Friday, December 03, 2004

Hate Crimes and Their Punishment - Part II

Boomr wrote a long comment back to me in regards to an earlier post about hate crimes that I thought was worth reposting and commenting on. He makes good points, but as usual, he is wrong (We have been arguing consistently for 12 years - remember Kinshasa, Boomr?). Boomr wrote:

As much as Dingo and I may agree on many things, I think I have to disagree with him on this one -- at least until I have a better argument presented. I respect his argument about mens rea, but I think he takes it a bit too far. Mens rea is the intent to commit a physical act, not the motivation for why the act is committed. I'll put it to you this way: If I consciously pull the trigger of a gun that is pointed at a person, I've committed an act with the requisite mens rea to be charged with homicide. The definition of "homicide" does not need a REASON for why I consciously pulled the trigger. That's why prosecutors are not required to prove motive in criminal trials.

Let me give you another example, to offset Dingo's arguments about lynchings. Let's say the dead body of a minority is found in the middle of a mostly minority neighborhood, with a gunshot wound through the heart. By the way the body is found, there is no overt and public evidence of the motivation behind the murder (no burning crosses, no hangings, no racial epithets painted near the body, etc.), although there is concrete evidence that a murder has in fact been committed. Let's say there are two suspects: one black man and one white man. The police suspect that the black man might have killed the guy in a dispute over a girl -- surely a heated, emotional motivation. The police suspect the white man might have killed the guy in a dispute over racist comments the white guy made. Why should one suspect be treated differently from the other?

As for Dingo's lynching analogy, that is a completely different set of events. As he said, there are strict legal definitions of "terrorism," which come with additional jail time on top of whatever the underlying felony may have been (in this case, murder). The definition of "terrorism" does not discriminate based on the underlying motivation -- as long as there is proof of intent to terrorize a community (ANY community), then terrorism laws apply. Again, why apply the laws differently for race or gender, as opposed to political beliefs? Under the hate crimes laws, killing someone for racist reasons would be worse than killing someone for political reasons, and that just makes no sense to me. The punishment for both should be equally harsh.

When you start legislating based upon what people THINK, that's when you start down a dangerous slippery slope. Racist crimes are abhorrent, and should be prosecuted to the fullest extent of the law, but such crimes can be prosecuted under existing laws without delving into the thoughts of the perpetrator. "Murder" and "terrorism" are sufficiently broad to encompass such crimes, as well as many others, without regulating how people think.


Ahhh... but intent in a "hate crime" is more than just the physical act itself. You are confusing motivation with intent (and I apologize if I did not explain myself well). In order to show this, you have to really break it down to the elemental parts. I will contrast it to your example of the gun.

In your example, the gun is not a crime. The crime is pointing the gun at someone and pulling the trigger with the intent to commit murder - mens rea. The gun, in-and-of-itself is merely a tool used to commit a crime. Therefore, if I point a gun at someone and pull the trigger, I have the intent to commit one, and only one crime - murder.

Now, lets contrast that to a hate crime. When a person commits a hate crime, the murder (lets use a lynching) is the tool (like the gun) in order to commit a crime (terrorism). So, If a person lynches another person in order to terrorize a community, the person has committed two crimes, not just one. He has intended to commit murder and he has intended to commit terrorism. The result is a greater impact and therefore deserves a bigger punishment. The difference is that the tool used to commit the crime is also a crime.

Motivation is not needed to be proven in a hate crime either. A prosecutor does not have to prove why a person committed a hate crime, only that he intended to commit a hate crime. Just like you don't need to prove a reason for committing murder in your example, you don't need to prove a reason in a hate crime either. The prosecutor does not need to delve into the psychological underpinnings of the defendant. Just like the prosecutor needs to use evidence to prove murder - gun with prints on it, bullet matching, eye witnesses - a prosecutor must use evidence to prove hate crimes - manner of killings, burnt crosses, etc.

Further to break down and analyze your example... if the intent of the two suspects is the same, kill the guy. But if the intent of the white man was to kill the black man, and in doing so, send a message to the black community, then the intent is different. As for the definition of terrorism, I was using the Dictionary definition, not the legal definition - Sorry for the confusion.

Secondly, you and I both know that motivation is actually a factor in criminal matters. You can have the intent to kill someone, but the motivation is self defense. Additionally, if a case is based on purely circumstantial evidence, motivation is often used by both the prosecution and the defense to prove or disprove a persons guilt. It is had to pin something on someone where there is absolutely no motivation. Along the same lines, in a hate crime, it is the burden of the prosecution to prove that the perpetrator acted with intent to commit more than just murder. The burden of proof is on the prosecution that the person wanted, not only to commit murder, but to also terrorize a community. If the prosecution cannot prove intent of a hate crime, then a defendant will not be convicted of it. The same thing is true of the underlying murder.

5 comments:

Boomr said...

I'm a little confused about your actual argument, so forgive me if my response rambles.

First, I think your "tool" analogy is stretching it. One crime is not a "tool" for another -- they are two separate crimes. That's like saying breaking and entering is a "tool" for burglary, when in fact they're two separate crimes each punishable by a different prison term. The act of killing intentionally is murder. The act of posing or placing the body of the murder victim in a certain manner to inspire fear in a community is terrorism (in the legal definition). Just like in your analogy -- when you pull the trigger, all you've done is murder. It's what happens AFTER the murder (burning crosses, hanging the body from a tree) that raises it to the level of terrorism. And because they're two different crimes, there are two different punishments. "Terrorism" was a crime long before "hate crimes" were, and in my opinion "terrorism" already encompasses hate crimes, obviating the need for a crime based on what a person thought. Plus, "hate crimes" statutes are fundamentally discriminatory, because they presuppose that a crime based on the motivation to inspire fear into one class of people is worse than a crime based on the motivation to inspire fear into another class of people not considered a "protected class" within the hate crime statutes. I personally feel that's an equal protection problem, but that's a constitutional question for another day.

Second, and more important, I think you're just wrong when you say "Motivation is not needed to be proven in a hate crime either. A prosecutor does not have to prove why a person committed a hate crime, only that he intended to commit a hate crime." Of course motivation needs to be proven, otherwise how do you determine that it's a hate crime? Hate, by definition, is an emotion, a feeling, a thought, not an act. Thus, to call something a "hate" crime necessarily involves a determination of the criminal's emotions -- i.e., his motivation. How do you prove that someone intended to commit a hate crime if you don't prove why he committed the underlying crime? Or are you claiming that every time a person of one race kills a person of another race it's a hate crime? Can a person of one race commit a hate crime against a person of the same race? (See the movie The Believer). I'll put it to you this way: is there such a thing as an attempted hate crime? I don't think so, because in order to have a hate crime, you have to have a criminal act, then prove that the criminal act was motivated by a certain form of hate. Hate by itself is not illegal (as opposed to terrorism, which is by itself illegal), so why is a crime inspired by hate more illegal than the underlying crime?

Finally, your argument about motive in circumstantial cases is misplaced. "Motivation is often used by both the prosecution and the defense to prove or disprove a persons [sic] guilt," you say -- sure, it's used to PROVE THAT THE DEFENDANT PHYSICALLY COMMITTED THE CRIME (i.e., "IF" he committed the crime). In the hate crime context, you're already assuming that the defendant physically committed the crime, and you're speculating as to "WHY" he committed the crime, in order to make a departure from the normal sentencing for the same physical act. In the first context, the motivation does not affect the amount of punishment the defendant could get after conviction -- just whether he gets convicted or not. In the hate crimes context, it materially and substantially affects the punishment doled out to the offender, based on nothing more than what his thoughts were. I find that extremely troublesome.

You and I have had talks about racism before, and we've both expressed our opposition to it, while conceding that the racists in this country have a right to say what they want. If they have the right to make racist statements, and think racist thoughts, and print racist books, and maintain racist websites, and record racist music, why should a crime that those racists commit be considered worse than a crime committed for profit, or for drugs, or for revenge?

When you start splitting hairs based on thoughts, the system becomes a discriminator in itself, and it all of a sudden becomes criminal to think in a certain manner. I don't want that in my society.

Dingo said...

We are talking around each on intent and motivations... I am focusing on the intent of the crime. We can assume that all crime has motivation, otherwise why would it be committed (assuming the person is not a klepto or sociopath). If you steal a wallet, we can infer that the motivation was greed and the intent was to take something that did not belong to you. If you see broken windows on a synagogue and swastikas painted on the walls, we can infer the motivation was not greed, but hatred. All crime is motivated by something. The difference is intent of the perpetrator.
for example - If a kid goes and vandalizes a synagogue by painting "Springdale high school football rules" he is a punk kid out for some laughs. He has committed a crime, but none of the people who worship at that temple would feel targeted or unsafe. His intent was not to strike fear into the Jewish community. Now if that same kid spray paints swastikas and anti-Semitic slogans on the walls, we can infer his motivation was not for laughs, but hate. And due to the nature of the crime, we can infer his intent was to send a message to Jews that they are not welcome in that community. Now, the actual property damage is the same. The paint to cover up the vandalism will cost the exact same, but the damage done to the community is much more in the second instance than in the first. If the damage done is greater, then why should not the punishment.

How do you determine intent? Well, you just have to evaluate the evidence to determine if something is a hate crime or not. If you just have a guy laying dead in the street, it is difficult to determine and most likely a "hate crime" will not be one of the charges even if it was motivated by hate. Now, if you have four dead girls from a bomb going off in the basement of a Black Baptist church, I am willing to make that leap and call it a hate crime.

I agree, we can not, and we should not legislate what people think. But I believe it is perfectly acceptable to let those few Americans who are willing to try to intimidate other Americans through violence, "your actions will not be accepted in our country." You have a right to hate, but you do not have the right to make your fellow Americans fear. Any American can hate all they want, but they don't have the right to act upon that hate.

As for protected classes of persons, I have never seen legislative that only protects certain groups. The text often reads "race, religion,ethnic/national origin, or sexual orientation group." That means that whites are as protected as blacks, men are as protected as women, and heterosexuals are as protected as homosexuals.

Boomr said...

OK, I think you and I agree on the fundamentals -- the physical crime is bad, and the intent to inspire fear in a community is bad. Both should be crimes. I'm with you to that point.

But the "hate" crimes statutes make it MORE of a crime to inspire fear into certain classes, and LESS of a crime to inspire fear into other classes. Let's take your words, for instance -- the race, gender, ethnic/national origin, sexual preference language is great, but it excludes all kinds of other groups. What about political beliefs? What about certain businesses? Why should eco-terrorism be less of a crime than "hate" crimes if the underlying acts and the intent to inspire fear are the same? Why should mafia "protection" crimes -- that surely inspire fear into a class of business people -- be less criminal than racial crimes?

My entire point is that the "hate" crimes statutes are duplicative and discriminatory, given the presence of terrorism statutes already on the state and federal books that protect a much wider class of people. In my opinion, inspiring fear into ANY CLASS OF PEOPLE is a horrible crime. "Hate" crimes only make it criminal to inspire fear into a certain class of people, and I think that's wrong. Terror statutes subsume "hate" crime statutes.

Fear is fear, whether it's fear in a black person, Jewish person, gay person, or fear in a businessman, politician, or other non-protected class. Why should fear in one person be considered worse than fear in another?

Ragriav said...

You say that motivation does not need to be proven, but you are mistaken in that. In fact, it is the very motivation of the criminal that decides whether a crime is an act of hate or not. A hate crime by definition is a usually violent crime MOTIVATED by prejudice or intolerance toward a member of a gender, racial, religious, or social group. For instance, some white guy (or vice versa) could kill a black guy over drug money. The white guy could say racial slurs, but in the end, he was motivated by greed, and not hate. However, someone could say it was a hate crime for what the guy said, even if that assumption is faulty. In the end, in order to PROVE something is a hate crime, you have to KNOW the motivation, and you usually can't know the motivation for anything for certain. Therefore, hate crimes are in a way unjust.

Ragriav said...

You say that motivation does not need to be proven, but you are mistaken in that. In fact, it is the very motivation of the criminal that decides whether a crime is an act of hate or not. A hate crime by definition is a usually violent crime MOTIVATED by prejudice or intolerance toward a member of a gender, racial, religious, or social group. For instance, some white guy (or vice versa) could kill a black guy over drug money. The white guy could say racial slurs, but in the end, he was motivated by greed, and not hate. However, someone could say it was a hate crime for what the guy said, even if that assumption is faulty. In the end, in order to PROVE something is a hate crime, you have to KNOW the motivation, and you usually can't know the motivation for anything for certain. Therefore, hate crimes are in a way unjust.