Hate Crimes
by tgirschJuly 29th, 2008
There’s some good discussion over at SayUncle about whether or not it’s justifiable to classify “hate crimes” as a separate class of crimes over and above just ordinary assault/murder/vandalism/whatever. Go check it out.
Many of the libertarian types object that it’s a slippery slope from “hate crimes” to “thought crimes,” to which Xrlq responds:
One point is clear, though: all the crap about “thought crimes” and Big Brother determining intent is just that, crap. Intent is the sine qua non of criminal law. We don’t throw people in prison for inadvertently walking off with other people’s stuff, only for doing so intentionally. Nor do we charge someone for murder simply because their negligence caused someone else’s death; we have tort law for that. Should football abolish penalties for intentional grounding? Hell, as the cliché goes, even a dog can tell the difference between being stumbled over and being kicked. So of course the government must look at intent; the question is which intents to single out for worse punishment, and why.
(Personally, I think he’s just doing this to wig me out — he knows it always gives me pause when he and I agree on anything.)
UPDATE: LarryE weighs in.
Categories: Legal Issues, Libertarian Problem Solving |
Living in Canada I’ve watched hate crimes devolve into thought crimes. It historically is a slippery slope and anyone who thinks otherwise has clearly not looked into history in other countries.
I’ve never been in favor of “hate crimes” in the usual (if flawed) understanding of them, which is to make the hate itself, rather than any actions based on the hate, the crime. I have, on the other hand, always supported hate crimes as an aggravating factor - for example, assault someone, it’s a crime. Assault someone because of their race/religion/sexuality/whatever-else-is-included, it results in a stiffer sentence upon conviction.
The trickier part comes in the area of “promoting hatred,” of creating an intimidating atmosphere such that certain people or groups are hindered in their ability to participate in the community. What if it becomes clear that the intent is to use calumny and condemnation to drive “them” out of the community or at least underground by making it too uncomfortable, too threatening, for “them” to do otherwise? After all, we regard economic coercion, e.g., a Mafia protection racket, as illegal even if there is no actual damage, merely threats. Why should emotional coercion based on prejudice be different?
Stepping back and getting even trickier, though, what if you can’t say the intent is to drive “them” out but it is clear that that is the effect? Intent matters in criminal law, but not always in civil law - of which civil rights laws are part. Where is the line to be drawn?
Which brings up the last point I wanted to cover here: What if that calumny and condemnation comes not from Joe Blow or Jane Doe but from a person or persons in a position of authority or influence? Can, to use an example connected to some recent discussions here, a minister who repeatedly castigates homosexuals as “abominations” and worse truly and reasonably claim to have zero responsibility if one of their parishioners acts on that teaching? Is there a point at which “I’m only expressing my opinion/belief” is no longer a justification but becomes like the classic shouting “Fire!” in a crowded theater? If so, where?
Part of the difficulty - or perhaps just my difficulty - here is the adage “hard cases make bad law,” which, though often misunderstood, means that a close case, where the decision is a struggle, is a bad basis for establishing a rigid standard. So while I’m clear on the principle that the mere expression of hatred must be, even if unhappily, regarded as protected speech, I’m also clear on the principle that the active promotion of hatred need not be, especially if it has some discernible effect. What I’m not at all clear on is where the line between them is drawn or how to draw it.
Excellent comment, thanks LarryE.
Let me try to chime in here because a lot of what Larry says in his post is pretty relevant to my opinion, in an overarching sense. Simple and plain, defining, and even more specifically, labeling things gets us in trouble. Taking into consideration, the indescribable complexities of the human mind, and the innumerable relationships between ideas, images, perception, and action, the idea of what a “hate crime” is gets specious really quickly.
Take something like the Amadu Diallo shooting and run it through the sort of contextual analysis that Gladwell does in Blink. Is it reasonable to think that had the victim been a white businessman in outside a swank restaurant in a chic neighborhood, he wouldn’t be a victim? Now, that doesn’t mean we must regard the shooting as a hate crime, but it does mean race, and race-related settings affect actions.
White job applicants with criminal records get hired at a higher rate than equally qualified black applicants with clean records – on that basis one could conclude the non-hiring of every single qualified black job applicant is discrimination (a hate crime in spirit).
The more zealous we are to define something, the more we open up srutiny on the fringes, which in turn undermines the original distinction and shifts focus from the majority of, ahem, black and white cases that fit squarely in one box or the other.
The tail begins to wag the dog, as we begin looking at actions in terms of whether they fit or don’t fit a label as opposed to taking a holistic view of the action itself and the circumstances surrounding it. You narrow your options of interpretations, and force yourself to pick a side and concomitantly, though perhaps unwllingly, take a stronger, more definitive stand than you might want to because you’ve drawn a paradigm defined by dichotomy, x vs. not x. Then you’re forced to defend that stand through the prism of the label. Blah, blah, blah, until you’re involved in a bloody war being carried out my soldiers who can’t even restate the original beef.
How you determine intent? How do you determine who is a protected group? How overt does the hate element have to be? How do you quantify intimidation? How do you establish damages, especially when they are in the realm of creating a certain kind of environment as opposed to more clearly defined material damages?
That stream of questions can go on and on, but they only really become inviting to ask upon establishing a label – then it can be dissected. The labels invites the drawing of difficult, and perhaps arbitrary or even political agenda-driven lines.
(Those on the Right get this much better than those on the Left – don’t name shit, and when you do, do so platitudinally enough that you can basically classify things selectively and on a case by case basis.)
Ted -
Thanks!
Digg -
I think you’re straining too hard to find nuances where there need be none. Determining intent, as many others have noted, is a routine feature of criminal law and doing so can affect punishment - just consider the obvious case of (deliberate) murder versus (accidental) manslaughter.
You could, in fact, conceive of that as an example of my reference to intent - in my discussion, “hate” - being an aggravating factor at sentencing. Admittedly, the comparison is not exact since in the case of murder-manslaughter the issue of intent is raised in the charge, not in a sentencing phase, but I still think it relevant enough to point out.
Moreover, contrary to what seems to be a common notion, determining “intent” is not a matter of mind-reading but of what can actually be determined by some sort of evidence.
Which is why it is extremely unlikely that something like the Amadu Diallo case would ever be prosecuted as a hate crime under any criminal statute: While I have absolutely no doubt that racism played a heavy, indeed a controlling, role in the police actions, in their being irrationally threatened by Diallo because of the color of his skin, at the same time I strongly doubt that a case could be made that any of the cops intended to kill Diallo because of his skin color. The difference may seem subtle but it’s clear: At least for such legal purposes, “intent” by its nature involves conscious intent.
The definition of hate is very subjective. I can vouch for that. If you oppose anything a liberal is for, then you hate. There is no room for differing opinions.
That’s funny, coming from you. You’re the one accusing everyone else of being full of hate.
The difference may seem subtle but it’s clear.
Not to Diallo!
But that’s kind of my point. The “for legal purposes” caveat works wonders to clear things up for the sake of discussion. But, to me it’s kinda like reducing the case to its lowest common denominator.
The deeper you delve, the less clear the distinction becomes.
Sentencing guidelines are the least of my concerns, at that point the behavior and attitude is likely irreversible.
Not to Diallo!
The effect on him was the same, but that wasn’t the question. The question you raised was about a prosecution as a hate crime.
This, by the way, had nothing to do with the notion of a civil suit for wrongful death because, as I noted, intent is not always a factor in civil law. And, as I expect you know, his family won a $3 million settlement from NYC.
“That’s funny, coming from you. You’re the one accusing everyone else of being full of hate.”
And you are full of hate. However, I’m not trying to make your hatred into crimes.
For once, you’ve gotten something right, Fred.
It’s not Ted’s “hate” you’re trying to make a crime, it’s your own hate of others’ lives that you want to criminalize.
(Yeah, yeah, you don’t hate gays. And I’m the mother-fucking Pope.)
Pope, you really need to get a grip.
Larry,
I’m just saying that when we begin to distill motives for are actions, especially as they relate to perceptions and prejudices, it gets murky really quickly once you start thinking beyond the surface level. That makes me uncomfortable with defining acts as explicitly X or not X. Also, some groups get formally recognized as targets of hate crimes, while others don’t.
In sane states, that’s not an issue; most statutes require that the primary motivation for the relevant crime be motivated by racial, sexual, sexual orientation, disability (et all, what is covered varies by states). It’s rather unlikely to change in them.
Even in the less sane states, like California, you’ve still got a lot of distance from that particular spot on the slippery slope. California considers even partial motivations, but it doesn’t notice ones that there isn’t a clear pattern of aware bias.
Given that California’s already pretty far down the other slippery slopes, especially toward speech-centric crimes, this tends to put things in perspective. California’s hate crime statutes have been cited in courts of appeal to justify prohibitions of speech in semi-public fora and schools.
Digg -
And I guess my answer, again, and I’ll leave it at this, is that making such determinations is something we do all the time. In fact, it seems to me that if we want to avoid “defining acts as explicitly X or not X,” we undermine most civil rights laws, whose function depends on the ability to decide that a given practice is or is not discriminatory. It’s true that in some cases those calls are hard to make but if we refuse for that reason to make them at all, we abandon the hope of advancing equal justice through law.
As for “some groups get formally recognized as targets of hate crimes, while others don’t,” that depends on what you mean by “groups.” Laws vary but US federal law covers hate crimes committed on the basis of race, color, religion, or national origin. If by “some groups” you mean that, for example, gays are not protected by federal law, you’re right - although attempts are being made to remedy that by adding gender, sexual orientation, gender-identity, and disability to the law’s coverage. But that is a shortcoming of the law, not the principle.
But if you mean, as many people seem to think, that (again for example) blacks are “recognized as targets” but whites aren’t, you’re quite wrong. To pursue the same example, the FBI’s statistics on hate crimes for 2006, gathered as required by law, show 890 “anti-white” incidents.
A final note is that at my own place I posted a somewhat expanded version of my initial comments here (with a link back to T’s post). If anyone cares to look at that, this is the link.
And, again, I’d say that “civil rights law” has the ability to precipitate confusion because it gets into the more specific, and politically-charged labeling of simple, universally-revered principles like equality and justice. It’s a distinction of sameness vs. difference, unity vs. fragmentation. Frame civil rights as equality and there is a notion of the collective - we should all be equal. Frame civil rights as its own entity and now there is a notion of different groups fighting for recognition of different things, and some groups getting further than others, etc.
Again, in terms of enforcement, I have no problem with a kid getting more time for spraypainting a swastika, than catching freaking “Cope(2)” on a rooftop (and not just cuz I’m a connoisseur of graff culture). But my comments on most of the topics here, if you’ve noticed, center on how we think about things, how we group them, and why we make decisions. Do many of our attempts to take a steps forward in terms of practically seeking justice also result in further codifying unhealthy ideas through metalinguistics?
I’ll be the first to admit that question may sound like quackery, and many might claim it comparatively unworthy of discussion. But what can I say, that’s the shit that happens to fascinate me…
Tgirsch -
Thanks for the shout-out at SayUncle; I got a bunch of hits as a result. Interesting, however, that none of them felt moved to comment even as the debate continued under your post there. Such is the ways of the intertubes.
Trust me, you don’t want their comments. Based on the comments I’ve been getting at Say Uncle, the commenters are almost exclusively of the variety that can “kiss [your] fat ass.”