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Should We Eliminate “Hate” Crimes?

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Last weekend, Fraizer Glenn Miller, a man who we later learned had long ties to the Ku Klux Klan,opened fire at a Jewish Community Center and adult care facility in Overland Park, Kansas, killing three people. According to reports, he was heard to yell “Heil Hitler!” when he was arrested. Since that incident, Miller sits in jail and has been charged with capital murder in the deaths while prosecutors consider whether or not to also charge Miller with hate crimes given his history and the apparent motivation for the attacks. This has promoted Michael McGough of the L.A. Times to wonder whether we need to rethink the idea of “hate crimes”:

 These killings are a reminder of the perplexities that surround hate-crime laws. No one would suggest that the loss of these lives would be any less horrible if the gunman had chosen his victims at random and without regard to their (assumed) religion.

Indeed, one can argue — and I did argue in a column several years ago — that hate-crime laws may have the paradoxical effect of privileging some victims of violence over others. I put it this way: “If their overarching purpose is to affirm the equality of all people, then the law should punish all assaults the same, regardless of the race, gender, religion, sexual orientation, disability or veteran status of the victim. The ‘protected class’ should be human beings.”

(…)

And there are other difficulties with hate-crime laws, both those that define bias-related violence as a distinct crime and those that allow for enhanced penalties for an “ordinary” crime if it is motivated by bigotry. The role of bias in the killings in Overland Park may be obvious, but other situations are more ambiguous. Is an armed robber who utters a racial slur when he shoots a shopkeeper guilty of a hate crime? Are the races of the assailant and the victim relevant?

Finally, the designation of some groups as protected classes in hate-crime laws creates a political demand by others that they also be included. Some laws define hate crimes to include attacks inspired not only by racial or religious bias but also by antipathy to veterans, disabled people, sexual minorities and the elderly. As the list of protected groups gets longer and longer, the law may be approaching a situation in which every crime is a hate crime.

On some level, the idea of “hate crimes” seems nonsensical. After all, if someone is assaulted, raped, or murdered, it really doesn’t matter why they did committed the act and it’s not intuitive that we should treat some crimes differently because the person who commits them is motivated by animus toward someone based on their race, gender, or religion. However, for roughly the last thirty years we as a society have made the decision that people who commit violent crimes for these reasons should be punished more severely than otherwise would be the case. In many cases, these laws have been passed in response to particularly egregious crimes, such as the Matthew Shepard and James Byrd Jr cases, which led to the passage of the 2009 Federal Law under which Miller could potentially be charged.  Additionally, most states now have some version of “hate crimes” laws.

Although McGough does not make the argument, another common objection  to hate crimes laws is that the criminalize thought rather than action. However, there’s little actual merit in this argument. If Miller is charged with a crime, for example,  it won’t be because of what he was thinking, but because of the fact that he acted on those thoughts. In fact, if it were to somehow happen that Miller were acquitted of the charges against him then it would be impossible to convict him of the underlying hate crime. In other words, hate crime laws can generally be seen as sentencing enhancements rather than  separate crimes in and of themselves. In that respect, they’re no different than the statutes passed in many states which provide for longer sentences if someone commits a crime such as burglary with a gun.

Finally, McGough is correct in pointing out that it often isn’t easy to determine when a crime is motivated by bias and when it isn’t. In Miller’s case, the suspects long history with the KKK, not to mention the fact that he yelled out a Nazi salute when he was arrested, makes it fairly apparent that the shootings were motivated by anti-semitism. However, the evidence isn’t always quite that easy in criminal cases, and that leaves open the possibility that there are some bias-motivated crimes that don’t end up getting punished as hate crimes because  the evidence isn’t available. In and of itself, though, that isn’t an argument against hate crimes, it’s simply a reflection of one of the realities of the criminal justice system.  Sometimes, prosecutors are unable to prove a more serious charge in court, for example, but that doesn’t mean that there’s a problem with the law itself.

There is one potentially troubling aspect of the Miller case, however. As noted above, Federal officials in Kansas are leaving open the possibility that Miller could be charged with a hate crime under Federal law if  Kansas authorities fail to bring them. The crime committed here is one that ordinarily would be handled strictly within the confines of the state criminal justice system. However, the 2009 law noted above raises the prospect that Miller could be tried in Federal Court for the acts notwithstanding the fact that the crime did not occur on Federal property and did not involve an attack on Federal Government officials. There really doesn’t seem to me to be any justifiable reason why this should be the case. The courts of Kansas are more than adequate to deal with this matter and, indeed, if Miller is convicted of the charges against him he will likely be sentenced to death. Any Federal charges would simply be dulplicative at that point.  More importantly, though, this strikes me as yet another example of improper Federal intrusion into an area traditionally left to the states. Even if one accepts the necessity of hate crimes laws, there’s no reason to make enforcing  them the job of the Federal Government.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. James Joyner says:

    I’ve never understood the “hate crimes” concept as applied to things that are already felonies. As you say, it really doesn’t matter to me whether the perp murdered the victim because he hates people of a certain demographic or because he’s just an asshole. Further, there are 1st Amendment considerations; we’re essentially punishing people extra for the same action on account of their belief system.

    OTOH, “hate crimes” makes sense for certain lower level offenses. For example, Klansmen burning a cross in a black person’s yard is entirely different than a fraternity prank and painting a swastika on a Jewish person’s home is entirely different from ordinary graffiti. But the issue there isn’t “hate” but rather “terrorism.” It seems to me that terroristic intent on a class of people, rather than “hate,” is the thing that we should distinguish.

    Highly-rated. Helpful or Unhelpful: Thumb up 19 Thumb down 0

  2. michael reynolds says:

    There really doesn’t seem to me to be any justifiable reason why this should be the case.

    Sure there is: Mississippi, 1964.

    Some state governments have in the past taken a benign view toward racist murderers.

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  3. michael reynolds says:

    @James Joyner:

    There are two crimes: murder and terrorism. A hate crime is murder, but it is also terrorism. It is meant to cause fear in a population. So we punish murder + terrorism.

    Highly-rated. Helpful or Unhelpful: Thumb up 23 Thumb down 0

  4. Paul Hooson says:

    It sort of depends on the circumstances what the charge should be. A murder or vandalism charge might fit for some crimes, however more extreme cases of murder or vandalism might be treated as aggravated hate crime offenses if there is a higher level of violence based on the bias. Allowing more classifications of law. allows a prosecutor more leverage in some cases to gather a plea bargain from the defendant. Police should arrest most people under obvious charges, while prosecutors can look at the circumstances to bring further or more serious charges.

    Like or Dislike: Thumb up 1 Thumb down 0

  5. Console says:

    The argument against hate-crime laws is understandable, but not hugely compelling. Let’s parse things down further. Vandalism is vandalism, but I guarantee you that you will get much more scorn from society if you tagged a synagogue with a swastika than if you tagged a store with your name. And rightfully so, because those crimes are only the same in a very generic sense.

    Now, once we get up to something like murder, I see where things get messier. Murder is typically the ultimate crime… to make it more “ultimate” seems strange. But that’s if we pretend that all things are equal. Giving the federal government power to intervene in perceived civil rights cases has a place in American history. This isn’t some weird anomaly. It exists because not all jurisdictions have handled all murder investigations equally. Things that remind people of America’s white supremacist legacy tend to get all this scrutiny, but it’s scrutiny that seems to go out of its way to avoid dealing with any of that legacy. The lady doth protest too much and all that.

    Like or Dislike: Thumb up 9 Thumb down 0

  6. matt bernius says:

    @michael reynolds:

    Sure there is: Mississippi, 1964.

    Some state governments have in the past taken a benign view toward racist murderers.

    This .

    The entire concept of “hate crimes” on the Federal Level was in part to allow the Feds to prosecute when and where local authorities opted not to. There are definitely clear historic examples of this happening.

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  7. superdestroyer says:

    @matt bernius:

    You may be confusing hate crime with civil rights violation. If someone is acquitted of a felony in a state court, the feds can step in with an indictment for civil rights violation.

    One of the arguments against hate crimes is that is seems to be a one way street. A couple of white guys attack a black guy and the feds get involved and the hate crime makes it a more severe crime. However, a couple of black guys attack a white guy and everyone seems to fall over themselves finding a way to claim that is was not a hate/bias crime. See the recent gang beating in Detroit of how this works.

    Hate crimes/bias crimes given prosecutors/law enforcement a club that seems to be used for political reasons and gives them too much discretion.

    Like or Dislike: Thumb up 6 Thumb down 7

  8. KM says:

    The motivations behind a crime matter. In our current system, we take into consideration things like impulsiveness (“passion”) vs planning because it affects the view and scope of the crime. That’s why we have degrees of crime: murder 1, murder 2, manslaughter, etc. Someone is still dead in all of these, and yet society has dictated that one is more serious then the other – thus judging one’s death worse then another’s in legal terms. Motive leads to action; someone who is actively hating on another group will specifically target them, showing advance planning and intent. In other words, they didn’t attack just any old person but rather intentionally sought out specific types of people. It isn’t a crime of passion or opportunity – it is deliberate.

    Perhaps “hate” isn’t the best label due to the linguistic baggage it carries but it certainly does fit into the current structure by defining a legal dimension of perception and motivation. It might behoove us to consider creating a gradation similar to murder/manslaughter in order to be able to proper understand and apply it as a legal term.

    To use LA Times’ example, the slur is indicative of a perception that was in play at the time of the crime. That negative perception (while perhaps not the main motivator) is still there and still affecting the interaction as the perpetrator decided to verbalize it. Thus, the victim would not have been chosen solely based on the slur and so would place much further down then someone who was deliberately targeting individuals with that appellation and then screaming it out in the attack.

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  9. Ron Beasley says:

    @matt bernius: Spot on Matt, it was always intended to give the Feds a chance to prosecute when the states were unwilling to do so. I’ don’t think that applies in this case.

    Like or Dislike: Thumb up 3 Thumb down 0

  10. James Joyner says:

    @michael reynolds: I’m not necessarily opposed to that in the case of, say, a Klan conspiracy murder. It’s an extenuating circumstance that should be considered in sentencing, if nothing else. I’m less persuaded in the case of ordinary jerks who just happen to be racists. That is, I’m not sure there’s any reason that a hothead who’s drunk and a racist and kills a black man who insulted him at a bar should be treated differently under the law than a hothead who’s drunk, no more racist than usual, and kills a black man who insulted him at a bar.

    I’m terms of the “Mississippi” argument, I’m fine with there being overriding federal civil rights statutes that allow prosecution in particularly egregious cases of prosecutorial or jury nullification.

    Like or Dislike: Thumb up 2 Thumb down 0

  11. Matt says:

    Yes hate crimes are dumb. Killing someone is the ultimate in hate crime so why does it matter if the person yelled a word or did so because of a color or sexual orientation? The victim is just as dead either way.

    Like or Dislike: Thumb up 0 Thumb down 3

  12. Matt says:

    @michael reynolds: I don’t see how hate crimes would of done anything to help that. There were already major felonies committed in that situation.

    Also that was 51 years ago. Can we at least get into the 21st century with this stuff?

    Like or Dislike: Thumb up 1 Thumb down 9

  13. michael reynolds says:

    @Matt:

    You’re missing the point, I think. It is possible to commit two crimes in one act, right? For example, you can commit armed robbery leading to murder. Same event, two crimes.

    Okay, the two crimes here are “murder” and “hate crime,” which is to say terrorism – a murder which is either intended to terrorize a minority, or has the effect of doing so as a consequence of specifically targeting said minority.

    Not complicated.

    Like or Dislike: Thumb up 11 Thumb down 1

  14. EddieInCA says:

    @James Joyner:

    Dr. Joyner, an honest question for you:

    Let’s for the sake or argument say Hothead attempts to kill Black Man ONLY because Black Man is black and Hothead is a racist Klansman. However, Hothead is really drunk and only ends up beating Black Man, and not killing him or even severely injuring him.

    Hothead gets charged with assault and battery. Let’s make it Felony Assault and Battery for the sake of argument. I would suggest that he should ALSO be charged with a Hate Crime, because the ONLY reason for the attack was Black Man’s race.

    Question for you: What say you?

    Thank you.

    Like or Dislike: Thumb up 6 Thumb down 1

  15. Nikki says:

    @James Joyner:

    “kills a black man who insulted him at a bar.”

    You said this twice and I’m wondering why. A black man doesn’t have to do anything except be black for a racist to be motivated to kill him. Why did you feel it necessary to have the victim be a participant in his own murder to make your point?

    Like or Dislike: Thumb up 9 Thumb down 0

  16. EddieInCA says:

    @Nikki:

    Exactly my question.

    Like or Dislike: Thumb up 2 Thumb down 0

  17. Although McGough does not make the argument, another common objection to hate crimes laws is that the criminalize thought rather than action.

    No more than a jury or judge having to determine whether the defendant had “malice aforethought” when committing a crime.

    @James Joyner:
    So, if a defendant is accused of raping 13-year-old versus a 21-year-old, should the crime of raping 13-year-old carry a harsher penalty than raping a 21-year-old? Decisions had made when drafting laws, or sentencing guidelines, about what crimes are considered worse based on the conditions of the defendant and victim. Are we going to throw all that out?

    As Chief Justice William Rehnquist once wrote:

    Moreover, the Wisconsin statute singles 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. As Blackstone said long ago, “it is but reasonable that, among crimes of different natures, those should be most severely punished which are the most destructive of the public safety and happiness.” (Wisconsin v. Mitchell, 508 U.S. 476, 487-488 (1993) (citations omitted)

    Like or Dislike: Thumb up 5 Thumb down 0

  18. Slugger says:

    Mens rea is a big deal with certain crimes. If I pull a trigger and kill someone, our system will take different action if I did it because I thought he was a deer, if I thought he was an alien from Mars, if I did it for pay, or if I did it because of ethnic hate. This does not strike me as unusual or novel. Courts make these distinctions all the time.

    Like or Dislike: Thumb up 6 Thumb down 0

  19. bill says:

    @superdestroyer: black on white crime barely makes the news on the national level- like that aussie baseball player that was ‘thrill killed” by some black kids, did they opt for “hate crime status there? i could google it but the fact that it was swept under the rug shows the real media bias.
    white on black crime is beyond minimal, but it’s reported fanatically.
    killing is killing, and killers get a needle here.

    Like or Dislike: Thumb up 5 Thumb down 6

  20. Console says:

    @bill:

    One of the “black” kids in that thrill kill was white. But don’t let facts get in the way of your drudge report race baiting. Actually, of the three killers, one was white, and one was half white.

    Like or Dislike: Thumb up 10 Thumb down 0

  21. Matt says:

    @michael reynolds: I don’t see the difference between murder committed in an act of terrorism and murder by itself. Both cause death and fear. You’re trying to create special classes of people that are worth more and as such if you kill them you’re at risk of doing more time. I don’t think that’s right as I believe everyone is equal.

    @EddieInCA: I’m against it as now you’re saying that being black jerk makes you better and more important then just a white jerk who got beat up for being a jerk.

    One thing I liked about the law here is the concept that justice is blind and everyone is treated equally. Unfortunately it seems quite a few here want some people to be more equal then others.

    Like or Dislike: Thumb up 1 Thumb down 1

  22. Matt says:

    Let us do engage in a hypothetical here. So someone kills you. Does it really matter to you that the killer did it because he didn’t like your color/religion/whatever or if the killer chose you by random?

    Do you really think a raging racist is going to stop mid murder because “oh wait I’m committing a hate crime”??? These laws do nothing but add complication and make people feel good while pretending to be tough on crime.

    The absolute vagueness of the hate crime concept is extremely problematic when trying to codify into law. Hate crimes complicate sentencing guidelines and many other things in criminal matters.

    Like or Dislike: Thumb up 0 Thumb down 1

  23. KM says:

    @Matt :

    Let us do engage in a hypothetical here. So someone kills you. Does it really matter to you that the killer did it because he didn’t like your color/religion/whatever or if the killer chose you by random?

    Does it matter if someone stalks you, plots out your murder in gruesome detail or if it was just a spur of the moment thing? I mean, dead is dead right so who cares if it was completely premeditated or not? Why make a distinction between accidentally killing someone and deliberately killing someone – does the how or why really matter to the dead person? Why bother with any distinctions at all? Hint: the dead don’t decide anything – the living are who gives a damn.

    You are arguing the tired fallacy that criminals don’t care about the law so why bother with the law in the first place. This little canard seems to come up whenever anyone objects to a law they can’t stand but can’t really come up with a logical reason to dispute it. If there is “absolute vagueness” on the legal concept of a hate crime then you should be demanding it be clarified, not whining that since criminals won’t play nice, we should just give up on rules in the first place. As I said before, clean it up, set definitions, make a gradation system that factors into sentencing – from 0 (not a factor at all) to 10 (full-on sole-cause rationale). It’s not as or ill-defined or vague a concept as you’d like to pretend it is.

    Like or Dislike: Thumb up 6 Thumb down 1

  24. Console says:

    @Matt:

    Do you think all hate crimes are dumb or do you agree that there are cases where hate can make a particular crime worse? Should burning a couch in someone’s yard merit the same response as burning a cross?

    Like or Dislike: Thumb up 5 Thumb down 1

  25. EddieInCA says:

    @Matt:

    Matt -

    You’re making the same mistake Dr. Joyner made. You’re basing your premise on the idea that the black man was a jerk, and that’s why he was attacked.

    I’m asking something different, purely for the sake of the argument. What if there was no “black jerk?” What if the black man did nothing at all, and was just attacked for being black by an angry racist? If the white person who attacked him gets charged with Assault and Battery, should there be an additional charge for the hate crime?

    It’s a pretty simple question. No need to muck it up with “black jerk” language.

    Like or Dislike: Thumb up 5 Thumb down 1

  26. Rick DeMent says:

    Is there any need to distinguish between 1st and 2nd degree murder? Shouldn’t murder be murder?

    Like or Dislike: Thumb up 2 Thumb down 0

  27. Barry says:

    @James Joyner: “Further, there are 1st Amendment considerations; we’re essentially punishing people extra for the same action on account of their belief system.”

    That’s not a first amendment issue, once it becomes illegal actions.

    And we already punish people for their beliefs. For example, we have a gradation of punishments for homicide, ranging from self-defence/justifiable through accidental, negligent, willful, to 2nd and 1st degree murder.

    Like or Dislike: Thumb up 3 Thumb down 1

  28. gVOR08 says:

    Adding hate crime to already serious charges does seem silly. But it’s consistent with the general silliness of our legal system which puts great weight on intent and state of mind. Which flies in the face of management training which says reward and punish actions, not thoughts. Which you can’t possibly know anyway.

    But what real harm do hate crime laws do? People talk all the time about the law sending messages. Don’t harm people based on race, creed, sexual preference, etc. seems a reasonable message to send.

    Like or Dislike: Thumb up 2 Thumb down 0

  29. KM says:

    @gVOR08:

    Which flies in the face of management training which says reward and punish actions, not thoughts. Which you can’t possibly know anyway.

    True enough, you can never know for certain what a person’s thinking. However, one can extrapolate an educated guess based off actions and words. For instance, if I address my fellow coworker as a @^#&#& under my breath or behind their back, talk about the good ole’ days from the South when “uppity” people know their place, complain about “urban” youth and welfare – it’s a pretty good bet I have negative mental thoughts about black people that are becoming actionable.

    That’s the thing about pervasive worldviews and beliefs – they don’t just sit in a tiny corner of your mind and twiddle their thumbs your whole life. You tend to express them (actions) and let them help form decisions (motivations). We will never be 100% certain but in most of the time, its kinda blatantly obvious.

    Like or Dislike: Thumb up 1 Thumb down 0

  30. KM says:

    @gVOR08:

    Which flies in the face of management training which says reward and punish actions, not thoughts. Which you can’t possibly know anyway.

    One more thought – this strikes me as a “punish the Do, not the Be” mentality that most societies tend to run on. As in, you can’t and shouldn’t punish someone for being something (a belief holder, thinking a certain way) but can and should for doing something (lashing out on that belief). That’s the complete opposite of what someone who commits a hate crime does: they are punishing someone for being (being gay, being black, being Muslim, being female, etc…) That’s the whole point. The victim didn’t do anything other then be someone – that’s why they were victimized.

    It sounds like the criminal (and some defenders) wants to have the cake and eat it too. What’s good for the goose is good for the gander, after all….

    Like or Dislike: Thumb up 2 Thumb down 0

  31. Jack says:

    This is simply a case of “workplace violence” just like Maj Hassan yelling Alahu Akhbar during the Ft. Hood shootings. Move along, nothing to see here.

    Like or Dislike: Thumb up 1 Thumb down 4

  32. aFloridian says:

    I understand the historical context behind hate crime laws. Not very long ago at all, and not just in the South, blacks were subjected to the widespread and open treatment as second-class citizens suffering small daily slights, and, not infrequently, actual terroristic violence. In other parts of the country, other minorities have seen similar treatment, and even in the last decade we saw the poor treatment of Arab Muslims and other groups that “look like them.”

    As a white person, however, I understand the reticence over hate crime laws, because there is a sense these laws are not applied evenly – that is, that crimes against whites are rarely pursued as hate crimes though whites are certainly subjected to race-motivated bias as well. There is a sense, I think, in all these discussions – hate crimes laws, affirmative action, etc. that whites simply can’t or aren’t victims of race discrimination. Granted, whites remain the dominant economic and social class, so such treatment is much less likely to come from on high, but certainly whites, too, are singled out for criminal violence by virtue of their race.

    For example, visiting the home of some in-laws in the inner-city, I was the only white person I saw for about an hour as we drove around trying to find this shotgun shack off the main road. I don’t ignore the reality that black-on-black crime is a scourge far worse than black-on-white crime or white-on-black crime, but on that day, wasn’t it more likely that I was the potential victim? And why is that? I guess you could argue that, by virtue of being white, they perceive me as likely to be a higher-value (i.e. likely to have more money) target, but isn’t it also possible that the criminal will be motivated by his racial bias against whites? Then again, many of you may not want to recognize that, as I actually know a number of people who have actually told me, point blank, that racism is a white problem, and by definition other races cannot be racists. But I credit that those people are not the smartest ones I know.

    In any case, all of that is really anecdote and conjecture. A better way to look at it is to consider the two principal schools of criminal legal theory: retributivism and utilitarianism. When I was in the law school, my professor was purely a retributivist, i.e. someone who believed punishment for wrongdoing was inherently good and needed no other justification. I was always much more attracted to the utilitarian model. What purpose does the punishment serve? Does it deter? Does it rehabilitate? And I think, from a utilitarian view, hate crimes don’t serve any purpose for deterrence. I simply don’t believe someone is deterred by the addition of hate crimes charges. You could argue that these laws give minorities a sense of justice for crimes committed against them which so long went unpunished. I think the uneven application of these laws mainly just sows the seeds of racial disharmony which leads to crimes of hate in the first place.

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  33. Vast Variety says:

    A crime becomes a hate crime when the base crime is meant to spread fear and terror within a community.

    Like or Dislike: Thumb up 1 Thumb down 0

  34. Franklin says:

    In case anyone is interested:

    recent example of black-on-white violence being charged as hate crime

    Like or Dislike: Thumb up 0 Thumb down 0

  35. Matt Bernius says:

    To @michael reynolds point made up above, here’s a relevant passage from the article that @Franklin posted:

    “As in all cases with multiple defendants we must evaluate each person’s actions individually to assess their alleged criminal conduct,” Wayne County Prosecutor Kym Worthy said. “In the case of the 16-year-old charged as a juvenile, we can prove beyond a reasonable doubt the crimes of assault with intent to do great bodily harm and ethnic intimidation.”

    So in this case they are identifying two different crimes:
    - the crime of assault with intent to do great bodily harm
    - the crime of assault with intent to do ethnic intimidation

    And this is a case where it’s pretty clear to see the necessity of hate crime laws. Not only was this individual assaulting this individual, but they are accused of doing it to send a message to White people to stay out of the neighborhood.

    (The specifics of this case are pretty awful)

    Like or Dislike: Thumb up 3 Thumb down 0

  36. wr says:

    @gVOR08: “But it’s consistent with the general silliness of our legal system which puts great weight on intent and state of mind. Which flies in the face of management training”

    You think our legal system would be LESS silly if it followed management training?

    Like or Dislike: Thumb up 2 Thumb down 0

  37. James Joyner says:

    @EddieInCA: @Nikki: I’m making the argument that being a racist shouldn’t in and of itself be a crime or even additionally punishable. It’s illegal to kill someone who insults you in a bar, regardless of what race they are, and regardless of whether you took additional offense because of their race.

    @Barry: We treat premediated murder differently than homicide that stems from reckless disregard because of intent, not belief.

    If someone kills an abortion clinic doctor because he thinks abortion is murder and the killing is therefore justified, we should punish them for premeditated murder. We shouldn’t additionally punish him because his belief system is nutty.

    I think it’s fine to have a higher gradation of crime for terroristic intent. If you’re targeting blacks or Jews in order to send a message to other blacks and Jews, that’s a separate crime or at least an aggravating factor in the crime. If you’re just a violent asshole and also happen to be a racist, I don’t see why that should carry additional penalty.

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  38. Matt Bernius says:

    @James Joyner:

    If someone kills an abortion clinic doctor because he thinks abortion is murder and the killing is therefore justified, we should punish them for premeditated murder. We shouldn’t additionally punish him because his belief system is nutty.

    Actually, I think this is an excellent scenario to think with. The thing about this scenario is that it potentially has a chilling effect beyond the crime in question.

    Assaulting or killing abortion providers because they provide abortions helps create the sense of an “unsafe” environment for other providers. It could cause individuals to leave the field out of fears for their safety, decreasing overall availability.

    That’s not to say hate crime is the right designation. One might argue for “terrorism” instead, but either way the crime itself has implications/reach that are not accounted for within the basic criminal codes.

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  39. Mr.Anderson says:

    As Michael said, I’m pretty sure the “hate crimes” designation was done to enable the prosecution of racially motivated crimes; if the state refuses to prosecute a case due to widespread racisim, the federal government can directly get involved.

    While I’m skeptical of whether this is needed (or effective) nowdays, the hate crimes designation did let the federal government prosecute crimes that the state would refuse to prosecute for rascist reasons.

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  40. michael reynolds says:

    1) No one is making the argument that it should be illegal to be a racist.

    2) No one is suggesting thought should be punished.

    3) Thus, no one is arguing that a crime committed by a racist should automatically be considered a hate crime.

    4) Obviously single events can involve multiple crimes. For example, rape followed by murder. One event, two crimes.

    5) When a victim is targeted because of his race or sexual identity that is a separate crime. Just like rape and murder.

    6) The state has an interest in punishing both crimes.

    Conclusion: the people arguing against hate crime laws have nothing. Really, nothing. Zip.

    Time for them to reconsider in the face of the obvious fact that their arguments have all been shot down. Shot down multiple times.

    If one cannot cede a point when all one’s arguments have failed, we have to look at your underlying emotional and intellectual state – psychology – for an explanation, since you are operating in a zone beyond reason and logic.

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  41. John D'Geek says:

    @Matt Bernius:

    That’s not to say hate crime is the right designation. One might argue for “terrorism” instead, but either way the crime itself has implications/reach that are not accounted for within the basic criminal codes.

    This.

    My problem with “hate crimes” isn’t the intention of the law, but rather the implementation (at least as described by the media).

    Why do we have “protected groups”? Isn’t because we have accepted that some groups are “more equal than others” (thus, not in need of protection)? Not acceptable to me — if we are really looking for equality (and I certainly am), then we need to cut-out “protected groups” and fully protect everyone. Having “protected groups” creates more than one class of citizen, unequally protected classes at that, which is not only unconstitutional but “just plain wrong”.

    Is it really just Terrorism? If so, then we need treat it as such and quit “down grading” the crime as a “hate crime”. If not … then …

    Okay, so … is there any other motivation other than terrorism (“putting those in their place”; or revenge for perceived slights, a subtle but important variation to the previous) for “hate crimes”? If someone kills me because they don’t like the color of my Shirt — “Hate” — is that equally wrong?

    ——–

    We should also be careful not to “exalt” the crime in the perceptions of the nuts/nitwits/whack jobs that perform these types of crimes.

    Did he yell his phrase because he was guilty? Or because other neo-Nazi’s would have a better view of him, the whole “defiant racism” thing, regardless of guilt? (Remember: he hates society; he doesn’t care how much you hate him, except as a badge of honor).

    It’s not unheard of for innocent people to claim credit for heinous crimes, just for the infamy.

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  42. KM says:

    Why do we have “protected groups”?

    Because we really don’t – we have protected statuses and we have since the Bill of Rights was put down on paper. Religion is a status: you can be fundamentalist, Easter-and-Lilly, atheist, questing, physically-present, true believer, etc. You join the group of your choice based on your status – an atheist doesn’t tend to pick a fundie church and evangelicals don’t do Wiccan circles. Your group association flows from your status and thus the status is what is protected: your right to freedom of religion. Your status as gun owner is protected by the 2nd, your status a citizen is protected by the 14th – need I go on?

    I’m curious as to why people feel “special” groups are being created. We all have these statuses, it’s just the entry on the line that’s different. Female is not a protected status – gender is. Liberal isn’t a protected status – political beliefs are. A straight white Baptist male has the same rights to protected status as a gay Asian Buddhist woman.

    Now if they are not being applied equally, that’s not the law’s fault. That’s cultural, that’s the perception that the majority doesn’t have a status other then “majority”. No one’s getting special or extra rights – it’s just it never occurred to the majority that they can (and should) invoke these rights too.

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  43. Matt Bernius says:

    @John D’Geek:

    Why do we have “protected groups”? Isn’t because we have accepted that some groups are “more equal than others” (thus, not in need of protection)? Not acceptable to me — if we are really looking for equality (and I certainly am), then we need to cut-out “protected groups” and fully protect everyone.

    Just to be clear, hate crimes are not — in theory — about singling out specific groups for special/additional protections. It’s about finding a way to deal with crimes that, while perpetrated against individual victims are also directed at a larger group.

    See @Franklin’s link about the planned application of hate crime laws in a specific case of Black-on-Heterosexual-White-Male violence:
    http://www.freep.com/article/20140410/NEWS01/304100090/Utash-hate-crime-charge

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  44. Grewgills says:

    @James Joyner: @John D’Geek:

    If someone kills an abortion clinic doctor because he thinks abortion is murder and the killing is therefore justified, we should punish them for premeditated murder. We shouldn’t additionally punish him because his belief system is nutty.

    It is the intent, or at least the effect of the act on others, that is being additionally punished rather than the belief. When someone is killed and the motivation (aka intent) is animus against a specific group then that crime has the effect of terrorizing that group. When the man shouts ‘heil hitler’ as he is killing Jewish people (or homosexuals, Rom, etc) he isn’t just killing that person he is putting all others of that group on notice. That is the intent that is being charged.
    This isn’t creating ‘privileged groups’, it is protecting groups that are targeted because of who they are.

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  45. Matt says:

    @KM:

    Does it matter if someone stalks you, plots out your murder in gruesome detail or if it was just a spur of the moment thing? I mean, dead is dead right so who cares if it was completely premeditated or not?

    In that situation the victim is just as dead either way thus the punishment should be the same.

    Why make a distinction between accidentally killing someone and deliberately killing someone – does the how or why really matter to the dead person?

    That’s apples and oranges and you know it. Accidentally killing someone means there was no intent to kill. Killing someone because they are black or just for giggles means the intent to kill was there. There’s a world of a difference in there and you surely know this.

    You are arguing the tired fallacy that criminals don’t care about the law so why bother with the law in the first place.

    No I’m not but the strawman you seem intent on fighting does.

    Do you see me arguing against any form of law? No you see me arguing against creating a special class of people who are worth more in the eyes of the law. You see me arguing against thought crime too. Nothing about me arguing against the laws covering murder and such. The rest of your post is irrelevant.

    @Console:

    Give me an example then because I am not aware of any. As I said before if I’m getting beat it doesn’t matter to me if someone yells faggot while doing the beating. sticks and stones and all that..

    @EddieInCA:

    You’re making the same mistake Dr. Joyner made. You’re basing your premise on the idea that the black man was a jerk, and that’s why he was attacked.

    No I’m not but thanks for not reading my post. MAybe once you actually read what I typed and not what the strawman you created typed we might be able to have a conversation. Otherwise just stop..

    No there shouldn’t be extra “crimes” because the racist picked on a “special class of person”. The natural next step is to start arresting people because they voice unpopular opinions. I wouldn’t be surprised if that’s actually what you wanted. You want to criminalize unpopular speech so that we don’t hurt the feelings of someone somewhere.

    @Rick DeMent:

    Another fallacy. Come on people this is common sense and I can’t believe you can’t see the difference here.

    Also I’d like to mention that in the heat of the moment people will say things they normally don’t say or even believe. I’ve seen gay friends call others fa**ots in a hostile manner while fighting. I’ve seen non racist whites call black people ni**** in the middle of a fight while the normally normally non racist blacks are calling the white people honkeys and such. Do we consider those all hate crimes that require more sentencing just because a word was shouted in the heat of a moment? Can a gay guy really commit a gay hate crime against another gay guy?

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  46. Matt says:

    @gVOR08: How about the message “don’t harm people in general” sound to you?? I can’t help but think that might be better then “don’t harm these specially protected classes of people”….

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  47. Matt says:

    @Franklin: Frankly they should be charged with attempted murder. The man is in a medically induced coma for god’s sake.

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  48. Console says:

    @Matt:

    Give me an example then because I am not aware of any.

    I gave you an example. Do you want another? Is painting a swastika on a synagogue the same as painting your graffiti name on a storefront? Should these crimes be treated exactly the same and painted under the same vandalism brush?

    Hell, let’s break it down even further. Is it worse for a man to beat up another man than it is for him to beat up a woman? Is it worse for him to beat up a child? What about beating up someone in a wheelchair? All these crimes are equal?

    Your problem is that you go from trying to treat people equally to pretending that classes of citizens don’t exist. The former makes sense. The latter leads to a ridiculous sort of obtuseness. There is a difference between treating people equally and pretending that everyone is the same.

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  49. superdestroyer says:

    @Console:

    thanks for making the point that when blacks attack whites, there will always be an effort to prove that it was not a hate/bias crime. Under the definition of the census bureau, all three of the suspects would be classified as black. To claim otherwise is to show why hate crime laws should not exist.

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  50. Console says:

    @superdestroyer:

    Ah yes, the scourge of racists with white parents that hate white people…

    I mean, you do realize you’re trying to define a hate crime by a bureaucratic classification that may or may not even track with what the FBI uses? YOU are why hate crimes can be problematic. It ain’t the idea.

    And isn’t the race a self reporting classification for the census any damn ways?

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  51. KM says:

    @Matt:

    I can’t help but think that might be better then “don’t harm these specially protected classes of people”

    There are no specially protected classes of people. It’s just as illegal to fire someone for being straight as it is to fire them for being gay. It’s just as illegal to refuse to serve Whites as it is to serve Blacks. It’s just as illegal to refuse to hire a male for a job as sole basis as it is for a female. You have the same protection as I do, as every American does.

    You only think there are protected classes because they are the ones invoking the protection the most – the minority asserting rights. Just like there is no such thing as “reverse discrimination” – it’s just plain old discrimination but because it happens to a majority member, it must be different somehow. The majority looks down and complains that the minority is getting extra goodies when everyone has those rights but it never occurs to the majority to think of themselves in these terms.

    White guy gets beat up just for being white? Hate crime, not just assault.
    Male has “slut” carved into him after being sexually assaulted? Hate crime, not just rape.
    Christian being told we don’t serve your kind here, spat on and physically thrown out? Hate crime, not just assault.

    Stop thinking of this in terms of the nebulous Other. You have these protected statuses too.

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  52. michael reynolds says:

    @KM:

    I assume you know you’re wasting your time at this point. @Superdestroyer is a hardcore racist – impervious to reason. I don’t know about @Matt – he may just not be capable of abstract discussion and stuck in a loop motivated by his need to feel victimized.

    In any event, you’re up against an article of faith among conservatives. The “privileged group” nonsense is fundamental to their emotional core, which is all about self-pity, a sense of victimization. They can’t let go of that without letting go of everything that makes them what they are.

    As I said above, we’re now down to the psychological make-up of these individuals.

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  53. KM says:

    @michael reynolds:

    I skipped fencing tonight so I decided to tilt at windmills instead. :)

    In all honesty, I always try and give the benefit of the doubt – assume I’m not communicating my point effectively and try again. Sometimes I’ve been pleasantly surprised – I’ve had some decent back-n-forths. Mostly I just bash my head against the metaphorical wall, say my peace, hope it gets through and then off for some epee since I can’t win the good fight here. Frustration can do wonders for your debate skills and for your bladework.

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  54. michael reynolds says:

    @KM:

    I figured as much. I do the same. Evidently we both have too much time on our hands.

    “Too much sanity may be madness. And maddest of all, to see life as it is and not as it should be.” - Cervantes. Don Quixote, of course.

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  55. Alex says:

    @Matt: “The absolute vagueness of the hate crime concept is extremely problematic when trying to codify into law.”

    Except that actual hate-crime laws aren’t vague. They’re very specifically written and are generally quite hard to prove. In 2010, there were 8,208 reported hate crimes nationwide, out of a total of 1.2 million violent crimes and 9 million property crimes. That is, 0.009% of crimes were formally identified as hate crimes.

    The hate crime haters seem to think that the hate crime designation is thrown around willy-nilly whenever a local law enforcement officer feels the whim to enforce PC lockstepedness. The reality is very different – hate crime designations are very, very rarely used and only under highly constrained circumstances.

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  56. John D'Geek says:

    @Grewgills: While I’m honored to be included on the same line as Dr. J., I am somewhat confused: aren’t you just agreeing with me? “It’s really terrorism, and should be treated as such”?

    @Matt Bernius: “In theory”. Wikipedia has some interesting things to say about how well this theory holds up in reality.

    What’s most interesting, though, is when I went to look up the list of “protected groups/classes” that I know I saw in law somewhere. Seems to be missing. I thought maybe I was thinking of Affirmative Action instead (which is a different can of worms altogether), but I couldn’t find it there either. In either event, my first “harassment training” was flat-out wrong: they made it clear that it was certain groups (which I was excluded from). Of course they also made it clear that it was entirely subjective, which turned out to be wrong.

    And no, it wasn’t on “Fox News” — Fox News didn’t exist when I read this.

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  57. Matt Bernius says:

    @John D’Geek

    “In theory”. Wikipedia has some interesting things to say about how well this theory holds up in reality.

    I’m not sure what you mean by this. Again, here’s what I wrote:

    Just to be clear, hate crimes are not — in theory — about singling out specific groups for special/additional protections. It’s about finding a way to deal with crimes that, while perpetrated against individual victims are also directed at a larger group.

    Here’s what Wikipedia says about Hate Crime statistics in the United States:

    Racist anti-black bias is the most frequently reported hate crime motivation in the United States. Of the 8,208 hate crimes reported to the FBI in 2010, 48% were race related – with 70% of those having an anti-black bias.[7] Other frequently reported bias motivations were anti-Hispanic, anti-Jewish, anti-Islamic, anti-white, and against a person’s perceived sexual orientation.[7] At times, these bias motivations overlap, as violence can be both anti-gay and anti-black, for example.[8]

    The majority of victims of violent hate crime in 2003-2011 were from the White community (65%) followed by Hispanic (15%) and African American groups (13%).[9]
    [Emphasis mine – source:http://en.wikipedia.org/wiki/Hate_crime#Victims_in_the_United_States

    The statistics bare out that hate-crime charges have been brought against people who have attacked people of all skin colors — that seems to support the argument that these laws are not specifically singling out specific groups.

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  58. Matt Bernius says:

    @John D’Geek:
    On the outside chance you are referring to the following section of Wikipedia, I think a couple things need to be called out: http://en.wikipedia.org/wiki/Hate_crime_laws_in_the_United_States#Classification_of_crimes_committed_against_Caucasians

    First is that, in dealing with the actual facts derived from the FBI and other reporting sources, this again demonstrates that X-on-White hate crimes, have been and continue to be prosecuted.

    The rest of this section of the broader article (which has been flagged for editing) reads like a lit review paper in an undergraduate race relations class. In particular the portion that reads:

    P. J. Henry and Felicia Pratto assert that while certain hate crimes (that they do not specify) against white people are a valid category, that one can “speak sensibly of”, and that while such crimes may be the result of racial prejudice, (and therefore if that is the case, they are squarely covered by hate crime legislation intent for prosecution), in a limited definition of the word, they assert do not constitute actual racism per se, because a hate crime against a member of a group that is superior in the alleged and dated power hierarchy by a member of one that is inferior, they believe may not be racist.

    This section isn’t dealing with fact at all. What its doing is vetting an academic/critical theory conversation that has little to do with the application of hate crime laws and further isn’t even necessarily representative of the dominant academic thought within this area.

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  59. KM says:

    @John D’Geek:

    What’s most interesting, though, is when I went to look up the list of “protected groups/classes” that I know I saw in law somewhere. Seems to be missing.

    Funny thing about laws – they’re written down and if changes are made, the original is preserved as well as the annotation/correction. Therefore, you should be able to find it archived in several places along with any other revisions and when they were made. If you can’t, then it means it wasn’t there in the first place. Unless you are insinuating something more nefarious?

    Not to be indelicate, but I suggest your “know” was a “remember” and an incorrect one at that.

    In either event, my first “harassment training” was flat-out wrong: they made it clear that it was certain groups (which I was excluded from).

    Yes, bad training and bad trainers happen. Maybe they added their own prejudices/cultural baggage to the training, maybe they didn’t fully understand the material. Maybe they were crap trainers. Or maybe you heard what you wanted to hear and took away from it something they didn’t intend. In either event, doesn’t change the fact that there are no enumerated-by-name special groups.

    I am curious as to why “harassment training” was in quotes, however. Was this official legal training or was it the generic “don’t be a dick to your co-workers” one every company has? I can see why the work one would tend to focus far more on minorities, seeing as how they tend to be the ones that get most of the crap from ignorant people that can get a company sued.

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