May 4, 2007

Where Do You Stop?

The Los Angeles Times reports on the suddenly veto-happy White House, which warned Congress yesterday that its expansion of the federal hate-crimes law would not survive if brought to the Oval Office. The House passed the bill yesterday anyway, leaving it to the Senate to determine whether Congress will set up another showdown with George Bush (via Memeorandum):

A long-stalled bill that would expand the federal hate crime law to cover violent acts based on a victim's gender, sexual orientation, gender identity or disability is headed for approval in the Democratic-controlled Congress but faces a White House veto threat.

The House on Thursday approved the measure, the first major expansion of the hate crime statute since it was enacted in 1968. Senate approval is expected soon, putting the controversial bill on the president's desk for the first time since it was proposed nearly a decade ago.

Under intense pressure from conservative religious organizations to derail the bill, the White House on Thursday called it "unnecessary and constitutionally questionable," issuing the latest in a string of veto threats aimed at the congressional Democratic majority.

The measure was spurred by a number of high-profile incidents, including the 1998 killing of Matthew Shepard, a gay college student who was brutally beaten in Wyoming and left to die tied to a fence.

On one hand, this legislation makes sense. Congress already passed a law that creates a federal violation for crimes committed with specific animus based on race, national origin, religion, or color. Hatred comes in many flavors, however, and Congress did not fully catalog the spectrum when they first passed hate-crime legislation.

Now they want to add sexual orientation, and who can doubt that hatred exists on that basis? Let's add that in, and while we're at it, let's add in gender identity, because transsexuals get hated, too. In fact, let's put gender on the list, too, because some men hate women, some women hate men, and some hate their own kind. Do people actually hate others based on disability? Well, just to be safe, we'll put that on the list too.

But wait -- we haven't fully explored hate yet. Why not class hatred? Poor people hate rich people; why can't we make that a federal crime, too, as well as in reverse? How about the obese? Some people really have irrational hostility to the obese and act upon it. Why won't Congress protect the overweight? Short people? The elderly? Republicans? Democrats? Postal carriers?

Do people understand where this thinking takes us?

Motivation is not a crime; it is a component of a crime. Whether one beats a man to death because of a drug deal gone bad or an irrational prejudice, the victim is just as dead either way, and the crime is the same. It should make no difference what motivated the assault except to the extent that it proves guilt. What this legislation does is create special classes of victims that get a higher priority on justice than others. That's wrong regardless of the sympathetic nature of these victims.

No one's status in the justice system should depend on their class of identity. For too long in our history, the system exhibited preferences to certain people and barriers to others. The solution to that is not to apply that mistake to the fashionable classes of victims of the moment, but to ensure that the system works equally for everyone. Not only should Bush veto this bill, Congress should repeal the existing priority-by-identity system they've already created.

UPDATE: I expected this kind of stupidity, but I didn't expect it from Shaun Mullen:

In the Captain’s carefully proscribed orbit, Democrats are always ducking responsibility and the corner is just about to be turned in Iraq. Monotonously inaccurate, but then my glasses have clear lenses.

But the Captain crossed the line today in a post on the just-passed hate-crimes bill, which President Bush says he will veto because, in so many words, it’s okay to beat up on gays.

I hate to point out the obvious, but that's not what I wrote. It's not okay to beat up anyone. It doesn't make a beating worse if the victim happens to be gay, or obese, or a Democrat. I defy Shaun to identify where I said anything different. Talk about jumping the shark ...


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Comments (23)

Posted by unclebenjamin [TypeKey Profile Page] | May 4, 2007 8:25 AM

Absolutely correct! Passing hate crimes legislation is pandering to victim groups for perceived electoral benefit. It has no place in our lawbooks.

Posted by TGWShark [TypeKey Profile Page] | May 4, 2007 8:42 AM

Doesn't this legislation in effect say that some people are worth more than others? If a crime against certain classifications merits more punishment than a crime against other classifications, this would seem to me to be the case.

We're moving toward the Orwellian concept of "All animals are created equal, but some are more equal than others."

Posted by SwabJockey05 [TypeKey Profile Page] | May 4, 2007 8:43 AM

Great post Captain.

When talking about "Hate Crime", would it be redundant to mention "Political Hate"? My in-laws have gone on record stating that they hate Repubs....

Posted by Fritz [TypeKey Profile Page] | May 4, 2007 8:57 AM

Only politicians could forget what this country is supposed to be as set forth in the Declaration Of Independence "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness," and turn it into some people are more equal than others, in the eyes of the law, and deserve special protection.

Posted by krm [TypeKey Profile Page] | May 4, 2007 9:16 AM

This is another step down the Orwellian path to "thought crimes". I would not have a problem with taking group prejudice as a factor in aggrivating the sentence after conviction of some actual crime. But making the animus a crime itself is a mistake.

I also object to the use that will be made of the propsed law - the shutting down of free speech for those who object to particular conduct on moral/religious grounds.

Posted by Mat [TypeKey Profile Page] | May 4, 2007 9:20 AM

What this legislation does is create special classes of victims that get a higher priority on justice than others. That's wrong regardless of the sympathetic nature of these victims.
To clarify, you hold firm to this principle also when it applies to people who kill police officers? You don't feel that police should be protected by harsher penalties against people who attack them? What about children? Killing a child is no worse than killing, say, an adult male?

Some groups are at more risk than others. Some people, because of factors beyond their control, have to live with a higher risk of being attacked than others. Others voluntarily put themselves in the service of the community despite the danger that puts them in. To maintain a coherent, civil society, and just to keep crime rates low, it is helpful to provide additional protection to these people. It makes sense, right? After all, when treating cancer, you irradiate only the tumor, not the entire patient.

Where does it end? Wherever we want it to end. Just because the death penalty is introduced for murderers, and then for rapists, that doesn't automatically imply that eventually it'll be applied to people who fail to pay their parking tickets. In fact, targeting punishments only at those social ills that present a genuine threat is a recipe for less government intervention in our lives, not more. Otherwise we'd have to raise punishments across the board to the same level needed to deter the least deterrable individuals. And then you really would be getting the death penalty for failing to pay a parking ticket.

It's reasonable to argue against certain aspects of this legislation. I'm not aware of a serious wave of hate crimes against the disabled. And hey, if you want to argue that gays are asking for it and the government should mind its own business, go ahead. But arguing that an elected body should be forbidden from deciding which social ills require the strongest action is overly simplistic.

Posted by jpe [TypeKey Profile Page] | May 4, 2007 10:02 AM

I'm with Mat. Let's get rid of harsher penalties for killing police, intimidating witnesses, and engaging in terrorism.

A crime is a crime is a crime, whether it's done because of greed, hate, or Allah.

Posted by Cousin Dave [TypeKey Profile Page] | May 4, 2007 10:09 AM

Mat: We have harsher penalties for murder of police officers than for murder of others not because of who they are, but because the murder of a police officer is a threat to civil order in a way that murder of anyone else is not. An attack on a police officer is, in effect, an act of insurrection. To attack a police office is to state, in effect, "I am above the law. The civil law that applies to everyone else does not apply to me." Such a person is uniquely dangerous and deserves special punishment. It's not the identity of the victim; it's the role they play. I back that up by stating that, as far as I know, state laws covering this crime apply only to police who are on duty or otherwise performing in an official capacity when attacked. Murder of an off-duty, out-of-uniform police officer is prosecuted as just strightforward murder.

Regarding your statement, "Killing a child is no worse than killing, say, an adult male?" I'm having trouble understanding you thinking on this. On what basis should the murder of a child be punished more harshly? The only rational basis I can think of is "because the child has more life left to live". In any individual case, you can never be sure of that, but I'll put that point aside and treat the statement as true on average. So let's see where the logic leads. From that logic, it follows that murder of an elderly person should be treated lightly because, hey, they were going to die soon anyway. And the murder of a terminally ill person should be completely legal. That's what the euthanasia advocates keep telling us.

The logic of punishing a crime more harshly because the victim was more at risk of the crime holds no water at all. If it did, we would need to have laws establishing different levels of punishment for drunk drivers depending on who they hit. Huh? Well, consider that truckers, traveling salesmen, and others who drive a lot of miles per year are more at risk of being involved in a fatal accident, statistically. Don't they deserve special protection? Well, besides the fact that it's absurd on its face, there's also the little matter that the law doesn't actually prevent the drunk from causing the fatal accident -- it only punishes the drunk afterwards, and hopefully deters other drunks from doing the same. The person that the drunk hit is just as dead, whether it's a 200,000-miles-per-year driver or the little old lady who only drives to church on Sundays.

Finally, there's one other fly in the ointment. Although none of the hate crime laws have this language written into them, in practice, the application of such laws depends not only on the identity group of the victim, but on the identity group of the perp also. So in effect, the law establishes different levels of punishment for different groups. Anecdotally, I think it's safe to assume that hate crime laws are applied far more frequently for, say, white-on-black crime than for black-on-black crime, despite the fact that the latter is statistically far more common. (LaShawn Barber, for one, has done a lot of work digging these stats up.) I frankly do not see how any such law could survive a Constitutional challenge; it it does, then the Fourteenth Amendment is not worth the paper it's written on.

Posted by jpe [TypeKey Profile Page] | May 4, 2007 10:10 AM

Why won't Congress protect the ... Postal carriers?

They already have. It's a crime to attack federal employees.

Posted by burt [TypeKey Profile Page] | May 4, 2007 10:34 AM

I had to read down to Cousin Dave to find a mention of the Constitution. In general, murder as well as the hate garbage shouldn't be federal crimes to begin with. Murder is not mentioned in the Constitution as under federal perview.

Posted by jpe [TypeKey Profile Page] | May 4, 2007 11:01 AM

Regarding your statement, "Killing a child is no worse than killing, say, an adult male?" I'm having trouble understanding you thinking on this.

I think the point is the following: when a child is murdered or otherwise harmed, it's not uncommon to hear people screech that the perpetrator should get a more severe sentence (presumably because of the vulnerability of the victim; see generally: Bill O'Reilly).

In practice, then, it's not uncommon at all for a) the law to distinguish between classes of victims when the class is the motivation behind the attack (police, witnesses, federal employees, Christians); and it's not uncommon at all for the public, conservatives included, to call for harsher penalties because of the type of victim involved.

In other words, if this were the "Child Protection Act" or something, we wouldn't be hearing all this outrage about differential treatment under the law.

Posted by SouthernRoots [TypeKey Profile Page] | May 4, 2007 11:28 AM

Make the list long enough and you come full circle - someone who assaults or murders you didn't do it out of "like" or "love".

Negate every entry on the list. Does that leave classes of people that do not warrant extra "protection"? If it does, then this law is a violation of the 14th Amendment.

Realistically, would any crimes committed against a heterosexual, non-disabled, white, Christian, male of European descent be actually classified as a "hate" crime?

Posted by sam pender [TypeKey Profile Page] | May 4, 2007 11:57 AM

Hate crimes eh?

Tell ya what, when bratwurst and beer are tools for hate crime, I submit that there's not just something wrong, there's something stupid as well. Yet, that's exactly what passes for a hate crime anymore. Offer a radical Muslim a beer and a brat, and BAMMO! You're not just subject to a lawsuit, but to fines, incarceration, and all the woohoos of having a hate crime/criminal record.

Yes, there are true hate crimes, but ya know what...a really bad a crime. Shouldn't that be enough? Shouldn't people be punished for the crime not for their sentiment? Tell the Menendez brothers they can skate because they murdered out of love, but some JHS kids who toss a ham sandwich to a Somali in the cafeteria? Kick em out of school, call the cops, get the lawyers to files suit, and warm up their jail cells cause that's a hate crime.

gimme a break

hate crime

how 'bout just


Posted by Fritz [TypeKey Profile Page] | May 4, 2007 12:06 PM

Of course some things will be taken too far, but remember the motivation behind the hate crimes legislation to begin with. It wasn't that long ago that a white man couldn't be convicted of crimes against a black man, even if he was caught red-handed. And we are still in a time where a jury of bigots could buy the "He was gay - he had it coming to him" defense and allow a murderer to walk because of the jury members' own biases. Hate crime laws are arguably necessary to guarantee that equal protection under the law exists. If everyone played by the rules, I'd agree we probably wouldn't need them. But I don't think society's there yet. Just my opinion.

Posted by unclesmrgol [TypeKey Profile Page] | May 4, 2007 12:08 PM

Cousin Dave,

Very good post.

Here in LA, we recently had a hate crimes enhancement applied to some black teenagers accused of a ganged attack on two white women on Halloween. The accuseds' parents were shocked at the thought that their children might receive increased prison time as a result of racially motivated statements made during the alleged attack.

Interestingly, we have some support for the Captain's postion from a civil rights activist. Ali of Project Islamic Hope, who voiced concern over the attack and stated, “If a mob of angry whites had attacked and beaten a group of young black women, yelling racial slurs, Jesse Jackson, Maxine Waters and other black groups would have stormed the barricades and demanded justice for the victims,”, adding, “A crime is a crime and should be prosecuted according to the seriousness of it, not by someone’s race or gender.”

Posted by docjim505 [TypeKey Profile Page] | May 4, 2007 1:30 PM


I see your point about biased juries, but if we can't ultimately trust the jury / appeals system, adding layer upon layer of additional laws isn't going to solve the problem. Indeed, I'd say that according people "special status" because of their race, gender, sexual orientation, etc. actually exacerbates the problem to some degree because it plays right into bigot propoganda.

Cousin Dave,

My compliments on a superb explanation of why police officers are accorded "special status" under the law.

I would add that children are given some special status because they ARE children and considered less able than adults to defend themselves.

As for the idea of "hate", I can see myself as a juror being swayed to give a stiffer penalty, but I don't think that we should set up an ever-increasing number of "protected" classes under the law.

Posted by Jim M [TypeKey Profile Page] | May 4, 2007 1:43 PM

I think you're all missing the point. We already have "hate laws" that cover a whole bunch of people. If you think it's wrong to give preference to a particular type, then you should be asking Bush and Congress to eliminate all hate crime laws.

FYI--If a federal "hate crime" law would be struck down, it would probably because it is an area reserved to the states.

In 2000, the Supreme Court struck down a federal measure Monday that gave battered spouses and victims of rape and other sexual violence a right to sue their attackers.

The Violence Against Women Act of 1994 iwas unconstitutional, the court declared, because the federal government has no right to regulate a private act, such as rape, that is neither part of interstate commerce nor caused by state officials. In an earlier, 1993 US Supreme Court case, Wisconsin v. Mitchell, the court unanimously held that it was not a violation of the US Constitution's Fourteen and First Amendment for Mitchell's sentence for aggravated battery to be enhanced because he intentionally selected his victim on account of the victim's race.

Posted by Rana Quijotesca [TypeKey Profile Page] | May 4, 2007 3:34 PM

There is a common flaw among everyone who is speaking out so vocally against this bill... they are assuming that it won't be applied universally.

Forgive me if I'm wrong, but the language of the bill doesn't specifically mention any specific group... it says "by gender, by sexual orientation, by disability/service in the military, etc." So, if the law is applied universally, it would apply the same way if a straight person beat a gay person for no reason other than irrational hate as it would if a gay person were to beat a straight person for the same reason. Same goes for blacks and whites, men and women, etc. Your problem is instead with the biased application of the law, which isn't the law's fault, but that of law enforcement.

As for the need for hate crimes legislation, it exists for very much the same reason that we lock up the criminally insane... Something about the persecutor's demeanor or physiology gives them a disposition toward committing unreasonable acts of violence. If a person has an irrational hate of black people, then every black person on the street, regardless of character or action, is a potential target. That is a threat to civil society, and the government has the right to detain them.

If it is determined by a court that this person has this irrational hatred within him (after acting on it violently, of course), then it is the government's responsibility to make sure that that person doesn't present a further threat to society, presumably by locking them up for a longer period of time.

As per Shaun's post, he was more going after your flippancy than your actual opinion, but he was being just as flippant in dismissing your opinion than you were when dismissing this legislation.

Posted by Tully [TypeKey Profile Page] | May 4, 2007 3:40 PM

The LLEHCPA would not only have expanded the "victim" classes the law applied to, it also would have eliminated the current requirement that the victim be engaging in a federally-protected activity.

Without that "hook" the constitutionality of the law would once again be suspect. Justice is supposed to be blind, impartial. The motivations of the criminal should not constitute a second crime, a de facto "thought crime," in and of itself.

Posted by Mat [TypeKey Profile Page] | May 4, 2007 4:28 PM

Cousin Dave:

We have harsher penalties for murder of police officers than for murder of others not because of who they are, but because the murder of a police officer is a threat to civil order in a way that murder of anyone else is not.
And yet, regardless of why that rule exists, the practical upshot is that you punish attacks on police officers more harshly than those on civilians. As you say, it's a special threat to civil order, and should be treated as a special case by the courts. But so should any other special threat to civil order, which could include deep ethnic tensions. In Iraq, for example, it makes perfect sense to treat an attack on a Sunni by a Shiite more hashly than an attack on a Sunni by another Sunni, just because the consequences of the former are so much more serious. It's all about pragmatically maintaining civil order.

Note that the fact that the murder of off-duty police officers isn't punished more harshly backs up my point as much as yours: policemen are only at risk when they're on duty, deliberately putting themselves in the line of fire and wearing uniforms that mark them out as a threat. If we want to persuade people to do that for us, we need to provide special protections when they do. Out of uniform, they're not at risk, and don't need any special protection. Besides, you can't punish a criminal for killing a police officer when the criminal couldn't know they were a police officer - it's not just, and not practically useful either (see discussion of drunk driver below).

On what basis should the murder of a child be punished more harshly? The only rational basis I can think of is "because the child has more life left to live".
That is a factor in sentencing, but it's not what I was driving at at all. How many times have you heard a judge use the phrase "what makes this crime all the worse is the vulnerability of your victims"? Children are more vulnerable, and because they're more vulnerable, they are more likely to become victims. That tendency needs to be balanced out. One way of balancing it is to impose harsher penalties, so that someone who's about to commit an act of violence stops and thinks "hang on, if I get caught for this, I'm going to be in real trouble." It probably doesn't work very well, but that's the idea. The same idea is at work for police officers: it's supposed to make people stop and think before pulling the trigger.

And here: even if you don't think that is the reason, can you accept that if it was the reason, that would be a good reason? It seems sensible to me. In other words, I just don't see why the principle that all crimes should be punished equally is so important that it should prevent us pragmatically adjusting our focus to where it's needed.

If it did, we would need to have laws establishing different levels of punishment for drunk drivers depending on who they hit.
If a drunk driver was able to recognise who they were about to hit, and adjust their behaviour accordingly, then it might well make sense. But they can't, so it doesn't. The whole thing assumes a split second judgement call where you think "I really feel like committing this crime, but damn, that could be my life I'm throwing away."
So in effect, the law establishes different levels of punishment for different groups.
Yes, and this also is nothing new. People in positions of responsibility, such as doctors or priests, get punished more harshly for the same crimes than others. And this makes a lot of sense, both from a natural justice point of view and from a pragmatic keeping-society-stable point of view. The same act can have widely differing effects depending on who commits it, and post greater or lesser threats to society as a whole. Why should the justice system ignore this fact? The practical reality is that it shouldn't, and doesn't.

So no, the 14th amendment isn't worth the paper it's printed on. Sorry.

Anecdotally, I think it's safe to assume that hate crime laws are applied far more frequently for, say, white-on-black crime than for black-on-black crime, despite the fact that the latter is statistically far more common.
Yes, because society has judged the former to be a greater social ill. That is, mutual mistrust between whites and blacks in American society is a very particular problem that requires special effort to resolve. A society that has a deep division along racial lines is an unstable society, in a way that a mere high level of crime overall regardless of race isn't. So it's reasonable to use the criminal justice system to focus attention on that.

Please bear in mind that I'm not saying the law is necessarily right or wrong, or that this is a good strategy for resolving these particular social ills. What I'm saying is that you seem to think you have discovered some grand over-arching principle that renders all discussion of these issues moot. No, no such principle exists, no such principle should exist, and if you're opposed to these laws, you'll need to come up with arguments about the nitty gritty of the particular issues they're supposed to solve instead.

Posted by jpe [TypeKey Profile Page] | May 4, 2007 10:26 PM

Without that "hook" the constitutionality of the law would once again be suspect. Justice is supposed to be blind, impartial. The motivations of the criminal should not constitute a second crime, a de facto "thought crime," in and of itself.

You're on the right track, but a little off. It won't be a "thought crime," but there are obvious constitutional defects.

I oppose this law for those reasons - being a democrat, I don't like the idea of centralizing power, as we've seen the unfortunate results of that when a douche like Bush is in power.

It's interesting that most people aren't attacking the bill for the reason that it's flatly unconstitutional, but for reasons relating to their abilities to be homophobic.

This tells us two things:

1) The GOP is the party of homophobia (no surprise there)

2) The GOP has abandoned its Reagan roots in federalism. Some GOPers have objected for this reason (NRO pundits, for instance, and George Will), but the vast majority haven't raised that problem. And, this tells us something we have long suspected: long live the GW Bush revolution of Big Federal Government.

Posted by alessandrab [TypeKey Profile Page] | May 5, 2007 2:46 PM

from another discussion: inkling_revival writes: Thursday, May, 03, 2007 6:09 PM

Proponents of "hate crimes" legislation justify the special status of these crimes by saying "It affects more than just the victim of the crime; the entire class is terrorized by the crime." For this reason, they claim, it must be differentiated from the mere violent crime itself.

In saying so, they prove themselves completely ignorant of American jurisprudence.

It is the case, in American law, that EVERY crime is considered a crime SPECIFICALLY because it affects more than just the affected party. Legal actions to address damage to a specific individual are called "Torts" in American law, and are judged in civil courts. Crimes are crimes because the commission of them attacks the very fabric of society. This is why crimes are prosecuted by the state, not by the victim.

Thus, for example, auto theft is not handled by a tort action, even though it's an individual who lost the car. The act of stealing a car terrorizes all who own property of any sort; and the safety of private property is the basis of individual liberty in a free society. Therefore, auto theft is handled as a crime, not as a tort.

Thus, there is no basis in legal theory for special penalties for "hate crimes." What they claim is special about the hate crime, is actually true for the entire society; the violent act terrorizes, not just the victim or the victim's class, but the entire culture.

Posted by alessandrab [TypeKey Profile Page] | May 5, 2007 2:53 PM

Where is the epidemic of hate crimes again? 2004 statistics

There were a total of 1,367,009 violent crimes against persons in 2004, of which 774 were allegedly motivated by “hate.”

The FBI reported 16,137 murders in 2004, of which 5 were allegedly “hate” crimes; it reported 94,635 forcible rapes, of which 4 were allegedly “hate” crimes; and it reported 854,911 aggravated assaults, of which 765 were allegedly “hate” crimes.

Overall, the FBI reported that 15.6% of hate crimes were motivated by the sexual orientation of the victim.

[ 16% of 765 = 122 is the total reported enormous epidemic of alleged aggravated assault "hate crimes" regarding sexual orientation. If we take into account the evidence of several faked hate crimes, we know that the figure is smaller.]

[And if you will remember, the FBI does not consider male rape, "rape," as it defines rape only if there is vaginal intercourse. Forced sodomy, therefore, does not even appear in FBI crime statistics for rape. What does this tell us about American society and how much it wants to deal with homosexual violence? ]

650,000 gay men are annually battered in the US alone.

The disparity between 650,000 and 122 is nothing short of monumental.