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Hate crime legislation as punishing speech.

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By Kendall J from The Crucible & Column,cross-posted by MetaBlog

Wendy Kaminer had a great piece in the October 26th Wall Street Journal. In "The Return of the Though Police" she characterizes hate crimes as punishment of the thought or ideas that accompany a criminals commission of an act. That is, a "hate crime" is nothing more than a package of a crime and the thought that goes along with it. As such, it is a false concept, and leads to the politicization of crime.

Still, distinguishing hateful bias crimes from other hateful acts of violence punishes ideas and expression, no matter how scrupulously the legislation is crafted. When someone convicted of assaulting one woman is subject to an enhanced prison sentence or a more vigorous prosecution because his assault was motivated by a hateful belief in the inherent inferiority of all women, then he is being punished for his thoughts as well as his conduct.

I went searching for other expressions of this opinion and found two great op-eds at ARI. One by Robert Tracisnki and the other by ARI Director Yaron Brook.

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Is violating someone else's rights without the intention of doing so a crime?

if not then is the violating of rights allowed only when it is by mistake?

Other than a positive intention, a perpetrator can also be so negligent that the law essentially holds the act is still a crime. If the violation was not negligent nor intentional, then it cannot be a crime. The person may still have to compensate the victim, but it would be a civil suit. At least that's my understanding of that way things are.

I'm not sure what the question has to do with "hate crimes" though? Did you mean it in relation to hate crimes, or would you like to split this into a different topic?

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By Kendall J from The Crucible & Column,cross-posted by MetaBlog

Wendy Kaminer had a great piece in the October 26th Wall Street Journal. In "The Return of the Though Police" she characterizes hate crimes as punishment of the thought or ideas that accompany a criminals commission of an act. That is, a "hate crime" is nothing more than a package of a crime and the thought that goes along with it. As such, it is a false concept, and leads to the politicization of crime.

Still, distinguishing hateful bias crimes from other hateful acts of violence punishes ideas and expression, no matter how scrupulously the legislation is crafted. When someone convicted of assaulting one woman is subject to an enhanced prison sentence or a more vigorous prosecution because his assault was motivated by a hateful belief in the inherent inferiority of all women, then he is being punished for his thoughts as well as his conduct.

With your kind permission, I would like to embed this issue in a somewhat more general question: should we factor in the "state of mind" of a perpetrator in deciding degree of guilt and punishment for wrongful acts? The question of hate crime (so-called) fits nicely into this question.

In the case of homicide we distinguish between unintentional/accidental homicide; impulsive homicide not previously planned; and premeditated homicide. This correspond to "states of mind" (or the lack thereof) and are used in setting punishment levels.

The same gradation can be applied to physical assault and battery. Did one bump another person (possibly injuring him) unintentionally. If so, it is handled as a tort and possibly culpable negligence. Or did the physical battery result from an angry impulse (usually accompanied by -fighting words-). Or was it planned? If planned, was it planned for reasons of bigotry or race hatred (as in a pogrom) or was it done purely for wrongful gain or was it revenge? So "states of mind" can be factored in to determine the punishment level.

In this context I do not see "hate crime" as being out of line as a factor for determining punishment. Whether we should punish a person more for committing a "hate-crime" is a second question. I would be disinclined to make this the most culpable motive and make the punishment greater. For example: the local thug throws a brick through a window. If the window happens to be the window of a synagogue, should that make the punishment greater? Or should it be handled as a standard case of vandalism and property destruction? If a person paints the image of a flower on the door of synagogue is this a lesser crime than painting a swastica on the same door? I would punish these wrongdoings equally. No one has a right to deface anyone else's property. End of question. It is misdemeanor and should be accompanied by a fine to cover the damages to pay for restoring the door to its prior state. On this other hand, if the vandal painted "kill the Jews" on the door, I would up the crime to assault, i.e. threat to do bodily damage. That is a greater crime than mere vandalism. Why? Because there is an intent to do bodily harm or to put fear in the heart of the victim. Making someone afraid for their life or safety is a felony, whatever the motive.

What is your opinion?

Bob Kolker
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Is violating someone else's rights without the intention of doing so a crime?
The clever Latins have a slogan for everything -- actus non facit reum nisi mens sit rea 'the act does not make a person guilty unless the mind is also guilty'. However, there are some strict liability crimes in the US, usually traffic and parking offenses. In tort law, OTOH, strict liability is pretty major especially for product liability. So to give a leading answer, the concept of "crime" already does do beyond the simple question of the action. But the anti-concept "hate crime" does not address the category "crime carried out because of some hatred", it specifically states that particular federally recognized groups have special protection under the law (in violation of the equal protection clause). Killing Smith because you hate him for seducing your wife is thus not a hate crime, but calmly and dispassionately holding that god hates fags and killing a man for being gay as "god's will" is a hate crime.

The tricky part is to make minimal inquiry into the actors mental state. It is necessary in a just society to know that the person was aware that they are committing a wrong act (not an accident), that they can distinguish right and wrong (insanity) and that they were not acting in justified fear of their life (self-defense). I could go either way on the difference between first degree and second degree murder. Otherwise, I don't see that we need to inquire into the mental state of the actor, and love crimes should be treated just like hate crimes. Any further distinctions should justified on the basis of objective consideration of the act, and not political agenda.

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Other than a positive intention, a perpetrator can also be so negligent that the law essentially holds the act is still a crime. If the violation was not negligent nor intentional, then it cannot be a crime. The person may still have to compensate the victim, but it would be a civil suit. At least that's my understanding of that way things are.

Culpable negligence and reckless endangerment even when there is no intent to commit a felony can merit serious punishment. For example DWI resulting in death or serious injury rates a jail term in some states, particularly if it is a repeat offense. A drunkard behind the wheel probably has no intention of hurting anyone, but because he is (1) impaired and (2) driving an automobile on the public roads, he has become a menace to life and limb. This is a serious wrong and in some locales it is beyond a mere license suspension and a heavy fine. In cases like this there will be both jail time and possibly damage awards in an associated tort case.

Bob Kolker

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But the anti-concept "hate crime" does not address the category "crime carried out because of some hatred", it specifically states that particular federally recognized groups have special protection under the law (in violation of the equal protection clause). Killing Smith because you hate him for seducing your wife is thus not a hate crime, but calmly and dispassionately holding that god hates fags and killing a man for being gay as "god's will" is a hate crime.

David makes the key point here. "Hate crime" is an anti-concept, a package deal if you will. An anti-concept takes some element of correct assessment, and combines it with some element of incorrect assessment. And it's sole end or consequence is to destroy the good aspect.

So for instance "diversity" for those who defend it, is supposed to be about removing racial bias from the workplace so that we can focus on merit. Its real consequence is that is removes the idea of merit from the workplace.

Note that the distinction here is that one should consider the mental state of the accused, but not necessarily pick apart the specific ideas that led to that state. So that would lead us to ask if the crime was committed with malice (let's say). One considers the idea only as a fact that it is evidence that there was malice. However, a "hate crime" focuses on the specific idea, and only a few of the ones that could lead to malice at that, and need not actually show the resulting mental state. The net result ultimately is that the mental state of the accused will be minimized and only his ideas will be examined.

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  • 1 year later...

*** Mod's note: Merged with an earlier topic. - sN ***

I just read that if a person confesses to a murder and admits it was racially motivated the punishment is more severe....

In the act of murder what difference does motive make, whether it was pre-meditated or racially motivated? The end result is the victims death so of what concern is the mind of a killer ?

Edited by softwareNerd
Added 'merged' notice
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Hate crimes are the governments way of punishing an individual for thoughts. In other words, thought crimes. Dead is dead, no matter if the murderer was thinking a racial epithet or thinking of a daisy. All hate crimes legislation is unconstitutional, in my opinion.

Edited by Maximus
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What happens when the crime is not committed by any person who can be identified any other way than by the fact that they hated the group to which the individual that they killed happened to belong?

Hate crime legislation does fill a gap in standard policing techniques. Hate crimes are harder to enforce and prosecute, and while I think we could come up with a broader abstraction to deal with crimes that, by nature, are harder to enforce and prosecute, it is useful to have hate crime legislation on the books.

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I just read that if a person confesses to a murder and admits it was racially motivated the punishment is more severe....

In the act of murder what difference does motive make, whether it was pre-meditated or racially motivated? The end result is the victims death so of what concern is the mind of a killer ?

It's pretty much required by law, these days. It is not prosecuting someone for a thought, but it is punishing the guilty because of the magnitude of their immorality, and for coupling particular evil thoughts with actions.

There is a rational basis for distinguishing first and second degree murder (using classical numbering). To coldly and deliberately murder another person is vastly more evil than attacking a person with fatal consequences. Both deserve punishment, but coldly and deliberately murdering a person deserves much more of a punishment. It has never been the case in modern civilized society that we ignore the depths of depravity behind a crime, so reducing the matter to "dead is dead, who cares beyond that" is not a valid legal or moral principle to apply in the dispensing of justice.

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It's still procecuting someone for a thought. It is a PC crime. Motive is a legitimate tool to determine possible guilt, but procecuting someone for the content of thier mind is right out of 1984.

Hate Crimes are often hard to prove without Hate Crime legislation. So the interest here isn't in punishing thought, but in making justice more available to victims of said type of crimes.

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What Hate Crimes laws do is create protected classes, based on race, religion, ethnicity, and nationality. Legislation is pending to include gender, sexual orientation, gender identity, or disability. What this does is extend protection to certain segments of society over others, abrogating the concept of equal protection.

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There is a rational basis for distinguishing first and second degree murder (using classical numbering). To coldly and deliberately murder another person is vastly more evil than attacking a person with fatal consequences.
Yes. These distinctions recognize human nature and reality. For the same reason, killing someone accidentally is in a different legal category. I think jurists over the centuries recognized the ends-means chains. They also recognized the power of thought to control emotion, if given a little time. The laws were framed accordingly.

Thus, the existence of malicious intent is relevant, but the ideology that inspires it is not. There must be as wide a separation of state and ideology.

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Ok, so on one hand if a man kills another because of racially motivated hate that is a "hate crime" but if one gang banger kills another because he hates the other crew that isn't?

Are people trying to say that to premeditateively kill another person indicates an absence of hate unless it is expressed in racial terms? What about the man that kills women because he "hates" them? the kid that "hates" his parents?

This makes no sense whatsoever.

Newsflash! Premeditated murder is a hateful act...

In other news, dog's bark, rain falls. :P

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Ok, so on one hand if a man kills another because of racially motivated hate that is a "hate crime" but if one gang banger kills another because he hates the other crew that isn't?
No on the first point. Hatred is not an element of a so-called "hate crime", and the name is just propaganda. What does count is that the crime was in substantial part motivated by the victim being part of a protected class. A black man can kill a white man without it automatically being a "hate crime", but if he kills a white man because he (the victim) is white, then it counts as a "hate crime". Targetting homosexuals is not subject to special laws, since they are not part of a protected class, whereas targetting Canadians would be (national origin is a protected class).
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No on the first point. Hatred is not an element of a so-called "hate crime", and the name is just propaganda. What does count is that the crime was in substantial part motivated by the victim being part of a protected class. A black man can kill a white man without it automatically being a "hate crime", but if he kills a white man because he (the victim) is white, then it counts as a "hate crime". Targetting homosexuals is not subject to special laws, since they are not part of a protected class, whereas targetting Canadians would be (national origin is a protected class).

I agree with you David, I guess my sarcasm was too subtle :P With regard to homosexuals, in Canada, that act could be considered a "hate crime", but we are much farther down this progressive, PC, reform liberal road than you. :P

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