What makes a crime a 'hate crime'? And would the Chicago attack qualify?

https://www.washingtonpost.com/video/national/vicious-attack-broadcast-live-on-facebook/2017/01/05/faf47a30-d354-11e6-9651-54a0154cf5b3_video.html

The story about a Chicago assault that, reportedly, involved a group of young black men and women attacking a young white mentally disabled man, shouting "Fuck Trump" and "Fuck white people," led some people to ask about what constitutes a hate crime. The question could equally arise, of course, as to white-on-black hate crimes, as well as the many other hate-crime combinations there can be. It's an important question, and I have some answers.

1. It's generally about the attacker discriminatorily selecting a victim, not about "hate" as such. Under Illinois law, for instance, an assault or other such crime is a hate crime when the victim is selected "by reason of the actual or perceived race, color, creed, religion, ancestry, gender, sexual orientation, physical or mental disability, or national origin of another individual or group of individuals, regardless of the existence of any other motivating factor or factors." Federal law applies a similar definition, though for disability-related crimes it also requires a connection to interstate commerce. (Also, Illinois and federal law vary in some measure as to what kinds of underlying crimes are covered, though both would cover deliberate physical injury.)

The focus, then, isn't on "hate." For instance, if a thief selects a physically disabled victim simply because he thinks it's less likely that the victim will fight back, that too is covered as a hate crime under Illinois law. Likewise, if someone thinks that the police will be less interested in investigating a robbery against a victim from a particular group, selects the victim just because of that ("it's nothing personal") and then injures the victim in the course of the robbery, that too would qualify as a hate crime.

Similarly, the Amish beard-cutting case was prosecuted as a hate crime on the theory that the targets were chosen by fellow Amish perpetrators because of the targets' dissenting religious beliefs within the Amish community. That was reversed on somewhat technical grounds, but the principle still applies: Choosing someone for attack based on his religion would be a hate crime whether the motivation is hatred, theological disagreement or whatever else.

It's possible that the police and prosecutors might be more likely to throw the book at someone who they see as motivated by hatred. But the Illinois statute and the federal statute, like most other hate-crime statutes that I've seen, focus on discriminatory selection, not the underlying emotion behind the selection.

2. The use of racial insults during an attack isn't dispositive, but it is relevant. It's possible that someone was selected for one reason (e.g., personal hostility), but the attacker then used racial insults as a tool for intimidating the person, or out of anger at the person's fighting back. But the use of such insults is of course usually some evidence—sometimes very strong evidence—that the person was targeted based on race.

3. Hate-crime laws have been upheld precisely because they target physical attack, not speech. The Supreme Court in R.A.V. v. City of St. Paul (1992) held (by a 5-4 vote) that a state may not selectively ban speech, even constitutionally unprotected "fighting words," based on its arousing anger or hostility based on race. But the following year, in Wisconsin v. Mitchell (1993), the Supreme Court unanimously held that a state may ban the discriminatory targeting of people for physical attack, precisely because that law focused on discriminatory selection of the target of an attack, rather than on the viewpoint expressed by speech. (Note, by the way, that Mitchell also involved a black-on-white hate crime.)

To be sure, as I noted in No. 2, the defendant's speech will often be used as evidence of why he chose the victim. But such use of speech as evidence of a person's motivation (or, for that matter, of what the person actually did) is routine, and doesn't generally raise a First Amendment problem, see, e.g., Haupt v. United States (1947). To offer one uncontroversial example, my saying "I hate John Smith" is generally fully protected speech; but if John Smith winds up dead, my statement could be used as evidence to show my motive. And that's true even when the statement is political; saying "the IRS is evil" is generally fully protected speech, and "IRS agents deserve to die" is likely so, too (not that I think so myself, whether as to the IRS or John Smith!)—but if an IRS agent is killed, that statement could be used as evidence of motive.

Of course, put together, all the evidence has to prove each element of the crime beyond a reasonable doubt. But the evidence can include speech that, by itself, is fully constitutionally protected.

4. Hate crimes motivated by disability are often as covered as hate crimes motivated by race. I noted that above, but it's worth repeating; Illinois law, for instance, formally treats them the same way (though again it's possible that police and prosecutors may enforce the law differently in such situations).

The rules do differ when it comes to federal law: Federal law covers race-based hate crimes generally (on the theory that such crimes perpetuate the "badges and incidents of slavery," and therefore Congress has the power to punish such crimes under the 13th Amendment) but disability-based hate crimes only when they relate in certain ways to interstate or foreign commerce. If the facts as described in the news story are correct, it's possible—though I'm not sure—that the live-streaming of the video of the attack would be seen as "affect[ing] interstate or foreign commerce," and would thus trigger the federal statute. Likewise if the attackers used a dangerous weapon, such as the knife mentioned in the story, "that has traveled in interstate or foreign commerce."

5. Sometimes, a crime's being a hate crime sharply increases the sentence; sometimes less so.

a. Federal sentencing guidelines generally call for a sentence to be increased by about 40 percent when a crime is a hate crime, though that's just a general guideline.

b. Illinois law makes hate crimes "class 4 felonies," which generally call for a sentence of 1 to 3 years. This is a big deal when an otherwise fairly minor crime—such as a misdemeanor assault or vandalism—is prosecuted as a hate crime.

But here the allegations (again, I'm assuming they're correct, just for the purposes of this post) seem likely to involve kidnapping, which is already a class 2 felony, which generally calls for 3 to 7 years in prison. [UPDATE: Commenter Brian Beck notes that this might be aggravated kidnapping, which is a class X felony, and which therefore calls for a sentence of 6 o 30 years.] And while a judge might well take the crime's being a hate crime into account when deciding which sentence to choose within that range—indeed, Illinois sentencing law specifically mentions that—I don't think there's any fixed guideline on that under Illinois law.

c. That a hate crime may be a federal crime as well as a state one may well make a difference, if federal prosecutors decide to prosecute, because the federal sentences might be higher than the state sentences. But I can't speak with any confidence about that here, since much would depend on the precise facts of the offense.

6. Finally, none of this speaks to whether discriminatory selection of a victim should lead to a higher sentence, or to making a crime federal rather than state; I'm speaking here just about what the law is.