Thursday, May 03, 2007

Hate Crimes Legislation

The House of Representatives voted today to pass the Local Law Enforcement Hate Crimes Prevention Act of 2007. The Senate is soon likely to pass the bill as well. The president, on the other hand, is suggesting a possible veto.

Conservative organizations such as Focus on the Family Action are up in arms about the bill. Here's a quote from their call to petition Congress to reject the bill:

Gary Schneeberger, senior media director of government and public policy at Focus on the Family Action, said such “a two-tiered justice system” could erode freedom of speech – and ultimately lead to pastors being arrested “for 'inciting violence' simply for saying what the Bible says about homosexuality."
Liberal organizations such as the Human Rights Campaign are thrilled about the bill. Here's a quote from their article lauding the bill's passage:

"This is a historic day that moves all Americans closer to safety from the scourge of hate violence," said Human Rights Campaign President Joe Solmonese. “Today, legislators sided with the 73 percent of the American people who support the expansion of hate crimes laws to include sexual orientation and gender identity.

Basically, the bill accomplishes three things:
  • It empowers the federal government to provide special financial assistance to local law enforcement to prosecute "hate crimes".
  • It empowers the federal government to directly prosecute hate crimes, regardless of when or where or how they were carried out (previous laws restricted jurisdiction to areas where the federal government would have criminal jurisidiction anyway; this law makes a special exception for any "hate crime", allowing the federal government to prosecute regardless.)
  • It expands the definition of "hate crime" to include sexual orientation and "disability" (whatever that means specifically... it isn't defined).

The Focus on the Family Action statement seems ridiculous to me. We've had federal and state "hate crimes" legislation on the books for years, and they haven't proven to be any threat to free speech. Various white supremacist groups are still allowed to exist, and to put out their racist literature, without being arrested for "thought crimes". I see no reason why this should start anything different.

This bill, in itself, clearly retains free speech protections. The bill only comes into play when there is a violent crime. At that point, the federal justice department can determine (in connection with local law enforcement, generally) whether it can reasonably be surmised that the motive for the crime was "hate" against a protected group of people. If so, then the extra protections in this bill come into effect.

There is not, for example, a provision in the bill to punish the speech of someone who is claimed to have motivated a hate crime from somebody else. There's no indirection prosecution of speech, and no sign that it is forthcoming.

Just to be extra clear on this point, the bill has a provision that reads:

Nothing in this Act, or the amendments made by this Act, shall be construed to prohibit any expressive conduct protected from legal prohibition by, or any activities protected by the free speech or free exercise clauses of, the First Amendment to the Constitution.

For all those reasons, I consider that objection raised by various conservative groups to be specious. The more often they raise baseless fear-mongering objections to bills like this, the less I trust their opinions on other matters.

On the other hand, I don't think this bill does much to "move all Americans closer to safety from the scourge of hate violence", either. Hate-motivated violence is, in the end, still violence. The majority of hate-motivated violence can be prosecuted equally well as simply violence. This bill does not make any activity criminal that was not previously criminal. It does not apply significant penalties to any activity that was not already subject to significant penalties. So, in that way, it does not provide any additional deterrent to someone who might carry out a hate-motivated violent crime. It provides some assistance for local law enforcement in prosecuting these crimes; and it lets the federal government step in if local law enforcement is (in the federal government's view) corruptly refusing to prosecute. I don't see how any of that brings anybody "closer to safety".

There are some significant concerns about the bill which have nothing to do with the "thought crimes" fear-mongering of certain conservative groups. Those concerns are best laid out in this post on the Volokh Conspiracy blog, and an earlier post that goes into more detail.

Many of the objections can be summed up by saying that there is no evidence that the law is necessary, or that it will be effective. If the law isn't necessary or effective, then it is at best a symbolic gesture, and at worst may have unintended consequences.

The objection that makes the most sense to me is given by the author of the earlier post:

The column argues that in some cases local jurisdictions lack the resources to prosecute hate crimes, citing the Matthew Shepard case as an example of the high expense involved. Lack of resources is a common complaint of law enforcement authorities at every level — from prevention to investigation to prosecution. But there is no evidence that this claimed lack of resources is a problem unique to hate crimes, or to crimes against gays. Perhaps there should be a general federal local law enforcement assistance act, but why give special assistance to one class of crimes that seem no more costly to law enforcement than another?

A general law enabling the federal government to assist local law enforcement (upon request, and upon approval) with resources and/or finances would make some sense to me. A specific law allowing this only for "hate crimes" seems peculiar. The HRC article refers to the "extraordinary expenses involved in hate crime cases", but it's not clear to me that hate crime cases as a rule have extraordinary expenses. The HRC article gives one example of an expensive case, expensive largely because it was high-profile... but there are plenty of other expensive high-profile cases that have nothing to do with hate against a group of people. Why shouldn't the federal government be allowed to help out with those cases as well, if necessary?

It seems that the sense of necessity of the law is largely built on anecdotal evidence, and that it's purpose is more symbolic than efficacious.

And, there's a larger concern, from a legal Constitutional standpoint. For more details than I can give here, see points (4) and (7) in the earlier Volokh Conspiracy post. But, it seems likely that this law is an unconstitutional intrusion of the federal government on areas where states have sole authority. The text of the bill itself goes to great lengths to try to alleviate this restriction by pointing out how it is related to "interstate commerce" which the federal government can constitutionally regulate. But, you can tell it is stretching when one of the hooks in the bill connecting it to "interstate commerce" reads that a crime can be federally prosecuted if:
the defendant employs a firearm, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce
Yeah, you read that right. If the gun or knife or whatever was bought 10 years ago in Texas, but the crime was committed in Oklahoma, then AHA!... this crime affects "interstate commerce" and therefore has federal jurisdiction. I think (and the much more erudite legal minds at Volokh Conspiracy seem to think) that that level of justification goes beyond even the broadest interpretations of the Commerce Clause that our courts have adopted in recent decades.

To its credit, the statement from the White House announcing the possibility of a veto lists these legal and evidentiary concerns, and ignores the "thought crime" concerns that seem to have no basis in reality. But it seems odd to me that the concerns listed in that document (and that I have listed here) are sufficiently grave to warrant a veto, or even the threat of one. If the bill is largely symbolic, and will probably be rejected as unconstitutional anyway, why veto it?

The only reason I can think of is a political one, shoring up support among core constituencies. Unfortunately, there are a great many conservatives, mostly religious, who do not understand the legal ramifications of the Commerce Clause; who are easily persuaded by a news release from an organization such as Focus on the Family Action; and who have no exposure to information from sources that contradict their accepted views. If Bush doesn't veto this bill, they will be convinced that he has willingly opened the doors to prosecution of Christians for "thought crimes" and the end of religious freedom for Christians in America.

Avoiding that ire among a core constituency is the only sensible reason I can think of to veto the bill. It seems to me it would be better to let the bill pass, serve its symbolic purpose, and be invalidated by the courts the first time it is actually put into use. In the end, maybe that's what Bush will decide to do.

Mark

27 comments:

brad said...

If the bill is unconstitutional, and I agree with Bush that it is, then he should veto it. Duh.
:-)

Bush took an oath to uphold the constitution. You said he should sign the bill even though it is "likely unconstitutional" because it is "largely symbolic."

You lost me. Bush learned from his mistake signing McCain-Feingold, also unconstitutional, which he signed with the expectation the Supreme Court would throw it out. The Supremes don't like being patsies in these political games so they upheld it, and Bush learned his lesson. Now the Supremes are about to take another look at M-F and are likely to dismantle it, as they should. Bush learned his lesson, the lesson being that he needs to take his oath of office seriously, and he will veto this bill.

MarkC said...

Brad,

You may be right. But is this really the first time, other than McCain-Feingold, that probably unconstitutional legislation has passed Bush's desk? I'd be surprised if that was the case.

Mark

Kevin said...

Mark,

Thanks for raising this interesting and topical issue. I agree that the bill would probably be an unwarranted intrusion on federalism. I also agree with Brad that the President should only approve legislation if he believes it to be constitutional (and otherwise agrees with it).

I'm not very familiar with hate crime legislation, though it has always struck me as peculiar. Either I don't fully understand its rationale, or I simply disagree that select categories of motivation should add to a crime.

Indeed, it seems that, implicitly, those select categories of motivation are themselves, in some form, made to be a crime, and, like all crimes, they are apparently intended to be discouraged by legislation.

To this extent, I see the point that hate crime legislation implicitly restricts free speech or even free thought, given that jurists are called to divine a criminal's motivations to add to their crime.

e.g. If the belief that "homosexual behavior is immoral" legally constitutes "hate" to some jurists, and I suspect Focus on the Family (FF) presumes it will ultimately be interpreted thusly, then such legislation does seem intended to discourage that belief and related speech.

I'm curious about the statistics surrounding this issue, given the name of the bill: "The Local Law Enforcement Hate Crimes Prevention Act". Does hate crime legislation actually prevent hate crimes? crime? hate speech? hate?

Kevin

MarkC said...

Kevin,

Lots and lots of us are interested in the statistics showing that hate crime legislation is effective for prevention.

I don't think there's anyone out there offering such statistics.

I doubt that they exist.

Mark

Kevin said...

Mark,

You're probably right.

The US Hate Crime Statistics Act of 1990 requires the Attorney General to track hate crime statistics, though their interpretation is up for debate. I also found a helpful tabular summary.

A similar breakdown of the actual crimes would be interesting, but I haven't found much. What I have seen is conflicting information regarding whether the majority of hate crimes are intimidation and vandalism or violence.

There are the expected problems with comprehensive reporting and classification, but based upon a cursory inspection, I don't see the effect of legislation.

Presumably, at some point, there should also be some effect simply from increased education intended to reduce certain biases and increase overall tolerance, which could potentially occlude any actual effects of increasing criminal punishments. (not to be confused with hate education, for which I erroneously first searched)

The classification of "hate" is what apparently concerns FF, et al., since, by my reading, they don't appear to oppose hate crime legislation in general -- only the potential interpretation of their own "bias" as legal "hate". e.g. I imagine that they would oppose Carpenter's legislation that he says would test for an "anti-gay double-standard".

Do you think FF's concerns are unfounded?

Kevin

MamasBoy said...

While I agree that many of the conservative organizations have misrepresented this particular bill, greatly weakening their case, their concerns are not completely unwarranted. Similar laws have passed in Canada and Sweden, and lower courts there have supported overzealous prosecutors in convicting people like Pastor Ake Green and William Whatcott for preaching or publishing so-called anti-gay views. The Knights of Columbus, a Catholic men's fraternal organization was fined for "public humiliation" caused by denying some lesbians use of their hall for a wedding resception in CA. A Catholic school in Canada was also forced by the courts to allow a gay student to bring his boyfriend to prom. That's just the tip of the iceberg regarding the prosecution of religious people in other western countries for holding "anti-gay" views and acting on them. It is important to remember the context in which these objections are raised.

Honestly, from a very quick read, I agree with your analysis of the legal facts. So, yes, the concerns to this particular bill are overblown. However (at least in my view) looking at the big picure there is also reason to be concerned. Where does one draw the line between the freedome of religion and gay rights? Am I the only one in thinking the 9th circuit court of appeals would likely push the boundaries of any law that was passed? Perhaps my perception is wrong, but it seems to me they've been rather partial in the culture wars. I also find it interesting that many of these cases are being successfully prosecuted at least at the lower court level when there is still significant opposition to homosexuality among the older generations. What will happen when todays kids leave their own mark on the legal system? Perhaps I'm just too pessimistic about the future of civil rights in this country.

http://www.washingtonpost.com/wp-dyn/articles/A45538-2005Jan28.html
http://www.actupinsask.org/content/view/67/

MB

MarkC said...

Kevin,

You wrote: Do you think FF's concerns are unfounded?

Yes, I do. As long as the Ku Klux Klan is still allowed to exist publicly in America with protection from our courts, in spite of all the racial hate crime laws that have been on the books for years, I see no reason to think that extending those same hate crime laws to sexual orientation will suddenly start a slippery slope to the end of the First Amendment.

The fact that the text of the bill limits its scope to violent felonies inflicting (or attempting to inflict) "bodily harm" on an individual... and the fact that the text of the bill specifically states that no First Amendment protected activity can be affected by the bill... make me think that ample protections are in place to allow pastors to preach freely about homosexuality from their pulpits with no fear of prosecution.

FF (and others) seem to think that this bill is criminalizing "hate". It isn't. Whether or not their speech is legally "hate speech" or not has nothing to do with whether or not it is protected under the First Amendment. Hate speech (directed at groups, not at individuals) is protected in America, regardless of how it is defined, so as far as I can tell FF has nothing to fear.

Mark

MarkC said...

MamasBoy,

You wrote: Honestly, from a very quick read, I agree with your analysis of the legal facts. So, yes, the concerns to this particular bill are overblown.

If the people doing the "overblowing" were TV pundits, editorial writers, or the like, this would be no big deal. We're all used to taking what those people say with a grain of salt. It is only because the speakers here (most notably James Dobson) have a huge following of people who rely on them for basic news of the world that this becomes a big problem.

There are a great many Christians in this country who do not have either the time or the inclination to double-check what they hear from Focus on the Family, but who accept it as certainly true. Over time, as these "overblowings" pile up, such followers develop a victim complex that is very unhealthy. When a whole large group of society develops that victim complex (and Christians are not the only group to have such problems, by any means), society as a whole suffers.

So, yes, I agree with you that within the larger context there are general trends to be concerned about.

But, in the present context, the damage being done to society by this "overblowing" is significant, and dangerous. The sky is not falling because of this bill, and those who are trying (and succeeding) to convince their followers otherwise are doing us all a disservice.

Getting back to the merits of the bill itself...

I doubt that even the 9th Circuit, in all its ideological fervor, would take the step of interpreting this law in any way that would circumvent the First Amendment. The example of the Ku Klux Klan that I mentioned in my comment to Kevin, along with the clear wording of the bill itself, give me confidence on that point.

Mark

MamasBoy said...

"I doubt that even the 9th Circuit, in all its ideological fervor, would take the step of interpreting this law in any way that would circumvent the First Amendment. The example of the Ku Klux Klan that I mentioned in my comment to Kevin, along with the clear wording of the bill itself, give me confidence on that point."

While I agree with you in the case of posting flyers and holding demonstrations (which this hate crimes law deals with), I also view this as a foundational step to implement other laws. Once "special protected" status is gained, it is much easier to gain other rights, even at the expense of religious freedom. I don't see Christian schools being able to exclude homosexual teachers or prohibit gay prom partners 10-20 years from now if gays gain a protected status. Already, Christian adoption agencies are already coming under fire and having their licenses yanked (or threatened to be yanked) for excluding gays. We've seen this before with the distributing of contraception at California hospitals. Give in to state demands and compromise your conscience or we'll fine the hell out of you.

Am I doing a good enough job of saying I agree with both you and FotF: you in details that this law doesn't affect people like FotF says it does (and they are damaging their reputation) and FotF in the overall gist that this law is still dangerous for first amendment rights? How's that for a noncommital response?

MB

MarkC said...

MB,

Am I doing a good enough job of saying I agree with both you and FotF...?

Yes, you are. :)

Thanks for your input. I think your concerns are certainly valid, though I remain hopeful that we won't reach that point in the next 10-20 years.

Mark

Kevin said...

Mark,

Mark wrote: "I see no reason to think that extending those same hate crime laws to sexual orientation will suddenly start a slippery slope to the end of the First Amendment."

I agree. If there is a First Amendment slippery slope, it started with the enactment of the first hate crime laws, not this one in particular. But I think its implications are just becoming evident to those whose beliefs might soon be considered to be "hate", thereby making them subject to those laws.

Mark wrote: "The fact that the text of the bill limits its scope to violent felonies inflicting (or attempting to inflict) "bodily harm" on an individual"

This applies to federal assistance, not the classification of "hate crime", doesn't it? I think FF's primary concern revolves around classification. Or am I missing something?

Mark wrote: "... and the fact that the text of the bill specifically states that no First Amendment protected activity can be affected by the bill"

Aren't all laws already clearly subject to the Constitution? Does adding such a tag line somehow make legislation more constitutional?

Mark wrote: "FF (and others) seem to think that this bill is criminalizing "hate". It isn't. Whether or not their speech is legally "hate speech" or not has nothing to do with whether or not it is protected under the First Amendment."

Right, it has do to with punishment for a crime. But what is the purpose of hate crime laws if not to discourage specific "hate" (beliefs and speech) through their additional criminal punishment?

Do you think jurists might interpret FF's beliefs regarding homosexuality to be "hate"?

Kevin

MarkC said...

Kevin,

There is a real risk that if James Dobson assaults a homosexual, that he will receive a more severe penalty than if he assaults a heterosexual. I agree that this is a problem with the law.

Is that what you are referring to when you say, "jurists might interpret FF's beliefs regarding homosexuality to be 'hate'"? If so, that's quite accurate. Once a violent crime has been committed, it is a very fuzzy standard determining what part "hate" played in the motive for the crime, and James Dobson might be convicted of a "hate crime" because of what he has said about homosexuality. I doubt it, but it is possible.

I think FF's primary concern revolves around classification.

Well, Section 249, where "Hate Crime Acts" are described, is where I pulled all my quotes about "bodily injury" and that sort of thing. As far as this bill goes, violent crime is an inseparable part of the definition of "hate crime". The hate itself is not a crime.

If there is a First Amendment slippery slope, it started with the enactment of the first hate crime laws, not this one in particular.

If there was such a slippery slope in effect, wouldn't we have seen some of its results by now? I can't think of any that we've seen, in, say, the area of race.

Mark

steviepinhead said...

MarkC:
"There is a real risk that if James Dobson assaults a homosexual, that he will receive a more severe penalty than if he assaults a heterosexual. I agree that this is a problem with the law."

While I agree with most of Mark's other comments about this law--particularly as to the trend of "over-federalizing" of crimes on only the flimsiest of bases--I'm not sure I agree with this one.

If (our purely hypothetical) "Dobson" gets involved in an affray with a heterosexual, presumably the underlying motivations would be traceable to the specific interaction, since "Dobson" possesses no additional or extrinsic motivation to assault someone simply because he or she is heterosexual.

Of course, if "Dobson" involves himself in an assault on a homosexual--a representative of a group toward which "Dobson" has repeatedly expressed a profound antipathy--it certainly remains possible that "Dobson" 's motivation would be entirely context-specific, and would have zero to do with his previously-expresssed antipathy.

And, certainly, if "Dobson" were charged under a hate crime law--let's say, a similarly-phrased state law, to set aside the federalism entanglements--his defense would be entitled to show all the specific circumstances that led to the assault.

And the defense would also be entitled to show that "Dobson" had no basis to believe (in advance) that the victim was a homosexual. Or that, even if "Dobson" had some reason to know or suspect that the victim was homosexual, that nothing that was said or done during the course of the lead-up to the assault suggested any sort of homosexual-focus to whatever "Dobson" 's claimed "real" motivation was.

But where, in reality, there are assaults that are predominantly motivated, not by anything specific that transpired between the victim and the assailant, but by the victim's mere membership in a group, wouldn't the prosecution also be entitled to show that there were no non-"hateful" precipitants (or that the ones advanced were pretextual)? Or that "Dobson" had indulged in anti-homosexual words or gestures during the build-up to the affray?

I suppose the "Dobson" prosecution's case would be thinner--and Mark's concerns would have greater validity (for me)--if the only arguable "hateful" motivation were his prior statements, the statistical unlikelihood of a "random" act of violence "just happening" to target a member of a small minority which "just happened" to be the very minority which "Dobson" had previously denounced.

But wouldn't a properly-instructed jury still be entitle to consider--and then to either accept or reject, based on the totality of the evidence and the demeanor and credibility of the witnesses--inferences of this kind?

And if the jury determined that there really was a primary group-prejudice motivation that had little or nothing else to do with the specifics of the victim or of his or her interaction with "Dobson," isn't this the essence of a "hate" crime?

If we allow harsher punishments in the cases of crimes involving other such group-rather-than-individually motivated behaviors--that is, if we accept the notion that such "impersonal" crimes should earn harsher punishments than run-of-the-mill crimes, in order to preserve the broader peace of society and to protect innocents who have not voluntarily entered into any relationship with the assailant and who have done nothing else (beyond being a suspected member of a group) to "invite" the assailant's attention--why should "Dobson" not run the same risk of greater punishment?

MarkC said...

Stevie,

I agree with you.

The problem with the law (not this law in particular, but hate crime laws in general) that I perceive is that the guidelines are not very specific. The law here criminalizes a motive (only when it is acted on) by adding extra punishment for the motive itself behind the crime. In most cases, motive is nearly impossible to determine with confidence.

As the laws are written, I don't see any specific guidelines about how one goes about determining the motive behind the crime. This is left up to the jury, and is therefore a subjective process... therefore "risky". Juries could quite easily get a subjective judgment like that wrong.

I don't think this flaw is serious enough to say that the laws should not exist. I would, however, like to see them tightened up somewhat.

On the other hand, this hasn't been a big problem, so I'm not too concerned about it.

Mark

Kevin said...

Mark,

Is that what you are referring to when you say, "jurists might interpret FF's beliefs regarding homosexuality to be 'hate'"?

Basically, yes. Furthermore, if Dobson's beliefs legally constitute "hate", then it seems like the government would be obligated to diminish those beliefs in other ways, e.g. through education.

Well, Section 249, where "Hate Crime Acts" are described, is where I pulled all my quotes about "bodily injury" and that sort of thing.

Ah, thanks. So, "sexual orientation" would only apply to attempted "bodily harm", while the other hate categories apply to lesser crimes (like intimidation, vandalism, etc.). Is that right? Any idea why they want to give it less protection?

As an aside, the similarity between 249.a.1 and 249.a.2 confused me until I read this page linked from the Volokh update which describes the reasoning for them. It looks like they're throwing overlapping legislation against the constitutional wall to see what will stick.

As far as this bill goes, violent crime is an inseparable part of the definition of "hate crime". The hate itself is not a crime.

I agree that hate alone is not a crime, but it can be part of the crime. How much a part of the crime is presumably proportional to the additional punishment.

If there was such a slippery slope in effect, wouldn't we have seen some of its results by now? I can't think of any that we've seen, in, say, the area of race.

Hate crime laws established a mechanism by which beliefs are discouraged through additional criminal punishment. I think the slippery slope primarily corresponds to the temptation to expand upon those beliefs and their application. This expansion can occur explicitly or implicitly through varying interpretations of "hate", the protected categories, or their application.

Of course, the government discourages or encourages beliefs by a variety of mechanisms, not just this one. But presumably there is a line somewhere that we do not want to cross -- a line which some democratic nations have apparently already crossed.

On the other hand, this hasn't been a big problem, so I'm not too concerned about it.

I'm not particularly well versed on this topic, so you may be right. But I do see cultural, if not legal, attempts to expand the definitions. Articles like this make me wonder.

Kevin

Kevin said...

Stevie,

If the group, rather than the individual, is the focus of hate crimes, then why not protect any group that may be affected by a crime? Why not protect blondes where their stereotype may be part of the motivation for a crime? Or why not protect Dobson if his advocation against homosexuality is the motivation for a crime against him?

Also, how much a part of one's presumed motivation must "hate" be in order to be considered a "hate crime"? And do hate crime laws actually "preserve the broader peace"?

Kevin

steviepinhead said...

Kevin, I may not be understanding your question: how would one go about protecting a group, without protecting the individuals within the group whom an assailant decides to target?

"Blondes" probably are a legally-protected group, at least to the extent that an assailant targeted a "blonde" on the basis of race (or gender? or, um, mental challenge?)...

And Dobson presumably is protected against someone who would target him merely due to his exercise of his free speech rights.


While I can understand the concerns expressed here about trying to "mind-read" for the "real" motivation of a crime, prosecutors and jurors do similar things all the time in cases ranging from securities violations (was the violation "knowing" and "intentional"?) to sex offenses (did step-daddy intend to do something prurient, or was he just performing a hygiene-related act?) to murder and assault (premeditated or not?) and self-defense ("reasonable" and "justified" or not?) cases.

While I recognize there's an additional delicate balancing act vis-a-vis freedom of expression, the line between word and deed is, again, not an entirely novel one.

MarkC said...

Kevin,

You wrote: if Dobson's beliefs legally constitute "hate", then it seems like the government would be obligated to diminish those beliefs in other ways

There is nothing in the law that would suggest that Dobson's beliefs would in themselves constitute "hate". If a jury came to that conclusion, I don't think it would be binding beyond that particular decision. I can't imagine how the government would come to the conclusion that particular beliefs (such as Dobson's) constituted "hate" and therefore had to be dealt with somehow. There's certainly no such provision in this law.

In fact, in this law, "hate" itself is not defined beyond the words "because of". The law applies to someone who commits a violent crime "because of" race, sexual orientation, etc. Without the violence, there is no hate, according to the way the law is written.

This law does not even define "hate crime" itself, but just refers back to the Violent Crime Control and Law Enforcement Act of 1994. Here's the definition of "hate crime" from that law:

`hate crime' means a crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime, because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person.

Again, there is no definition of "hate" apart from "hate crime". A hate crime is a "because of" crime. Without the crime, there is no hate.

In neither law is there any hint of censure on any speech, idea, thought, or attitude that is not acted out on in a violent way.

You wrote: I do see cultural, if not legal, attempts to expand the definitions

Those definitely exist. However, I found it interesting that when I did a Google News search for that event you referenced (which happened a month ago), only a few local items turn up, and nothing after a couple of days. The local cops made a point of calling it a "hate crime" (I wonder if that was more a public-relations measure than a legal-enforceability thing), but they don't appear to have taken any concrete action to arrest anybody. This might be because they never found the people responsible... but it could also be that they know that no crime was committed, so they would have nothing to charge the individual(s) with. Putting out some press releases about how serious they are taking the issue tends to mollify the locals, while not committing them to any concrete (completely unenforceable) action.

So yes, there are certainly cultural entities (CAIR being one of the most vocal) trying to put at least social limitations on certain kinds of speech. I don't see any danger, though, of those efforts gaining legal sanction, resulting in (to reassert the example given repeatedly by James Dobson) pastors being arrested for preaching against homosexuality from the pulpit.

Mark

MarkC said...

Stevie,

You wrote: "Dobson presumably is protected against someone who would target him merely due to his exercise of his free speech rights."

I don't think Dobson has any protection on that score in the way that he would if someone targeted him because he was male, or white, or heterosexual.

To fix that, our "hate crime" laws would have to be broadened, to include much more general terms. Maybe we could add "ideology" and "lifestyle choices". Maybe we could add "income" and "style of living", which would directly address the motivations of the Virginia Tech shooter.

Or maybe we should find a way to make our "hate crime" laws completely general. We could take the current law, and rewrite it this way:

Whoever ... willfully causes bodily injury to any person ... because of any action or characteristic that is not particular to the individual but shared widely within society.

Now that would be a law that would apply across the board, rather than singling out particular characteristics or activities for special protection.

Mark

Kevin said...

Stevie,

I may not be understanding your question: how would one go about protecting a group, without protecting the individuals within the group whom an assailant decides to target?

I agree. Sorry if I'm not being clear. In the above, I'm trying to question the reason for specially protecting certain groups and not others in hate crime legislation.

And Dobson presumably is protected against someone who would target him merely due to his exercise of his free speech rights.

But would this be a hate crime? Presumably members of his group, who similarly advocate against homosexuality, would feel intimidated if Dobson were attacked with that motivation.

Likewise, abortion doctors as a group may be intimidated if one of them were assaulted for performing an abortion. It's a crime motivated by hatred against a group, but committed against an individual.

While I can understand the concerns expressed here about trying to "mind-read" for the "real" motivation of a crime, prosecutors and jurors do similar things all the time...

I think there is a valid difference between "intent" (your examples) and "motivation" (hate crimes), but you're right about trying to "mind-read" in court. I think what exacerbates this, though, is that the definition of what constitutes "hate" may vary.

Kevin

steviepinhead said...

I don't know if I'm up to arguing why various imaginable "groups" have been left out of the law.

My understanding is that the law has been extended to groups that are perceived as having been the victims of deep-seated prejudice, discrimination. and violence.

Which groups or characteristics this can be fairly said about is probably itself something which changes as society and culture change.

Certainly valid distincitions may be drawn between "intent" and "motivation," Kevin. My point of comparison was the degree to which we frequently expect juries to determine an internal mental state based upon various kinds of external indicators (just like we all have to do, all the time, in trying to figure out where others are coming from).

Kevin said...

Mark,

I can't imagine how the government would come to the conclusion that particular beliefs (such as Dobson's) constituted "hate" and therefore had to be dealt with somehow. There's certainly no such provision in this law.

I imagine some conclusion on what constitutes "hate" must be reached before one is convicted of a hate crime.

I have no personal experience, but there are hate crime education programs in schools and elsewhere that are intended to diminish bias before it leads to criminal activity. Is it presumptuous of me to think that they draw conclusions about which biases they intend to diminish?

Again, there is no definition of "hate" apart from "hate crime". A hate crime is a "because of" crime. Without the crime, there is no hate.

So a crime of love or pride that is "because of" one of those criteria is also a hate crime? Vandalizing a wall with the Star of David is a hate crime if it is done because they love Jews?

but it could also be that they know that no crime was committed

You're probably right. That seems to be the case in another somewhat similar incident.

Kevin

Kevin said...

Mark,

Whoever ... willfully causes bodily injury to any person ... because of any action or characteristic that is not particular to the individual but shared widely within society.

That does seem more fair, though I wonder how "widely within society" would this cover? The smaller a minority, the less likely they will be protected?

It's also quite broad, and I wonder how it would be used. Perhaps the characteristic should also be arbitrary to the conditions of the crime?

I've also been wondering about the overlap between hate crimes and terrorism. They seem to have a lot in common.

Kevin

MarkC said...

Kevin,

You wrote: "So a crime of love or pride that is "because of" one of those criteria is also a hate crime? Vandalizing a wall with the Star of David is a hate crime if it is done because they love Jews?"

Vandalizing a wall isn't a crime of violence against a person. Hate crime, as currently defined (federally at least), is only a crime of physical violence against a person. So, yes... a crime of physical violence against a homosexual person "because of" your love for homosexuals would be a "hate crime" by the definition of the law. I doubt we'll ever be faced with such an odd scenario in practice. Maybe a Law and Order episode will take it up someday. :)

Mark

Kevin said...

Mark,

Mark wrote: "Vandalizing a wall isn't a crime of violence against a person. Hate crime, as currently defined (federally at least), is only a crime of physical violence against a person."

It looks like there are at least two legal definitions. For example, The Hate Crimes Sentencing Enhancement Act defines a hate crime as a crime where the victim or property is intentionally selected based upon race, color, religion, national origin, ethnicity, gender, or sexual orientation.

Federal Initiatives in the Fight Against Hate Crimes summarizes various hate crime related legislation, which ends with the section "6) The Department of Education: Promoting Anti-Bias' Programs".

Mark wrote: "So, yes... a crime of physical violence against a homosexual person "because of" your love for homosexuals would be a "hate crime" by the definition of the law. I doubt we'll ever be faced with such an odd scenario in practice."

Or maybe someone who goes around hugging and kissing people of a specific gender, color, race, ... ? :) That seems a touch more likely. Especially gender. :)

But my point is that, if not explicitly in the law, then implicitly in the interpretation of the law, hate is realistically a part of "hate crime". But if not hate then at least bias, and confronting and changing that bias is aptly the focus of prevention.

Kevin

Kevin said...

Stevie,

Stevie wrote: "Which groups or characteristics this can be fairly said about is probably itself something which changes as society and culture change."

But only protecting those groups that society chooses to recognize seems subjective and unequal. Is it fair that the smaller the group, the less deserving they are of protection?

Stevie wrote: "My point of comparison was the degree to which we frequently expect juries to determine an internal mental state based upon various kinds of external indicators (just like we all have to do, all the time, in trying to figure out where others are coming from)."

I agree, but hate crimes seem unique in that the mental state exists independently of the crime. In fact, the additional punishment is because the bias exists independently of the crime. If it were solely limited to the individual crime, then there would be no effect on a larger group.

Indeed, it seems that "hate" could be broken off into a separate crime of terrorism. A hate killing of a homosexual becomes a killing and a terrorizing of the homosexual community.

Perhaps doing this may make it more clear what is actually being punished and it might allow us to better identify the full range of terrorism and therein help us be more cognizant of that tenuous balance we maintain between our freedoms and our protection.

To be clear, I do see that it is worse to spray paint a swastika on a synogogue in order to terrorize than to spray paint a smily face. I even think hate speech and otherwise spreading harmful beliefs is harmful to society.

But we are careful in limiting the government from going too far in punishing beliefs... so much so that we permit some harm to society in order to better protect all of our freedoms. The question seems to be, where is the proper balance?

Kevin

Kevin said...

There's another recent post on The Volokh Conspiracy, this one more general titled Hate Crimes Laws: Dangerous and Divisive by David Kopel. It seems to be a very brief summary of his much larger Issue Paper that he wrote in 2003.

I haven't evaluated everything he says, but one suggestion David makes that hasn't been mentioned here is that hate crime hoaxes should logically be treated as hate crimes, since instilling fear is accomplished whether or not it is a hoax.

Kevin