hate crime, and the second guy committed manslaughter as a result of an extreme emotional disturbance.

[NAL]

If hate crimes legislation exists, I'm happy about extending it to account for LGBT people.

Well, naturally. You're a liberal who divides all groups of people into the special victims and white heterosexual males.

Let's see it become a special hate crime for a gay person to kill a white heterosexual male for opposing gay marriage and see how you feel about it. For example, Gay people hate Christian fundamentalists at least as much as the reverse, if not much more so, but there is no special category of crime to protect the fundies.

[Shannon Love]

Tony,

Motive is thought. Murder is graded based on what was going on inside the murderer's head.

Not really. Motive is only examined to determine if the person was likely to have committed the crime. If an individual has no discernible reason to kill that makes it less likely that they committed the crime. Thought is also a factor in premeditation which is used only to judge the appropriate sentence because a person who planned the crime is judged more dangerous than someone who acted on impulse.

What we have here is the idea that certain motives are punished more harshly than others which is a novel concept in our law. Perviously, it did not matter if you plotted someone's death because they slept with your spouse, cheated you financially, etc it only mattered that you plotted their death.

[Elemenope]

While I disagree with hate-crime legislation (Dead is dead, and the why of being murdered matters little to the dead guy), I think the point of it is being somewhat missed, here.

To jump off a parallel conversation I was having with Mad Max on another thread, bigotry against groups can thrive in a very mundane way so long as there is social cover for the motivating beliefs; people generally feel comfortable saying disparaging things about Catholics or Atheists becuase the society at large does not really systematically castigate such opinions.

How people learn what to accept and what to shun/hate is a function of social conditioning, with institutions (family, school, church, government) giving constant signals about what one should accept and what one should hate. Think about the evolution of the social stigma against marijuana; a large continuing part of that stigma is *because* marijuana is illegal, hence people who smoke/sell are lawbreakers, and lawbreakers are socially castigated because they are lawbreakers.

Thus, the law is an inevitable part (imo, a powerful one) in the general formation of social mores. Does that mean that the law should be used as a tool for social engineering? I don't think so (like I said, I don't dig hate-crime laws), but understand that it is the recognition of certain things being implicitly "OK" (i.e. not castigated officially) that helps bigotry to find fertile ground. That's the target that hate-crime law supporters are aiming at, not the caviling distinctions about whether one type of murder is somehow worse than another.

[R C Dean]

But by calling for hate crime legislation, GLBT advocates walk an ethically shaky line similar to the pro-life-and-pro-death-penalty crowd.

Not really. The motto is "abortion is murder." Murder is a wrongful killing. An execution after due process is not a wrongful killing. Being pro-life and pro-death penalty is no more ethically shaky than being pro-life and pro-self defense. Neither execution nor killing someone in self-defense are murder as defined by the law and centuries of jurisprudence.

To demand equal treatment in marriage, while advocating discriminatory protection in regards to violence and speech sends a confusing message: What is really being sought, equality or special privileges?

I don't think the message is confusing at all: what is sought by those advocating both gay marriage and hate crimes laws is special privileges.

it's really easy to demonstrate that state of mind is an element of lots of other crimes, so including it for these types of crimes is not as much of a stretch as it might appear at first blush.

Well, yes, but the state of mind required for mens rea is not an ideological state of mind.

[Shannon Love]

Another thought. It came out after the trial the Matthew Shepard's kiler had simply sat out to rob him in a meth fueled rage and that the entire homophobic defense was invented weeks later by his defense. I wonder if the same thing happened in this case?

[Fluffy]

What we have here is the idea that certain motives are punished more harshly than others which is a novel concept in our law.

No, it's not.

The law punishes me more severely if I kill someone because I know he is a policeman.

The law punishes me more severely if I kill someone because I know he is a witness to a crime.

The law punishes me more severely if my motive to kill someone is to facilitate a robbery, then it does if my motive to kill them is because I found them in the act of fucking my wife.

There are a large number of instances where the motive for an act has an impact on the punishment for that act.

[parse]

NAL, you might be surprised from this bit of news from the SRLP letter I excerpted above: Compared to white men, Black men are disproportionately arrested for race-based hate crimes. The second-largest category of race-based hate crimes tracked by the FBI is crimes committed against white people. Every year, the FBI reports a number of so-called "anti-heterosexual" hate crimes-incidents where members of the LGBT community have been prosecuted for supposedly targeting straight people with criminal acts

Also, because many hate crime laws do provide enhanced penalties for assaults based on religious bias, your assertion that "there is no special category of crime to protect the fundies" is simply untrue.

[Geotpf]

Anybody who makes this argument must also be against the seperation of manslaughter and murder, and of first and second degrees of both, since they factor in state of mind and motive. That is, if you are saying a hate crime enhancement is bad because it factors in state of mind and motive, you are also saying that all illegal killings should be punished equally, without regard to the individual circumstances. That's, well, retarded.

[DADIODADDY]

Never speak when you can wink, never wink when you can nod, never nod when you can shrug never shrug when you can smile, and never never never write anything down. I got your hate crime right here, you lousy (insert special case adjective here)

[cls]

I would agree with most of the sentiment, even if I thought it was poorly expressed. In particular I would note that being transgendered is not "sexual orientation." Gender identity is a separate category from sexual orientation. One may be transgendered and be straight, gay, or bi. Gender identity is how one perceives their own gender and is thus not related directly to sexual orientation.

[Mo]

Thought is also a factor in premeditation which is used only to judge the appropriate sentence because a person who planned the crime is judged more dangerous than someone who acted on impulse.

Why is a guy that kills his wife after finding out she slept with another guy more dangerous if he planned it than if he just flipped out when walking in on it? Couldn't you say that a guy that kills based on race/gender/sexual orientation is more dangerous than a person that killed for something else?

Another thought. It came out after the trial the Matthew Shepard's kiler had simply sat out to rob him in a meth fueled rage and that the entire homophobic defense was invented weeks later by his defense. I wonder if the same thing happened in this case?

Then this guy has a shitty lawyer because it got him first degree.

[Team America]

*Offers Jeff a virtual beer*

[parse]

Thus, the law is an inevitable part (imo, a powerful one) in the general formation of social mores. Does that mean that the law should be used as a tool for social engineering? I don't think so (like I said, I don't dig hate-crime laws), but understand that it is the recognition of certain things being implicitly "OK" (i.e. not castigated officially) that helps bigotry to find fertile ground.

Wouldn't prosecuting crimes against victims from oppressed classes with equal vigor used in prosecuting crimes against privileged classes serve that purpose?

And for all of those who say that state of mind has always factored into calculations of criminal cupability, and that hate crimes laws are therefore no big deal, how would you feel if the laws said people who murdered gay people should only serve half the time as those who killed straights?

[ed]

"What is really being sought, equality or special privileges?"

Both, of course.

[p/v]

after discovering that Zapata was a he (a.k.a. "a trans-panic").

I wonder how many times this has happened to Epi.

[Elemenope]

Wouldn't prosecuting crimes against victims from oppressed classes with equal vigor used in prosecuting crimes against privileged classes serve that purpose?

No, on the simple but obvious grounds that almost no criminal actually believes they will be caught. The social effect of laws impinges on people via the mechanism of their existing and being enforced generally, not on the prior probability of their being enforced on *them* specifically.

And for all of those who say that state of mind has always factored into calculations of criminal culpability, and that hate crimes laws are therefore no big deal, how would you feel if the laws said people who murdered gay people should only serve half the time as those who killed straights?

One would be a state through it's laws saying that the consequence of murder is ameliorated by the status of the victim, and other other is the law stating that the consequence of murder is exacerbated by the same.

The point of your hypothetical only makes sense of you neglect to take into account that the default (murder with no special circumstances) is itself viewed and treated as a serious matter for which heavy punishment is justified. Whether murder itself is or is not acceptable is not up for debate, and so such a law ameliorating responsibility because the victim was a member of a specific class is not a reasonable thing to expect from the current or any related framework.

[JS]

"be careful"? "walk an ethically shaky line"?

What radicalism!

Call it what it is, Winkler: fundametally anti-libertarian and wrong.

[parse]

No, on the simple but obvious grounds that almost no criminal actually believes they will be caught. The social effect of laws impinges on people via the mechanism of their existing and being enforced generally, not on the prior probability of their being enforced on *them* specifically.

I don't get your point here. You said the point that advocates of hate crime law were aiming at was that it's the recognition of certain things being implicitly "OK" (i.e. not castigated officially) that helps bigotry to find fertile ground. But attacks on people who are protected by hate crimes laws are castigated officially, unless those responsible for enforcement fail to act in cases involving certain classes of people. Why wouldn't scrupulous enforcement of existing laws against violence represent official castigation when applied in cases where the victims were from those classes identified by hate crimes legislation?

One would be a state through it's laws saying that the consequence of murder is ameliorated by the status of the victim, and other other is the law stating that the consequence of murder is exacerbated by the same.

Yes, I didn't articulate my point clearly. I was trying to say that many of us who argue against hate crimes laws aren't claiming that motive or state of mind has no place in criminal proceedings, but that what role a defendant's thoughts and feelings should properly play in determining the proper sentence for a crime is the question we are asking.

[J sub D]

It's not a stretch to say that hate crime laws, by their very nature, punish people for their opinions.

And it belittles all of the people who were victims of crime for other reasons.

Is beating someone up because they're black any worse than doing it because you're jealous?

[Elemenope]

But attacks on people who are protected by hate crimes laws are castigated officially...

Ah, I see the confusion. Yes, they are. I thought you were arguing that such laws shouldn't exist, and on that basis I argued in the state of lacking such laws, enforcement of existing laws would be ineffective in reaching the policy goal no matter how scrupulously enforced.

[ed]

Heavily armed homosexual walks into a well-known gay bar and shouts, "I hate you faggots!" before opening fire, killing dozens. Hate crime? Discuss.

[crimethink]

Being pro-life and pro-death penalty is no more ethically shaky than being pro-life and pro-self defense.

RC, I think Winkler is just taking a gratuitous swipe at social conservatives to continue being one of the cool kids after delivering a post that is not entirely in tune with the gay lobby's wishes.

We've seen time and time again, indeed on this here thread, that some H&R "libertarians" consider freedom of thought less important than supporting the gay side of every issue.

[Paul]

Hate crime legislation also creates an entirely new opportunity for unequal justice. For instance, what can a middle-aged white male be a victim re: hate crime legislation. And for a group to be specifically included in hate crimes legislation seems to violate the equal protection clause of the constitution. You know, like the fucking Violence Against Women Act? anyone? Beuller? Anyone?

[libertymike]

Elemenope and Fluffy-

Are you guys okay?

No mention of the barbaric prosecutorial abuses in Canada, France, Austria, Germany et al? Today, Germany is considering issuing an arrest warrant for Bishop Williamson. Sure, some may consider him a raving lunatic for questioning the extent of the jewish holocaust; others may shout that the good father is an existential threat to "deomocracy" and "multiculturalism" and that he poses a significant risk in that he could "incite hatred" and should therefore be arrested, prosecuted, incarcerated and "re-educated."

We all know that the bishop has not aggressed; he has not violated the non-coercion principle. Yet, he may very well be arrested and prosecuted for merely expressing his opinion. Sure, that opinion may not mesh with the Simon Wiesenthal Center or with Elie Wiesel-but too fucking bad.

The bottom line is that we live in a world where the so called civilized and "tolerant" societies see fit to punish people for expressing opimions at odds with the ruling hate speech orthodoxy.

[libertymike]

It says here that hate speech laws are just another tool for tyrants.

[MB]

All hate crimes do is support the idea that blacks are different from whites, that homosexuals need to be treated differently from non-homos, that we aren't the same. But instead, we should all be treated the same, with the same laws and the same punishments for the same crimes. For in that way Cartman can be freed from prison, and we will have a chance to win the sledding race on Thursday.

That is our presentation. An idea that we call? "Hate Crime Laws: A Savage Hypocracy."

[prolefeed]

No, on the simple but obvious grounds that almost no criminal actually believes they will be caught.

Ummm, LMNOP, quite a few people commit crimes knowing there is a significant probability they will get caught, or not thinking about the consequences during an emotional moment. This statement is clearly not true.

The premise behind hate crime laws is to introduce crimethink as a criminal act to be punished, rather than subtle but crucially different things such as distinguishing between premeditation and crimes of passion, or having harsher penalties for attacking a police officer. The premise of hate crime laws is that certain politically favored classes deserve greater protection than others.

[Elemenope]

Ummm, LMNOP, quite a few people commit crimes knowing there is a significant probability they will get caught, or not thinking about the consequences during an emotional moment. This statement is clearly not true.

I'll give you the emotional moment, but premeditated crime is undertaken generally on the assumption that the fruits of the crime can afterwards be enjoyed in freedom, which usually requires not being caught.

The premise of hate crime laws is that certain politically favored classes deserve greater protection than others.

No, the premise is that certain classes require greater de jure protection so that they may enjoy equal de facto protection.

It's one thing to disagree with hate crime laws (which I, incidentally, do). It's quite another to set up strawmen for their intended policy goals and motivations.

[jtuf]

Winkler, I agree with your stance.

[EJM]

I might as well plug the recent commentary by TRI's John Whitehead against hate-crimes legislation (especially at the federal level).

[Fluffy]

Libertymike,

Who here has said anything about prosecuting Holocaust denial?

All I have done is argue that existing law distinguishes both between victims and between motives for all sorts of crimes, and that therefore it's stupid to argue that a new law that does those two things is somehow out of bounds.

If you want to make wholesale changes to the law to wipe out all distinctions between victims on equal protection grounds, and all distinctions between motives on First Amendment grounds, I'll entertain a discussion of that. But I'm not hearing that suggested.

[MJ]

"There are a large number of instances where the motive for an act has an impact on the punishment for that act."-Fluffy

The instances you cite all have another crime involved. Obstructing justice, robbery (the greater sentence there is to provide a disincentive to removing witnesses), etc.

What is the other crime involved that justifies hate-crime laws beyond holding a politcally incorrect dislike?

[MJ]

"...I think Winkler is just taking a gratuitous swipe at social conservatives..."- crimethink

Yes, I have always thought that the pro-abortions rights/anti-death penalty box in that matrix is the most cognitively dissonant of the four possibilities. Pro-life/pro-death penalty takes some thought as to why it works logically, but there really is no explaning the former position with any coherent rationale.

[self jealousy]

as a gay male, i want to know when crimes against libertarians will make the hate crime cut. my gay self is feeling "excluded" from my libertarian self.

[Elemenope]

Yes, I have always thought that the pro-abortions rights/anti-death penalty box in that matrix is the most cognitively dissonant of the four possibilities. Pro-life/pro-death penalty takes some thought as to why it works logically, but there really is no explaining the former position with any coherent rationale.

I'm game. Why is the first dissonant but the second 'just take a little thought'?

[MJ]

See RC dean's comment at 5:06 pm for the second.

For the first, the anti-death penalty argument is that it is of such tremondous moral consequence for the state to take the life of a person guilty of murder(s), even if that person is given due process that it cannot be allowed. To simultaneously believe that an innocent human life can be snuffed out legally on mere whim because it is in the wrong place requires such a large moral and ethical blind spot that it defies description.

[Elemenope]

MJ, not if you do not accept the premise that a fetus is a human being.

[parse]

MJ, not if you do not accept the premise that a fetus is a human being.

The stance that actually confuses me is the pro-choice/militant-vegan PETA supporter.

[Janet]

Yes, I have always thought that the pro-abortions rights/anti-death penalty box in that matrix is the most cognitively dissonant of the four possibilities.

True, if you support the death penalty then you should support abortion because death is death.

[R C Dean]

Pro-life/pro-death penalty takes some thought as to why it works logically, but there really is no explaning the former position with any coherent rationale.

Other, of course, than the belief that some killings are justified (self-defense, after due process) and some not (murder, abortion).

[MJ]

Elemenope, then you fail biology.

It also does not explain the thinking significant number pro-abortion rights supporters who do not dehumanize the unborn in order to rationalize their position.

[Adidas ZX 500 adi-chaussures.c]

there are some confusing problem happened in life in the most time.we could define it hardly,but the murder in this case is guilty,there is no reason to take a life away no matter for what.on the other hand,the bisexual and transgender deserve to be respected.