Federal Hate Crime Law Passes House

By Jeralyn, Section Legislation
Posted on Wed Apr 29, 2009 at 04:33:05 PM EST
Tags: hate crimes (all tags)

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For the reasons expressed here, I'm disappointed to report that the Hate Crimes Law has passed the House. It's H.R. 1913, the Local Law Enforcement Hate Crimes Prevention Act.

As if murder doesn't already carry life in prison? As if assault with a deadly weapon, attempted murder, using a bomb or firearm in commission of a crime don't already carry stiff sentences?

At least the bill stops short of authorizing a penalty of life plus cancer.[More..]

Sec. 249. Hate crime acts

(a) In General-

(1) OFFENSES INVOLVING ACTUAL OR PERCEIVED RACE, COLOR, RELIGION, OR NATIONAL ORIGIN- Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person--

(A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and

(B) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if--

(i) death results from the offense; or

(ii) the offense includes kidnaping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

(2) OFFENSES INVOLVING ACTUAL OR PERCEIVED RELIGION, NATIONAL ORIGIN, GENDER, SEXUAL ORIENTATION, GENDER IDENTITY, OR DISABILITY-

(A) IN GENERAL- Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B), willfully causes bodily injury to any person or, through the use of fire, a firearm, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person--

(i) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and

(ii) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if--

(I) death results from the offense; or

(II) the offense includes kidnaping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

(B) CIRCUMSTANCES DESCRIBED- For purposes of subparagraph (A), the circumstances described in this subparagraph are that--

(i) the conduct described in subparagraph (A) occurs during the course of, or as the result of, the travel of the defendant or the victim--

(I) across a State line or national border; or

(II) using a channel, facility, or instrumentality of interstate or foreign commerce;

(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct described in subparagraph (A);

(iii) in connection with the conduct described in subparagraph (A), the defendant employs a firearm, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or

(iv) the conduct described in subparagraph (A)--

(I) interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or

(II) otherwise affects interstate or foreign commerce.

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Federal Hate Crime Law Passes House | 48 comments (48 topical)

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I understand your objection to enhanced (5.00 / 1) (#3)
by Joelarama on Wed Apr 29, 2009 at 05:13:42 PM EST

penalties.

But, Jeralyn, the reason this bill is necessary is the same reason (though admittedly on a smaller scale) that early civil rights activists supported federal anti-lynching statutes.

There are places in this country -- and I am from one of them, Mississippi -- where crimes against LGTB because they are LGBT simply are not pursued or are given less priority by local officials.

My high school history teacher was found hanged in a hotel room off teh ineterstate after a tryst with a drifter. Little was done about it -- no APB or equivalent until 48 hours later when some of his fellow teachers went to the local TV station. The DA essentially told people in private "what do you expect if this is the life you lead?"

This type of bill is necessary.

Just to be clear: my teacher was (none / 0) (#4)
by Joelarama on Wed Apr 29, 2009 at 05:22:15 PM EST

a man and the drifter was a man. There is no doubt in my mind that the crime was not adequately investigated because this was man-on-man sex.


But how (none / 0) (#10)
by Ga6thDem on Wed Apr 29, 2009 at 05:49:51 PM EST

is this bill going to help? I live in the south too and I know what you're talking about. If they aren't going to pursue a murder then they aren't going to pursue this kind of thing either.


But an AUSA in the Obama administration (5.00 / 1) (#11)
by ericinatl on Wed Apr 29, 2009 at 05:51:01 PM EST

is much more likely to pursue this type of crime than a local district attorney. It's just the way the world works.


Did you live in the South before 1970? (none / 0) (#13)
by Joelarama on Wed Apr 29, 2009 at 06:04:03 PM EST

Do you remember persons accused of murdering civil rights workers not being prosecuted or acquitted in state courts, with the assistance of Southern sheriffs? Do you know how many lynchings took place (largely in the South) from reconstruction onward, with no prosecution?

I do not pretend that unpunished crimes against transgendered persons, for example, happen on the same scale, but is one life any less valuable?

You admit that these crimes go unpunished. But do you not see the parallels, or see how federal involvement would help?


Yes (none / 0) (#14)
by Ga6thDem on Wed Apr 29, 2009 at 07:28:42 PM EST

and it took how many decades for the person who murdered Medgar Evers to actually be tried and convicted of murder? Unless the crime falls under the federal crime statutes I really don't see it helping much and even then the conviction would be for murder.

I think this kind of thing just give people false hope that things are going to change and they aren't. Writing a law isn't going to change people's attitudes. I think there a lot of other laws that would be more helpful to gays like domestic partnership laws than this one i.e. something that is much more tangible and helpful in day to day life.


The point is: (5.00 / 1) (#15)
by Joelarama on Wed Apr 29, 2009 at 08:25:10 PM EST

the Federal Hate Crimes Statute DOES mean the crime falsl under federal crime statutes.

So your "unless. . ." is the case once this bill passes.


Okay (none / 0) (#17)
by Ga6thDem on Wed Apr 29, 2009 at 09:09:46 PM EST

so hate crimes can now be done by federal prosecutors only? That's what you're saying? But would it have to be in conjuction with another federal crime?

I still think that it's something that Pat Robertson can use to his benefit claiming that fundamentalists are victims of hate crimes too.


Concurrent jurisdiction. (none / 0) (#18)
by Joelarama on Thu Apr 30, 2009 at 12:09:57 AM EST

Unless I'm completely wrong, state prosecutors can prosecute federal crimes, in state court. I think however that DOJ gets precedence -- it can decide to go forward if it is not happy with the idea of the state pursuing it, or if the state does not at all.

And, yes, I do think fundamentalists could be the victim of a hate crime. What's good for the goose . . .


: You are wrong (none / 0) (#42)
by Bemused on Thu Apr 30, 2009 at 02:11:03 PM EST

State prosrcutors prosecute state cromes in state courts and federal crimes are prosecuted by federal prosecutors in federal courts.
Concurrent jurisdiction in this context refers to acts which violate both federal law and state law. The person can then be tried for either the state offense in state court, the federal offense in federal court or both.
Terry Nichols, for example, was convicted in both federal and state courts for th OKc bombing, but it is more common for a federal prosecution to follw a failed state prosecution (the cops in the Rodney King case, for example). Nichols was tried first in federal court but neither takes precedence or bars the other in legal terms suchy as double jeopardy.
Although the Petite policy followed by DOJ creates a presumption against the Feds subsequently prosecuting a person for conduct previously resulting in conviction and punishment in state courts it is a policy not a law and even the policy sometimes permits subsequent federal prosecution when, for example,federal law is addressed to different harms arising from the same act or a compelling case of inadequate state punishment exists.

So pass a law (none / 0) (#19)
by jnicola on Thu Apr 30, 2009 at 07:18:01 AM EST

to create minimum standards for the police and prosecutors, and then enforce that law rigorously. That tackles the actual problem directly. Hate crime laws don't.


i think (none / 0) (#24)
by Bemused on Thu Apr 30, 2009 at 07:52:12 AM EST

it is unlikely a constitutional federal law could be enacted which would allow the federal government to dictate what state criminal laws states enforce and in what fashion. Congress can and does use the taxing and spending powers to coerce states to follow federal preferences but states can still choose to incur financial detriment and act as they see fit.

I tend to oppose both federal encroachment in criminal law (and would actually prefer a rollback in many areas) and "hate crimes" statutes at either the state or federal level, but your proposal in addition to being far more INDIRECT is almost certainly not feasible.

Then (none / 0) (#25)
by jnicola on Thu Apr 30, 2009 at 07:55:41 AM EST

create one at state level. If a politician can't sell the idea that prosecutors and the police should treat people equally - even in Alabama - then there probably aren't that many ideas they can sell.


I think the perceived problem (none / 0) (#26)
by Bemused on Thu Apr 30, 2009 at 08:46:29 AM EST

is that some states will not enact such laws and in some states that do, law enforcement and prosecutors in certain jurisdictions will not aggressively pursue enforcement.

Now, I don't personally believe in creating laws that establish offenses based on the existence of an animus against a group of which the victim is a member. Murder is murder; assault is assault, etc. I seen no reason beyond politcal symbolism to pass new laws covering already illegal conduct, and I don't think politcal symbolism is a sound basis for establishing criminal offenses.

Judges can and should consider all relevant circumstances at sentencing and the sentencing determination can and in some cases should be influenced by the motive and purpose of the criminal act. Someone who beats someone up because the victim made them mad might deserve lesser punishment than someone who beat the victim up because he wanted to scare gays or Muslims of Jews in the community.

That result can be obtained under existing laws. Or, if it felt that the maximum penalty for assault does not provide for adequate punishment for certain assaults, then increase the maximum penalty for assault regardless of the status of the victim and motivation; there may also well be other instances of assault not motivated by bias against groups deserving of more severe punishment.

As long as sentencing guidelines are not mandatory, legislative guidance to courts to consider enhancing the penalties for already existing offenses when race, religion, national origin, sexual orientation, etc., is as far I feel comfortable going.

But, again, the proponents of federalizing and/or creating new state offenses believe the proposed laws are necessary because instances of "hate crimes" exist where the punishment does not fit the crime and that nothing short of mandated enhanced penalties and federalization will change that.

As you say (none / 0) (#27)
by jnicola on Thu Apr 30, 2009 at 09:26:11 AM EST

that states won't pass such laws is a perceived problem. I don't think it's a real problem. If a fraction of the effort put behind seeking hate crimes laws was put behind seeking laws to enforce fair treatment from the police and prosecutors, I think the laws would pass with ease. Plus it's an easier win - I think most people support the basic message of equal treatment under the law. Selling something where that's the basic message seems far easier than selling something where the basic message is for special treatment under the law.


I agree (none / 0) (#31)
by Bemused on Thu Apr 30, 2009 at 09:55:37 AM EST

with the abstract proposition that most people "support equal treatment under the law."

It does not follow from that premise though that elected and appointed officials will endeavor to enact laws that treat all equally or that those charged with enforcement will do so "equally" regardless of the identity of the suspect or victim.

This seemingly contradictory scenario can result from many factors, including but not limited to: the personal biases of the officials; the reality that political risk and reward is not measurable by reference to majority views alone but also with respect to the intensity of support or opposition and the level of relative apathy existing as to a certain issue.

If 60% of the people could be categorized as supportive of a view, 30% opposed and 10% don't care/don't know, that's obviously 2:1 superficially. On a great many issues though the minority is comprised of a large proportion of people who feel very intensely about it and may base political decisions on that issue while a large proportion of the supporters are very tepid in their support and the issue will not influence their political decisions. You seem to feel that all is needed is greater effort to motivate the tepid or apathetic folks, but it seems to me these issues get a tremendous amount of publicity (I'd venture outsized publicity in relation to the percentage of all crimes they represent) and have for years. Still, the perceived need to for stroner action to deter them exists.

I'm not as sanguine as you are about there being sufficient political pressure in a great many jurisdictions for law enforcement personnel not personally so inclined to be compelled to more aggressively pursue crimes motivated by racial or orientation bias.

I'm still not in favor of creating "hate crimes" statutes at any level but that's because I don't think the laws themselves accomplish anything concrete with reagard to criminal justice that can't be accomplished using existing laws.

New laws are just words on paper. some might even think that passing laws will block real world progress because once a "hate crime law" is passed attention dies down and unless law enforcement prosecutors and judges use the laws nothing changes. My thought is the same desired change can be accomplished without any new laws if law enforcement, prosecutors and judges use the laws we already have to punish and deter crimes motivated by bias.


I don't think (none / 0) (#35)
by jnicola on Thu Apr 30, 2009 at 10:21:48 AM EST

it's 60/30/10; in fact I think you'd be hard pushed to find more than maybe 10% that disagree, which immediately changes your calculus. But more importantly, I think people do care about it, and can be made to really care about it if the right campaigns are carried out locally, highlighting some of the miscarriages of justice that have been created. And if the same activist focus was dedicated to that sort of campaign as has been for hate crimes, I think the camapigns would be noticed, would be strong and - unlike for hate crime campaigns - effective.


T he numbers (none / 0) (#36)
by Bemused on Thu Apr 30, 2009 at 10:27:46 AM EST

were not meant as anything but illustrative. I did not intend to suggest those numbers apply to this issue generally or in any specific jurisdiction.

I have to ask though given that these issues are in the mainstream media all the time and that there are a great many activists working at public persuasion what magic bullet are they overlooking that would result in the change they desire as to hoe crimes against certain classes are pursued?


: The pendulum (5.00 / 1) (#39)
by jnicola on Thu Apr 30, 2009 at 12:42:38 PM EST

is already, I think, starting to swing. The pressure the Innocence Project has been able to put on prosecutors to open up cases where there is potential DNA evidence of innocence is essentially the same issue - it's about putting pressure on prosecutors to live up to basic professional standards. The growing campaigns against the enforcement of idiotic Zero Tolerance rules; against sex offender laws that criminalise 14 year old girls who take pictures of themselves in their bras; against the militarisation of the police and the abuse of no-knock raids by SWAT teams, are all about enforcing standards on those who are responsible for enforcing the laws.
If there was one magic bullet, though, I think it's video and photography. People being able to see police failing to exert their powers properly, or being able to see the real damage done to an individual in a crime, has far more ability to anger them than hearing/reading about it does. Ryan Moats was one example; Dallas alone has several others. And pervasive recording is coming. If in ten years at least three quarters of interaction with the police isn't on film or record somehow - mobile phone cameras/audio recorders, dashboard cams, helmet cams - I'll be very surprised.
(Incidentally, off the topic, I think this works for other issues as well - if the videos of Gitmo detainees surface I think that will change that debate very quickly; I've heard few people arguing that Abu Ghraib helped elicit decent intelligence since the pictures there emerged.)

No, working through the states clearly (none / 0) (#41)
by MyLeftMind on Thu Apr 30, 2009 at 02:03:38 PM EST

creates more disparity and conflict. Look at the fight for marriage equality. Because activists tried to achieve equality in some states, we now have more than half the states with discriminatory laws and state constitutional changes that contradict the protections afforded by the U.S. Constitution. Some states allow gay marriage, others ban it but allow "civil unions" and yet other states have rushed to pass laws allowing them to ignore another state's same sex contracts. The disparity threatens the balance between states as the full faith and credit clause no longer applies to marriages.

When society has social problems on this scale, with huge imbalances throughout the nation, the best solution is for the federal government to just lay down the law and force all states to abide by it. We needed the Civil Rights Act of 1964 to resolve the hundred year argument over racial inequalities. It wasn't a complete solution, but there's no question that southern states were dragged forward kicking and screaming by that act. Clearly racism still exists, but you don't see the kind of communication of racism that existed when we were young. Landlords and employers who blatantly discriminated no longer do so, or they do it in secret. Over time, society becomes less racist, partly because racism is rarely promoted. New generations come along without being brainwashed in the old racist mentality.

The same will happen for LGBT citizens. Homophobes will have to be more careful about what they say, and those who don't will be publicly punished. At the very least, it will cut down on the gay bashing that is so common throughout the country. Over time, with less anti-gay rhetoric in schools, churches and even in popular culture, more people will realize gender flexibility and sexual orientation are as genetically programmed as our hair and eye color. But the more we try to work through individual states to effect change, the more the resistance solidifies in other parts of the country.

The federal approach is good, and we should use the same method to create marital equality.


Disparity is a feature, not a bug. (none / 0) (#44)
by jnicola on Thu Apr 30, 2009 at 02:47:15 PM EST

It allows the nation to try out different approaches and, empirically, work its way towards the correct position over time, with far less argument and conflict. Roe is the obvious example of overreach; without it the US would probably now be in the position of most European states on abortion, with somewhat more graduated laws, accepted by the huge majority, with far less poisonous rancor. British style empiricism has had far more success than virtually any other political philosophy.


A hundred years of lynchings says otherwise. (none / 0) (#46)
by MyLeftMind on Thu Apr 30, 2009 at 06:00:10 PM EST

says otherwise. Disparities don't work when it comes to human rights, especially when the result is terroristic murder in some states designed to control minority groups all over the country.

We have the same problem with gay rights. While we spin our wheels "trying out different approaches in different states" with marriage equality, the biggest discrimination of all is from the federal government in the form of IRS rules. Children of same sex couples are royally screwed because they're denied the financial benefits (tax, medical, retirement, survivorship) enjoyed by children of straight, married couples. What good is a domestic partnership in one state if another state can ignore it, and if it confers no federal benefits?

Human rights require a federal equalizing approach. It's ridiculous that our country still has second class citizens fighting for equal rights in this day and age. We need to repeal DOMA and DADT, make civil unions legal in all 50 states (in order to accommodate those states that currently "allow" it), enforce the equal protection and the full faith and credit clause so all states recognize contracts & licenses from other states, then fix the IRS code and all other rules and laws that affect marriage rights and responsibilities.

If Dems don't fix this hot-button issue at the federal level, Repubs will use it again in 2010 and beyond as their fundraiser/Get Out The Vote strategy.
It's better for the Obama Administration and our Dem Congress to take a stand now than still be tip-toeing around the issue for the next eight years.


I'll bet now that (none / 0) (#48)
by jnicola on Thu Apr 30, 2009 at 06:54:25 PM EST

in eight years gay marriage will be legal in at least eight states; civil unions in at least a dozen, and in twenty years it'll be valid in all, even if the Democrats were to do absolutely nothing. The opponents of it are dying. Why bother fighting when we're going to win anyway? All fighting will achieve is - possibly - a slightly faster pace of change at the expense of considerably more opposition and bitterness; and it will actually make the opposition stronger and letthem cause more harm where they can. Ignore them; let the sands of time bury them. Paying them attention gives them more credibility.

Problems with waiting: (none / 0) (#49)
by MyLeftMind on Fri May 08, 2009 at 01:26:48 PM EST

I might die before my family can get my retirement package, a loss to them of about 80% of its value. (Currently, I can will them a portion of it as beneficiaries, but they're taxed on even that small percentage, and they're taxed on the rest of my/their estate as well. Marriage eliminates that tax burden on my family and gives them the full value of the retirement package I've earned.
The wingers are going to use gay baiting again in the 2010 elections, but we can minimize its effectiveness by establishing equality at the federal level. Once it's done, it's done. States can still spin their wheels with anti-gay legislation, but when the IRS and other gov't agencies recognize state civil unions and same sex marriages, LGBT citizens will simply get married in the states that allow it.
We're in a transition period across the country. This is a good time to drive a wedge between moderate Republicans and the religious right. Moderates are leaving the GOP in droves, but the crazies are still pushing the far right agenda. My sense is that moderate Repubs and Dems who don't particularly like gays are still willing to accept the concept of constitutional equality. Helping them understand how these radical right wedge issues destroyed the GOP might undermine the anti-gay agenda.

Personally (none / 0) (#1)
by ericinatl on Wed Apr 29, 2009 at 05:02:12 PM EST

I'd prefer ENDA to the Hate Crimes act, as a gay man. But living in the South, I have to say, I'll feel a bit safer if there is a federal law protecting gays. Because lord knows there is no local or state protection.

I say this not because I expect to get attacked for being gay (though there was a VERY recent case in Atlanta where this happened), but because any law that recognizes homosexuality as something worth protecting permeates through the whole society (slowly perhaps, but it does have an effect).

: A (none / 0) (#23)
by jnicola on Thu Apr 30, 2009 at 07:48:18 AM EST

law that recognizes homosexuality as something worth protecting?
Homosexuality is not some sort of endangered starling, for God's sake. It's an aspect of humanity. Protect humans, and you protect homosexuality. And we already have laws that protect humans. If they're not being enforced, then that's a problem which needs fixing, sure, but not by identifying one special group of humans deserving of extra protection. (As an aside, do you think that the sort of bigot that won't punish the murderers of gay people isn't discriminating against other people he doesn't like? Fixing the problem at its root fixes it for them too.)

Hate crimes are a form of terrorism (none / 0) (#2)
by MyLeftMind on Wed Apr 29, 2009 at 05:06:53 PM EST

This isn't about limiting individual rights to free speech or legislating against thoughts or beliefs. Hate crime legislation is a way to prevent organized terroristic activities that encourage followers to act violently toward oppressed minorities. Imagine how many fewer lynchings we would have had if the federal government had arrested KKK members for promoting murder.

You can hate gays and gender benders all you want, you can "love the sinner but hate the sin" and even promote those ideas. No one is going to be prosecuted for saying God hates gays. But killing queers is different than other kinds of murder. Yes, the victim is still dead, but the crime affects every other person of that category in a way that a regular murder doesn't. A hate crime targets all members of the group, and it's effect is to terrorize that group.

This legislation will prevent future attacks and murders, even if it only does so by preventing murderers from announcing why they killed someone.

Encouraging people (none / 0) (#20)
by jnicola on Thu Apr 30, 2009 at 07:34:31 AM EST

to identify themselves as belonging to a particular group based on one part of their personal physiology, heritage, lifestyle or desires is only rarely* a good idea. Encouraging people to regard themselves as part of a common humanity every member of which is both unique and similar is far more sensible. Laws should, as far as possible, be drawn up to apply to everyone.

*There are exceptions; when considering, for instance, the aspects of health where genetic heritage is truly important. Even there, though, it's usually overdone. There's a reasonable argument that the tendency to gum disease in Asians, for example, is due to a (more common) lack of early preventative dental care as well as to the genetic factors that have commonly been blamed. Moreover, a focus on the genetics detracts from the far more important point that a treatment/cure for gum disease will benefit all the sufferers, and that the only real reason to comment on the genetics is in the hope that it may help identify such a treatment.


I agree about the shared brotherhood of man... (none / 0) (#28)
by salvador dalai llama on Thu Apr 30, 2009 at 09:29:49 AM EST

But the fact remains that hate crimes, or rather, bias crimes, are used as a kind of terrorism. I won't pretend any objectivity on this front: I was the victim of a bias crime last year when my church (Tennessee Valley Unitaritan Universalist Church) was attacked by a right-wing extremist. The shooter's manifesto made it quite plain that this was a hate crime and a political act in his mind.

Ironically, since the shooter was targeting us for our political beliefs rather than our religious ones, it didn't fall under the hate crimes statute, IIRC.

But I can attest to the fact that it did make a difference to know that I was targeted because of who I was. It made it more difficult for me to engage in political activity around the election for one thing.

: God, I'm sorry. (none / 0) (#32)
by jnicola on Thu Apr 30, 2009 at 09:59:54 AM EST

I thought the UUA's response to the shooting was excellent - I remember the ad in the Times and the concern it showed for the victims and for the madman, which spoke to the virtue in the UUA. But he's going to jail for life without parole for something that wasn't defined as a hate crime. The punishment was about as bad as it could be, given that he agreed to plead guilty. What more could have been done?

: Tell that to blacks who have been (none / 0) (#47)
by MyLeftMind on Thu Apr 30, 2009 at 06:09:46 PM EST

targeted because of their skin color, or gays, lesbians and transgender people who are obviously different from "the norm." You can hide your personal life, but you can't always hide who you are.
Should people who have been fired from jobs because they're queer not identify with the group where their oppressors have stuck them? Plenty of gays and lesbians would be happy to "fit in" as regular people, but eventually their families and co-workers figure it out.

I'm sure everyone has heard what Rep. Foxx (none / 0) (#5)
by magster on Wed Apr 29, 2009 at 05:33:17 PM EST

said about Matthew Shepard's murder being related to his homosexuality as a "hoax", and the dangerous hatred of gays is a threat in this society. With that said, Matthew Shepard's killers were already facing the death penalty without a hate crimes law.

Only because the local (none / 0) (#7)
by Joelarama on Wed Apr 29, 2009 at 05:43:47 PM EST

prosecutors and police investigated the crime.

Not every small town is a college town.


: So make them (none / 0) (#21)
by jnicola on Thu Apr 30, 2009 at 07:35:38 AM EST

investigate, either through law, public opinion, or something else.

Not really funny (none / 0) (#6)
by SteveCNJ on Wed Apr 29, 2009 at 05:35:01 PM EST

I think "life with cancer" was meant to be funny, but it strikes me as crass. Obviously the law doesn't apply if the penalty is life without parole, or death. It only applies if the penalty can be enhanced.

There are lots of civil rights experts and law enforcement experts who can explain hate crimes legislation to you. just reach out.

when you say it is "dangerously close" to penalizing thought, you fail to describe what the actual danger might be. we have enhanced penalties for killing judges and police officers for a similar reason (heightened threat to society). is that "dangerous"? what about enhanced penalties for pre-meditated murder? is that penalizing thought? seems to me you need to be on record opposing these tenets of america law before making crass jokes about sentencing.

: Your points on enhanced penalties (none / 0) (#12)
by Joelarama on Wed Apr 29, 2009 at 05:57:29 PM EST

are good. We have special penalties and categories for killing judges, police officers . . . the president . . . because we have made a policy determination that crimes against certain persons or categories of person pose an extraordinary threat to society.
And, doesn't outlawing prostitution come awfully close to limiting freedom of expression? I don't see the hate crimes bill as involving a freedom of expression issue.
My main problem with enhanced penalties is that I'm simply against more draconian sentencing for most crimes. I'm not enthusiastic about that.
The key reason I support a hate crimes bill is to fill-in where local officials are unlikely to prosecute because of their biases. It's a policy decision I agree with.

: As far as possible (none / 0) (#22)
by jnicola on Thu Apr 30, 2009 at 07:39:52 AM EST

which is far farther than we currently do, leave the penalties up to the judge (preferably with some involvement from the juries) in each individual case. They're far better placed to judge the precise degrees of moral turpitude in each case, and apply the punishment which would be best for society as a whole - which will necessarily differ from situation to situation, and which no law could ever predict.

: correct me if I'm wrong (none / 0) (#29)
by salvador dalai llama on Thu Apr 30, 2009 at 09:37:44 AM EST

But doesn't the legislation require that a crime be committed first? That is, the issue of "penalizing thought" only comes up when the accused has done a physical action which itself requires penalty? That is, I can be as biased as I want to against a particular group with no problems, but once I start beating them up, that's when the penalizing gets invoked, right?

Jeralyn (none / 0) (#8)
by Ga6thDem on Wed Apr 29, 2009 at 05:47:29 PM EST

I always thought this was a good idea until I saw you talking about it on TV and what a bad idea it was. It changed my thinking about it and I'm not against it too.

: Ack! (none / 0) (#9)
by Ga6thDem on Wed Apr 29, 2009 at 05:47:55 PM EST

that should be NOW against it too.

I've said my bit (none / 0) (#16)
by andgarden on Wed Apr 29, 2009 at 08:43:49 PM EST

In short, I disagree.

I think (none / 0) (#30)
by DancingOpossum on Thu Apr 30, 2009 at 09:45:42 AM EST

...the real problem with any hate-crimes legislation is that it criminalizes thought. That bugs the crap out of me.

All crimes (none / 0) (#34)
by Bemused on Thu Apr 30, 2009 at 10:15:30 AM EST

have a mental state element.

Hate crimes are not different because they punish thought and other crimes do not. I can think about beating you because you stole my girl, I can think about beating you because you are gay, or i can think about beating you just because I'm in the mood to hurt some random person. None of them are crimes with or without hhate crimes statutes.

At the point I strike you, all of them are crimes with or without hate crime statutes, and all require the intention (thought) to strike you. Under general laws I am indeed potentially subject to more severe punishment if my intention (thought) involved inflicting higher degree of injury upon you.

Hate crimes differ not in punishing thought, but in singling out certain specific thoughts which pertain to the motive for the crime not the desired injury flowing from the crime.

I don't believe that the motive for the crime is irrelevant to the punishment imposed. I do think some reasons for committing a crime are "better" and some are "worse" and that such differences should be considered by the sentencing court. I don't think the motive for the crime should be an element of the offense.

It is true, as pointed out above, that we have such crimes now with regard to acts against law enforcement, judges, etc. and hate crimes laws do fit pretty neatly under the same rationale -- a societal consensus such crimes involve broader harms and greater danger to society beyond the individual victim. I'd prefer eliminating those laws and making such considerations relevant only to sentencing across the board.

Mitigating vs aggravating circumstances (none / 0) (#37)
by jbindc on Thu Apr 30, 2009 at 10:47:59 AM EST

I do think some reasons for committing a crime are "better" and some are "worse" and that such differences should be considered by the sentencing court.

Exactly. We have aggravating enhancements on sentences for crimes so egregious, that the defendant should get "more" than the normal punishment, just as we have mitigating circumstances to possibly reduce sentences for someone who committed a crime for a much less "hateful" reason.

(EXAMPLE: a man robs a store with a gun because he lost his job and needed food and money to feed his kids. A court could look at those circumstances and show leniency, even though he intended to rob the store with a gun).

I don't think you can fairly argue that sentence enhancements should be eliminated if you also do not argue that sentence reductions for mitigating circumstances should also be eliminated.


: I too was perplexed (5.00 / 0) (#38)
by Bemused on Thu Apr 30, 2009 at 12:38:12 PM EST

by the off the cuff statement a bill should be opposed (in part) because it contained a directive for the sentencing commission to consider refining application of aggravating factors (I also thought it was rather disingenous that the post conveniently neglected to mention the bill contained the same directive with regard to mitigating factors). I was merely amused that the author arrogantly refused to offer a rationale for the seemingly bizarre complaint.
Obviously, in one fashion or another a rational and fair sentencing procedure MUST always allow for the consideration of both aggravating and mitigating factors.
The problem with mandatory sentencing guidelines incorporating aggravating factors is not that they allow for courts to enhance punishment where deserved, but that mandatory systems assign arbitrary enhancements that must be applied in a rote mechanical fashion wherever that factor exists assigning fixed enhancements to the sentence. The converse problem was that the mandatory system also required mechanical application of mitigating factors assigning fixed reductions and maybe even more problematic, prohibited courts in most cases from considering mitigating factors other than the ones expressly approved in the guidelines.
There is nothing at all wrong with a legislative body stating that courts must consider certain factors in determining sentences, as long as courts retain discretion to appropriately weigh all the factors and impose a a sentence just in the particular circumstances.

Another thing... (none / 0) (#33)
by DancingOpossum on Thu Apr 30, 2009 at 10:05:55 AM EST

...is that long sentences don't deter crime. We see this every day in arguments against the death penalty. (Which would be immoral even if it did deter crime, anyway). What studies have found is that a heightened possibility of being caught/imprisoned is what most deters crime.

The gray areas (none / 0) (#43)
by jnicola on Thu Apr 30, 2009 at 02:38:46 PM EST

are part of the core reasons for not making this part of the law. I think juries and judges can be trusted to figure out the appropriate punishment in unique circumstances - and every case is unique - far more than politicians.

Do I read this correctly? (none / 0) (#45)
by roy on Thu Apr 30, 2009 at 02:56:12 PM EST

If one were to punch somebody in the stomach once because of his religion, which would otherwise probably be simple assault, the puncher would face up to 10 years of imprisonment?

It's not clear to me how strongly the "cause" of the crime has to be proven under this law, but in practice I expect defendents will carry the burden of proof if there is any whiff of hate involved, which could be as simple as the parties involved being of different races. That may seem appropriate to some, but please realize just how muddy and convoluted it can be to prove somebody's motivations. And remember what we saw when prosecutorial zeal and race issues combined in the Duke lacrosse rape case. If this new law had been in effect, the players would have not only been attacked by a more resourceful prosecution, they would have been stuck with the practical need to prove their own non-racism, and those who couldn't (whether due to lack of pursuasive proof, or due to actually being rascist) would have the possibility of life in prison looming. That's a great way to encourage confessions by even innocent defendents, all because of extremely hard-to-prove and hard-to-disprove motivations.

Those who support punishing hate crimes more seriously than similarly violent non-hate crimes, please insist on an objective standard for determining what constitutes a hate crime.

When I read the short summary of the law, it seemed to be mostly about providing aid to local and state authorities. That didn't bother me. Let the authorities closest to the problem decide how to address it, but give them access to resources needed to address it successfully. Where the local authorities refuse to take crimes motivated by hate as seriously as other crimes, isn't there already a strong Equal Protection argument to get the feds involved?