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Thursday, April 21, 2011

Beldar on "hate crimes"

Prof. Ann Althouse has a post up today entitled Webcam spying on college roommate charged as a hate crime. I left the following comment:

I can't think of anything as detrimental to the cause of civil liberties as the Left's passion for "hate crimes."

Those who promote this notion ought to consider the lines from [Robert Bolt's play, and the subsequent movie,] "A Man for All Seasons":

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I'd cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

In response, another commenter said, quite reasonably: "I'm really unable to decide which is the devil in all this. Is it the 'hater' or the laws themselves? Especially since many of our laws are starting to be written by haters of one kind to control haters of another."

My reply (slightly edited here for clarity, and not block-quoted because it's fairly long):


@ bagoh20: Your comment confirms that my allusion to Thomas More was unclear.

I conceive of "hate-crime" laws, in general, as an attempt to misuse the existing Rule of Law by loosening its standards, by inserting into the law a wolf in sheeps' clothing.

The secular law of More's day guaranteed individual liberty both against abuse by ecclesiastical law and against mob justice. It was deliberately structured, measured, to be resistant to momentary passions from any source, and it remains so today. (Only "resistant" because it is administered by fallible humans; the law can't be made impervious to passions.)

Consider, for instance, the murder of James Byrd, Jr., a racially motivated crime that occurred, and was prosecuted, in Texas (where I live). George W. Bush's political opponents regularly tried to beat him about the head and shoulders under the theory that because he'd been Texas' governor, it was his fault that Texas had no hate-crimes enhancement to apply to this prosecution. His response was always that the existing Texas laws had functioned absolutely appropriately in the case: All three perpetrators were convicted of capital murder, and the two of those whom the evidence proved most responsible were sentenced to death. Evidence of their racism and associations with white supremist organizations was introduced — not to prove that they are hateful people who are therefore deserving of greater punishment, but rather to establish their motive for killing Byrd. The death-row convicts' appeals are still playing out, but given the evidence and the seriousness Texas displays in carrying out death sentences, those two are likely to be executed. So how much more could Texas have punished them? What's worse than a death sentence?

That people could seriously argue that these sentences needed enhancement illustrates the core truth about hate-crime statutes: They're written to enable the process by which popular passion can affect the criminal justice system. And the cruel irony is that the passion exhibited by those who wanted to further punish the murderers of James Byrd, Jr. is functionally indistinguishable from the passion of racist mobs in past decades who've committed lynchings.

Our "regular" laws — without hate-crime enhancers — are the trees. Start cutting them down — by passing special laws consisting of short-cuts to empower sentiment and passion in sentencing, at the expense of evidence and due process — and you will soon find the kingdom laid too flat for anyone to stand upright against the winds of evil (or even mere chaos).

To change metaphors: The Rule of Law, with the legal process it prescribes as due to each defendant, is the foundation of our civilization and, especially, this America. Hate-crime laws undermine the foundations of the Rule of Law for everyone. History teaches that such foundations are rare and hard to build, and that once sufficiently undermined, they collapse and are hard to re-build.

I hope that makes my allusion more clear.

Posted by Beldar at 05:09 PM in History, Law (2011), Politics (2011) | Permalink


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(1) Beldar made the following comment | Apr 21, 2011 5:35:48 PM | Permalink

In anticipation of one objection: By "functionally equivalent," I do not mean "morally equivalent." My choice of qualifiers was deliberate.

(2) Andrew made the following comment | Apr 21, 2011 5:36:00 PM | Permalink

Bill -

Sorry Bill, I have to agree with you on this one. I know it's more fun to fight, but when you're right, you're right (and you, my friend, are right).


(3) Gregory Koster made the following comment | Apr 22, 2011 2:27:48 AM | Permalink

Dear Mr. Dyer: That "functionally equivalent" fig leaf does provide cover as fig leaves do. I will merely point out that federal civil rights prosecutions are all too often the functional equivalent of double jeopardy. State juries refused to convict, so let's give the feds a crack at getting the job done. Note that the real problem, the defiance of justice by the state legal apparatus is ignored, states being a much bigger opponent even while individual constitutional rights are trampled on, being much less likely to do damage in fighting back. It's true, the legal academy would condescendingly explain to me that civil rights prosecutions aren't double jeopardy, because, well because we say so. How often are civil rights violations tried when states do convict?

Does this mean I approve of "hate crimes laws?" Not at all; they are, as you say, products of passion, using justice as a fig leaf for good old fashioned revenge. What I object to is the implication that this passion is the product of the citizenry. No. Hate crime laws are a product of the modern legal academy. Sonia Sotomayor is a fine product of this academy. Is she unswayed by passions? To ask such a ridiculous question is to answer it. Neither you, nor I, middle aged white males, could expect anything more than disdain from SS.

The problem isn't solely in the judicial branch. The One, having lost the CITIZENS UNITED decision, is not content with spitting on the Court during the State of the Union; now he's trying to establish "reform" by executive order. This is the same style that produced hate crime laws, with even less of a fig leaf. Who can doubt that when the executive order is published, companies will have the boot on their necks----but not unions or universities. The One, like SS, is a product of the modern legal academy. He even participated in it, characteristically overinflating his reputation as a "professor," an acceptable title if you count snake oil salesmen as professors.

As The One might put it: "Let's spread the blame around." He is very good at doing so, better than damn near anything else he can do.

Sincerely yours,
Gregory Koster

(4) stan made the following comment | Apr 22, 2011 10:48:02 AM | Permalink

The left has a long and ugly history of willingness to cut down the trees to go after their target of the moment. They've never understood the law of unintended consequences.

Bork, the filibuster, votes on the debt limit, sexual harassment laws .... the list goes on and on. They will use any pretext to bulldoze their way to a desired result, only to be shocked that their opponents might regard turnabout as fair play.

(5) Norman Rogers made the following comment | Apr 22, 2011 12:35:07 PM | Permalink

Beldar, I agree with you. That said, I'd argue that our judicial system has long (really long!) required culpability (mens rea) to convict. From Wikipedia: "The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty unless the mind be also guilty". Thus, in jurisdictions with due process, there must be an actus reus accompanied by some level of mens rea to constitute the crime with which the defendant is charged (see the technical requirement of concurrence). As a general rule, criminal liability does not attach to a person who acted with the absence of mental fault. The exception is strict liability crimes."

It doesn't matter WHY you did wrong -- it only matters that you knew you were doing wrong (with some variations, reckless, etc.)

Hate crimes turn our constabulary into "thought police". A person's reasons or motivations might make mitigating circumstances (e.g. mercy killings), but they ought not define the crime. I don't care why the guy gouged out someone's eye. I only care that he did it purposefully (or recklessly).

Hate crimes are exactly the sort of things that get progressives excited. Doing the right thing for the wrong reason is the highest form of apostasy.

(6) Milhouse made the following comment | Apr 22, 2011 5:44:58 PM | Permalink

Beldar, I can't completely agree with you. Motive has always been accepted as a factor in sentencing. For instance, murder for hire has always been considered worse than ordinary murder, while the murder of someone who has grievously wronged you has always been considered less severe. A poor person stealing to feed his family has always been considered more worthy of leniency than a rich person stealing out of pure greed. So the principle that judges should enhance a criminal's sentence if the crime was committed for a reason we disapprove of is well settled.

So much for why we may institute "hate crime" laws; now for why we should. When someone commits a crime against another person for the usual reasons, there is only one victim. Others may suffer indirectly, e.g. those to whom a victim of theft would otherwise have given his money, or bought things for, but none of that is the criminal's direct doing, and more importantly he didn't intend any of that. But when someone commits a crime against another because he has some identifiable trait, because he is a member of an identifiable subset of the populatoin, everybody else who shares that trait is also a victim; they will from now on live in fear, since it could easily have happened to them, and they could easily be next. What's more, that's the criminal's intention; he wants to strike fear in the whole group who share the trait he hates. He wants to send them a message that they are not safe.

Put simply, when someone spraypaints his tag on another person's building, he has damaged the property and has caused the victim a certain amount of expense and inconvenience in removing it. He may completely compensate the victim by cleaning it up himself, or by paying to clean it up. But when he sprays a swastika on a Jewish person's house, or "KKK" on a black person's, his intention is to strike fear in the entire Jewish or black community. And that is indeed what happens: when a Jew hears of a swastika painted on someone's house, he worries about what comes next, and walks down the street worried that he might be beaten, or that his children might be attacked. And that is what hate crime enhancements are good for: not the murder case, which the law treats seriously no matter what the motive, but the petty crime that the law usually treats as trivial mischief, to be punished with a slap on the wrist, in accord with the small magnitude of the harm done to the direct victim. In such a case, the judge ought to take into account the harm done to every person who shuddered in fear at the news, and should impose a stiffer sentence that will deter others from doing the same.

(7) jb made the following comment | Apr 23, 2011 9:25:45 AM | Permalink

I'm thinking the same as Milhouse. A bunch of hooligans setting fire to a pile of sticks on my lawn in one thing. If the same pile of sticks is fashioned into the shape of a cross and I'm the first black person who has moved into a white neighborhood, the harm to society as well as myself is much greater. Should not the punishment take that into account?

(8) Michele Bachman-Turner made the following comment | Apr 23, 2011 11:06:07 AM | Permalink

Beldar, you don't need to spend your valuable time and considerable brain power on re-cycled issues. Here are three topics that would interest your readers:

1. Should Republicans continue to explore the "birther" issue (and, by extension, embrace Donald Trump as a serious presidential candidate)? Or, should Republicans forcefully reject their party's lunatic-fringe movement to challenge President Obama's birth in the United States?

Would Beldar support a Republican presidential candidate who failed to forcefully reject the birther issue and denounce GOP birthers as extremists??

2. What about the abrupt resignation of Sen. John Ensign (R-NV)? You've got a United States senator, who apparently paid hush money to a former staffer, after Ensign apparently had an extra-marital affair with the staffer's wife. The bi-partisan Senate Ethics Committee will likely release a summary of the evidence, detailing how the GOP senator lied about the hush payment(s) in a sworn affidavit. If the DOJ prosecuted Barry Bonds for obstruction and perjury, shouldn't it also do the same to Sen. Ensign, if the evidence supports probable cause on those and/or other charges?

3. Should the Republican Party continue to aggressively push its political agenda to turn Medicare into a voucher program, while at the same time giving additional tax cuts to millionaires and billionaires?

Beldar, this is a purely Republican blog with a purely Republican agenda. But you shouldn't be afraid to address these timely issues!

(9) Beldar made the following comment | Apr 28, 2011 8:37:40 PM | Permalink

Milhouse, I don't have a problem with a law passed to give special protection, through extra-harsh criminal sanctions, to some sorts of classifications or groups. I approve, for example, capital punishment laws that make the murder of a peace officer or a child a capital offense. Those are particularly vulnerable populations that merit their special protection as part of the criminal laws.

I also don't have a problem with a law passed to punish more harshly certain kinds of crimes based on the intent of the criminal, when the intended beneficiary of that is society at large. I approve, for example, capital punishment laws that make murder-for-hire a capital offense. That protects both the innocent and the wicked, the popular and the despised: A Mafia hit carried out on another Mafia boss is a capital crime, but it's because it's a murder for hire, not because anyone involved is Italian.

But I wouldn't approve of a law that would provide enhanced punishment for murdering a Christian, though — or a Jew, or a Rastafarian, or an atheist. I wouldn't approve of a law that would provide enhanced punishment for crimes committed against left-handed or brown-eyed people. And I don't approve of laws that enhance punishment if the victim is gay, or black, or a Democrat, or drives a Honda, or if the criminal was motivated by hatred for gays, blacks, Democrats, or Honda-drivers.

My moral disapproval of someone who paints a swastika on the window of a Jewish-owned store is much greater than my moral disapproval of someone who instead was painting "Suzy + Bert = Luv!" But the criminal law isn't for making moral judgments, so the same criminal laws ought to be used to prosecute their criminal destruction of property, and the range of punishments to which they're subject ought to be the same. If — within that range — a noxious or innocent motive is considered by the sentencer, that's okay with me too. That such can, and does, happen is simply further proof that hate-crimes laws aren't necessary.

It's for good reason that what's carved in stone atop the entry to the SCOTUS is the phrase, "Equal Justice Under Law." A law that protects and privileges children or police officers from violence doesn't offend my sense of "equal justice under the law." A law that protects and privileges only Asians or art-lovers or high school graduates or cross-dressers does offend my sense of "equal justice under law."

And the law is to be no respecter of persons. But it is not disrespectful to insist that the criminal law be the same for everyone. It's not disrespectful to refuse to key the law to a victim's sexual preference, no more than to the victim's shoe size.

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