Strengthening Constitutional Self-Government

No Left Turns

The Problem with "Hate Crime" Laws

Richard Cohen tells the story of Nicolas Morse, who is being prosecuted in New York City for a hate crime because he used racial epithets while he participated in a group attack on a black man. That it was a crime there is no doubt--but what makes it a "hate crime"? Morse himself, as Cohen points out, is half Filipino, and his sister is half black; it’s hard to believe that he’s a bigot. Yet this is inevitably the road that we find ourselves traveling once we start punishing people for their thoughts, rather than their actions.

Incidentally, it’s difficult to argue in this case that the elimination of hate crime laws serves the interest of white males. Cohen writes:

As if to show how absurd the hate crime law can be, Westchester District Attorney Jeanine Pirro last month charged a deranged and homeless black man with a hate crime for killing a white woman only on account of her race.

Discussions - 23 Comments

I certainly don’t support hate crime laws, but why is it especially absurd to charge a black man with a hate crime for killing a white woman only on account of her race? If we’re going to have such silly laws, at least we should be applying them in a non-racially-discriminatory fashion.

Yes, the problem with adjudicating crime based on motive is...proving motive. Hate crimes are especially difficult in this regard, and for that reason we shouldn’t have them. The likelihood that they will be used in a discriminatory manner is just too great.

Dain:

I do not think your objection stands up very well given the current state of criminal law. Many states follow the Model Penal Code (MPC) which requires that every crime have a mens rea (state of mind the person committing the crime). The Supreme Court has ruled that every crime has to have a mens rea except for mostly minor crimes (traffic laws and the like, though oddly environmental crimes require no mens rea). The MPC mens reas are purposefully, knowingly, recklessly, and negligently. A typical crime would be "whoever purposefully or knowingly kills another has committed murder." It seems that if the state can require juries to determine the mental state of the person when they committed the crime, then the state can make juries determine why the person murdered. Mens reas often determine what sort of crime the person has commited. If I recklessly kill another I have commited manslaughter, not murder.

I think the question is: Is it acceptable to punish people because they act solely on the basis of race? I think it is acceptable, and it has been going on since the 1960s (Civil Rights Act of 1964).

But to distinguish between simple recklessness and criminal intent is one thing--to ascertain why one chose to engage in criminal behavior is quite another. The great weakness of the 1964 act is that in most cases it is virtually impossible to prove that race is a motive. This is why certain zealous Justice Department investigators began using lack of proportional representation as evidence of willful discrimination--and, of course, this is exactly how we ended up on the slippery slope toward racial quotas.

Yes, Steve, back to your law books! There’s a world of difference in determining if something is premeditated, and often motive can be determined by objective evidence (e.g., insurance policies, revenge), but "hate crimes" often occur during the commission of other crimes like robbery, rape, and murder. The psychological state of the perp might be impossible to determine.

Dain:

I think you missed my argument. Almost ALL criminal law requires the jury to determine the psychological state of the accussed while he commited the crime. It probably is impossible to determine, but if it is legitimate for the state to write criminal law in such a way then your objection about the difficultly of fairly deciding about a "pyschological" crime (such as a hate crime) loses most of its force ( for example, you could argue we should keep the bad criminal law system due to custom, etc. but should not extend it).

You seem to think that people are only charged with one crime, but that is not the case. If I got into a fight with someone I might be charged with battery, assault with a deadly weapon, disturbing the public peace, etc. Prosecutors pile on crimes to maximize jail time or fines for certain offenders. It seems reasonable to me that a person is MORE dangerous and MORE guilty if he kills out of racial hatred.

Before we can further either argument we need to determine why people ought to be punished. I think a valid reason for punishment is deterrence. People should be punished to deter bad behavior, and in order to deter behavior it must publically be known that committing such behavior results in punishment. We want to deter murder, so we punish murder. If we want to deter harming people because of their race, then we ought to punish harming people because of their race. Do you disagree with this principle? If so, why? If not, then I assume you disagree on prudential grounds (too hard to determine motive, etc.), but I have already met that argument, and you have not convinced me that juries are incapable of fairly determining the psychological state of the accused. I think your other argument is that prosecutors might not fairly enforce the law, but since prosecutors have discretion to enforce ANY law, that argument seems to have little force.

If we want to deter harming people because of their race, then we ought to punish harming people because of their race. Do you disagree with this principle? If so, why?

Bear with me here, because I have no formal legal training. I do disagree with the principle, because we the point is to deter people from harming one another for any reason. I think that to build into the law the notion that there are some reasons for murdering another person that are more or less objectionable than others does violence to that larger principle. It seems to me that it might be acceptable for a judge to take this kind of thing into consideration when sentencing, but it ought not be written into the law.

John:

I assume you mean kill in your post, and not murder. The best counterexample I can offer is the difference between murder and manslaughter. Both cases involve one person killing another (in a rough sense the same harm has occured). I forget the exact definition, but murder happens when someone purposefully or knowingly (or through extreme recklessness) kills another according to some plan. Example: Person A wants to kill B. A decides he will kill B next week. A decides in order to kill B he will hide behind a fence, pop out, and stab B with a knife. A does all of these things and is convicted of murder.

Again, I forget the exact definition of manslaughter, but it happens when a person recklesslessly (in addition, maybe negligently) kills another, or purposefully or knowingly kills another in the heat of passion. Example: Person A walks into his house and see his wife engaged in sexual intercourse with B. In a fit of rage, A picks up a lamp, throws it at B’s head, and kills him. A will be convicted of manslaughter.

The punishment for murder is 20-life, while the punishment for manslaughter is no more than 15 years (maybe 10). The punishments differ because people feel that a murderer is more guilty than someone who kills in a rage, or accidently (like shooting a gun in the air). Both crimes involve the same objective harm (someone is dead) but the person who committed the crime is punished differently.

Since criminal law already recognizes different degrees of guilt when it comes to killing, I see nothing objectionable about assigning a different amount of guilt to racial killing than a nonracial killing. The law already punishes people who kill police officers more harshly than people who kill nonpolice officers. It is merely a question of what sort of people we wish to put in jail. I would argue that a person who kills because of race deserves to be in jail longer, than a person who kills in order to rob in order to pay for bread to feed his family (to use an extreme example).

I do not deny that motivation plays a role in criminal convictions...of course! "Hate crime" is far too politicized for proper use in the courtroom...that’s my major point. It’s also very slippery...does the use of a racial slur during a robbery constitute a "hate crime," or was it a tool of intimidation and utterly unrelated to the purpose of the crime? Sure, they are a few clear instances of "hate crime," but creating a separate law risks having those motivations leak into otherwise mundane criminal proceedings. You can only fry someone for murder once, and making it worse to kill for racial reasons than for, say, sexual reasons or financial reasons, really doesn’t change the punishment (or shouldn’t) but IT DOES lend a moral imperative to race. It becomes a political tool, in short. That’s what many of us object to.

Dain:

I think the point is that it is wrong, and should therefore be a crime and punished, to use someone’s race as a means of intimidation, or to kill someone because of race, etc. Like I said before, people can be charged with more than one crime. Also, because many murderers are not executed, charging them with a "hate crime" is a convenient way of getting them off the streets for longer. Furthermore, some states require that the murder be particularlly objectionable before capital punishment can be given. The state could use murdering due to race as such a circumstance, and then execute the person. As far as principle goes, I do not see why it is objectionable; I might agree with you on prudential grounds, but would like to see how prosecutors use such statutes before I did.

This is the best example of my idea I can give you. A murder deserves 5 punishment points. Commiting a crime because of race deseres 2 punishment points. Anything less than 7 is unjust. If we only punish murder than this is unjust. Do you object to this example?

I object to the example. I fail to see why it is more heinous to kill someone for a malicious reason (race) than for a wanton one (just for the hell of it). Don’t both deserve a 7? I doubt you would draw such distinctions if a family member of yours were killed at random.

Bob:

I think for purposes of punishment and forgiveness it is easier to understand and forgive someone who committed a crime for a somewhat rational reason. We can somewhat empathize with someone who kills because they needed money for an addiction, etc.; but it is not rational to kill because of race, and it is certainly more painful to the family members when their loved one was killed because of race, then when there was an understandable "reason". I think a person who commits a crime due to irrational reasons is more deserving of punishment than someone we can sympathize with, and I think this is natural. It is called mercy, etc.

I’ve enjoyed watching this argument, and staying out of it. I’ll still stay out of it, but Dain, when you say,:

"IT DOES lend a moral imperative to race. It becomes a political tool, in short. That’s what many of us object to."

... what do you mean, exactly?

Well, Fung, then stay out of it.

As for what I meant, to use post-modern lingo...hate-crime legislation privileges race/gender/sexual orientation over other types of motivations. I see no reason to make crimes against the Left’s mascots "special" crimes with "special" punishments, particularly when so many Leftists claim that you can’t be a "racist" if you are non-white and you can’t be a "sexist" if you are female (essentially reserving perjorative terms for groups viewed as powerful while exempting their "victims"). Clear enough, Fung? We on the Right don’t think these laws will be applied fairly (and indeed, if they were it would be mostly individuals from Leftist mascot groups that would be convicted of them). Should we have another argument about the far-greater incidence of black-on-white violence?

Steve S, re comment 3


"It seems that if the state can require juries to determine the mental state of the person when they committed the crime, then the state can make juries determine why the person murdered."


I believe it is quite a stretch to expect a jury of regular citizens to make a determination of "why" like you stated. The mental state can be more objectively determined, especially when expert/doctor’s opinions and the physical evidence (very mutilated body, etc) can be used to help make that determination. Unless the aggressor provides a reason, basically a confession, then the "why" would be much harder to determine.


Looking at your example of murder vs manslaughter in comment #8 (which was a helpful example, btw) would we then need to include adulterers (sp) in the protected class? It could be argued that that killing took place because of hatred directed toward "B".


How about a white man who hates black men, and drives over a small group of men with his car. We’ll say 3 black men. He admits it was purely racially motivated. Unknown to him, there was one of their white friends in the same crowd, who was also killed, making a total of 4 victims. Would he be charged with 4 hate motivated killings or only 3?

This has been an interesting discussion, but I think Steve is oversimplifying things.

Determining a criminal’s state of mind is much simpler than determining their motivation for the crime. The manner in which a crime is committed often makes the state of mind fairly easy to determine (i.e. a well-planned murder cannot really be considered a crime of passion, a murder in which the victim is stabbed many more times than necessary to simply kill shows a degree of rage, etc.). In short, physical evidence is often very indicative of a criminal’s state of mind. Physical evidence is rarely indicative of motivation.

If a murderer yells a racial epithet in the course of the murder, does this automatically make it a hate crime? Perhaps, but then it may just mean that the murderer is racially insensitive, yet murdered the victim because of a dispute over money.

Another factor is the extent to which we expect the "hate crimes" laws to be deterrents. If the laws are truly supposed to be deterrents, can anyone here really argue that they work in that regard? Is it likely that someone who hates another race so much that they would kill a member of that race really likely to stop themselves for the extra jail time that they may get for the motivation of their crime? I think it is unlikely.

If the point is simply to punish the criminal, then we truly are punishing people for their thoughts, something that I would think would garner some angst from the civil liberties crowd. Unlike the differences in crime based on an offender’s state of mind, hate crime laws create longer sentences based solely on the thoughts of that offender.

Furthermore, I believe that the vast majority of crimes prosecuted under hate crimes legislation involve no actual physical harm but fall under the category of "racial intimidation" which only requires that a person feel threatened by the statements of another person.

Steve seems to be saying that the law already requires that judges and juries determine the motivation for crimes and, to an extent, this is true. Even those of us who aren’t lawyers know that prosecutors always want to uncover the motive behind the crime. But I cannot think of another variety of motive that actually has an effect on the sentencing of the guilty party. Sure, some juries may be moved to recommend lower sentences if they feel that the motive for a crime was something that seems more understandable (i.e. Steve’s stealing bread to feed a starving family example), but none of these instances open up a whole new offense with its own separate punishment.

This is a bit disjointed. Hopefully some of it makes sense.

Luke:

I think we can both agree that all crimes involve some kind and degree of hate and selfishness on the part of the criminal. In the manslaughter example it is true that the killer hates the adulterer. What society does through criminal laws is try to figure out what amount of punishment is just and fitting for each particular manifestation of hatred and selfishness. Society thinks it is somewhat understandable for a husband to hate the adulterer so much that he kills him in a fit of rage, and for this reason his punishment is less than someone who hates another enough to kill him because of his gold watch(which is less understandable). Hate crime laws simply state that acting because of certain forms of hatred is not acceptable and should be punished.

Dominick:

I do not think your lack of deterrence argument holds up. It is obvious that ALL criminal laws fail to deter all people, yet I assume you do not want to repeal them all because of this failure. Criminal laws are designed to deter marginal criminals, people who might comit a crime. It is true that such a percentage of people might be small, but because we live in such a big country the absolute numbers would probably be meaningful. I believe 1% of 300,000,000 is 3,000,000. I doubt if they would stop that many, so let’s say they would stop .1%; that is 300,000 which I think is pretty significant. Furthermore, you seem to only consider hate crimes in conjunction with murder. It is true that a reasonable penalty for a hate crime would be rather small compared to the penalty for murder, but hate crimes could be conjoined with assaults, vandalism, etc. and at that point make a real difference.

Next, I do not think hate crimes punish because of thoughts. I can think about killing Bob as much as I want and not get into trouble; I am only punished when I actually physically kill him. I can also hate Bob because of his race as much as I want and not be punished; I am only punished when I physically hurt Bob because of his race. In both instances it took a physical action before I was punished. The area of criminal law that is murky is "attempts," such as attempted murder, attempted burglary, etc. Those sorts of laws do come close to punishing only for thoughts. I would certainly not support hate crime laws that punished people for speech, or thoughts, etc, rather some sort of physical violence must be involved.

Finally, in response to your claim that it is easy to determine the mental state of the acussed I offer an example. I got to see a criminal trial last year at OSU. The defendant was accused of knowingly possessing a controlled substance (crack-cocaine). In order to be convicted the State had to prove that he knew he possessed the substance, if someone does not know they possess it then no crime has been committed. He was pulled over while driving, the police searched his truck, and found crack in his coat pocket. His coat was lying in the back seat. His defense was that his friend must have put it in his coat because if he had known that he had it, he would have smoked it. He claimed his coat had been in his truck for days. A jury had to determine if he knew about the crack. I thought it was a hard case. The jury returned a guilty verdict in thirty minutes or an hour, or something like that. Deciding even with a significant lack of information happens all the time in the criminal justice system; I do not see how any more uncertainty will cause confusion.

I support the death penalty and I support life in prison for murders! You should get such a punishment if you commit such an unspeakable act. I don’t care if your crime was or was not racially motived; personally it doesn’t matter to me because if you kill someone because of their race or because of some other motive you should be punished with life in prison or the death penalty. In this respect I don’t agree with hate crime laws because they should be useless if we actually prosecute people in the manner they should be. If their really is a need to stop this kind of racial "hate" behavior I think we should look deeper in our own judicial system and ask the question why it is needed. If we prosecute effectively and give out the maximum punishment under the law then the laws should be useless. Right?

However, I do not want to seem like there is no problem with racially based crimes. I just think that there might be better and more effective means to resolve this than by brining out the assumption that people are different.

Steve, thanks for this information. I can’t say that I’m yet convinced, but this has certainly given me a new perspective on the issue.

First, in your response to Luke I believe you are mischaracterizing the distinction between manslaughter and murder. In your example, you seem to suggest that the husband who kills his wife’s lover is charged with manslaughter because society may have sympathy for his motive. Motive is not what determines whether an act is murder or manslaughter. Intent is the deciding factor. If, for instance, the husband enters the room, sees the adulterous act, and punches the man in the face in anger which somehow manages to be a lethal blow, it would indeed be manslaughter because the husband only intended to hurt the guy a little. He had no intent to kill. He was just angry. If, however, he enters the room, grabs a knife from a dresser drawer and plunges it into the man’s chest, we likely have a murder charge because the husband appears to have indeed intended to kill the man. His motive, which may be somewhat understandable to many of us, is irrelevant. It only matters that he meant to kill the man. The "understandability" of a crime may be a factor in the sentence recommended by a jury or handed down by a judge, but it doesn’t really affect the charging of the crime. Thus, your attempt to show that a person’s motive in a crime can be considered when determining the type of crime they are charged with is, I believe, inaccurate.

It is obvious that ALL criminal laws fail to deter all people, yet I assume you do not want to repeal them all because of this failure. Criminal laws are designed to deter marginal criminals, people who might comit a crime.

I never said that laws should be expected to deter all crimes for them to be useful. I believe that hate crime laws are actually not going to deter anyone. I sincerely doubt that anyone who feels racial hatred toward someone else is going to be deterred by the extra punishment that may be doled out to them for whatever crime they are considering. Do you think someone who is considering assaulting someone will stop and think, "I would, but it would be a hate crime, so I guess I won’t." I believe that if they are going to be deterred, it will be because of the punishment that they will likely face for the main crime, which is the assault. The laws against assault, murder, rape, etc are the likely deterrents, not the additional hate crime charge that may go with it.

Next, I do not think hate crimes punish because of thoughts. I can think about killing Bob as much as I want and not get into trouble; I am only punished when I actually physically kill him.

True, hate crimes do not punish thought alone, but when the charge is filed there will be a charge for the crime (i.e. assault, rape, etc) and then an additional charge for the thought behind the crime. It is most definitely a thought that is being punished in the latter charge. If the law is established so that it is only one charge and there can be a hate crime assault charge and a non-hate crime assault charge, still it is clear that the only difference between the two is that one is punishing a criminal act and the other is punishing a criminal act *and* the thought behind the act. In either case, punishment is being given for the thought.

You did not address my point about the "racial intimidation" aspect of hate crime laws either, which comes much closer to punishing thought alone.

Dominick:

I did not address the racial intimidation portion of your argument because I stated I did not favor laws that punished speech, or merely the thoughts of another. We agree on that. I do think laws that provide more punishment for people who physically act because of racial reasons are legitimate and appropriate. I think we disagree on that.

I think you are somewhat confused about the distinction between murder and manslaughter. I do not have the model penal code before me, nor do I have the time to look through the Ohio Code, but a rough distinction between murder and manslaughter is mitigating circumstances, called "adequate provocation" in the law. A person convicted of manslaughter can fully INTEND (under MPC language purposefully or knowingly) to kill another; in this respect murder and manslaughter are the same. The difference between the two lies in adequate provocation, which is something that makes the manslaughterer lose control over his actions. Also, the manslaughterer cannot have time to "cool off," manslaughter is a crime of passion, though is obviously involves some planning, assuming the defendant did not react automatically in response to stimuli. A frequent example is the cheating wife, another example might be killing the person who had just ran over your child, etc. Words are NEVER adequate provocation, including insults, racial slurs, etc. Manslaughter is a crime that allows for society to show mercy for the weakness of others, but it need have no difference of intent. Your example would be reckless manslaughter. The guy took a risk that he knew might lead to the death of another. (punching someone really hard). Per definition of the crime, it is IMPOSSIBLE to have a reckless murder, it needs to be gross recklessness (like shooting a gun in a crowd). If you would like to read the Ohio Code I can give you the citations, I can look it up after 5:30 tonight.

You also seem to be confused about how criminal definitions work. There are "standard" crimes, and then there are circumstances that "aggravate" the crime. Here is an example: robbery is the use or threat of use of force against another in order to steal. Let’s say robbers get 5 years in prison. Aggravated robbery is the use or threat of use of certain kinds of force (a gun) against another in order to steal. Lawmakers have determined that people who use guns to steal are more dangerous than people who push others to steal and therefore deserve more time in prison, say 7 years. This seems to make sense. I see no reason why adding race to "aggravating" factors is wrong.

I will ask you the same question I asked Dain, are you opposed to punishing people who harm others due to race in principle, or on prudential grounds?

An essay from a few years ago some of you may like to read:

by Lance Morrow

Certainly I am no lawyer, so I bow to your knowledge on the subject. Every definition I could find of manslaughter said that it was killing without intent. Of course, I realize that the legal community has no obligation to follow dictionary definitions of things and I have no reason to doubt your knowledge of the code.

As for circumstances that aggravate the crime, I completely understand that. No confusion there. However, to my knowledge, hate crime laws are the only situation in which the thought of a criminal can aggravate his crime. Handguns aggravate crimes because they seem to demonstrate a willingness on the part of the criminal to use deadly force or at least to bring with them to the crime the ability to use deadly force. It is understandable then that this makes the crime a bit worse as it brings a new element of violence into play. Using a racial slur during the commission of a robbery adds no violence to the situation. It merely demonstrates that the offender has beliefs that society rightly deems offensive. But they are still just thoughts. And those thoughts are being punished by hate crime laws.

As for your final question, I oppose hate crime laws on both grounds I suppose. While I do not support nor am I trying to defend those who hold racist views, I believe it is important that thoughts not be punished in our society. I still see no way that hate crime laws can be considered anything but punishment for evil thoughts. I also have a problem with them because I think it is extremely difficult to determine exactly why a person committed a crime. Maybe the exact wording of some hate crime laws is sufficient that some of my concerns are ill-founded, but I have been given the impression that most of the time, all someone needs to do is use a racial slur in the commission of a crime and the crime can be upgraded to a hate crime. This seems rather ludicrous to me as a few words out of the mouth of a criminal may not be a complete indicator of the reason behind the commission of the crime. I fear that the main reason for the passing of these laws is to appeal to special interest groups and not because they are going to make a significant difference in our society’s quest to eliminate racist beliefs.

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