Nathan Moore's Thoughts
The Problems With Hate Crimes: Replacing “What” With “Why”
A flurry of discussion has arisen over at Volunteer Voters due to something that Sean Braisted noted on his blog. The topic is whether crimes committed due to the victim’s sexual orientation ought to be included in “hate crime” legislation.
Well, if you accept the premise that hate crimes are proper in the realm of criminal law, then, sure. Add to that crimes against fat people, skinny people, invalids, and those who prefer cats over dogs, too.
There are two problems with hate crime legislation. The first is one of public policy intertwined with constitutional law. Hate crime legislation creates a preferred political class within the criminal justice system. One of the better arguments that hate crime legislation is unconstitutional comes under an equal protection analysis, which I agree with. Some victims are more protected than others. And with the advent of victims’ rights legislation, and as in Tennessee, it having been constitutionalized, the equal protection problem grows in importance.
Second, hate crimes laws make motive an element of the crime itself. Some commenters on the post over at VV seem to confuse the legal terms “intent” and “motive”, which is the entire crux of the hate crime debate. Intent and motive are distinct and separate concepts. Most criminal laws (save perhaps the very few strict liability laws such as driving under the influence, the implied consent law, and among a smattering of others like negligent homicide), require some level of intent (or mens rea). The question of “motive” is not a question of what, but of why. We seldom punish individuals for the “why”. Motive can help infer intent, but it is not the same thing. For example, one can be convicted of theft without need for the showing of a motive as to why you stole. Motive most comes into play when the facts to establish intent are weak or unclear. In the matter of hate crime laws, motive trumps intent and becomes the crime. That’s a whole new ballgame, and in my view, a dangerous one.
June 21st, 2007 at 8:57 am
[...] Attorney Nathan Moore weighs in on the legalese of hate crimes Intent and motive are distinct and separate concepts. Most criminal laws (save perhaps the very few strict liability laws such as driving under the influence, the implied consent law, and among a smattering of others like negligent homicide), require some level of intent (or mens rea). The question of “motive” is not a question of what, but of why. We seldom punish individuals for the “why”. Motive can help infer intent, but it is not the same thing. For example, one can be convicted of theft without need for the showing of a motive as to why you stole. Motive most comes into play when the facts to establish intent are weak or unclear. In the matter of hate crime laws, motive trumps intent and becomes the crime. That’s a whole new ballgame, and in my view, a dangerous one. Spread It Around: These icons link to social bookmarking sites where readers can share and discover new web pages. [...]
June 21st, 2007 at 9:21 am
You are very good at explaining…I totally understood that. I learned something new today.
June 22nd, 2007 at 1:12 pm
No, it doesn’t make motive an element of the crime. The way most of these hate crime laws work, for example the James Byrd law in Texas, is to enhance punishment. They don’t create a multiplicity of new crimes, they simply increase the sentence if the hate element is involved.
In other words, the defendant has already been convicted of each and every element of the crime before before the hate element is considered.
If we gave a burglar, for example, 5 more years because he was in possession of a firearm, would you think that was an unconstitutional infringement on his 2nd Amendment rights?
It works like aggravating factors in a death penalty case. As you may know, in Tennessee it is an aggravator to murder a police officer in the performance of his duties, or a district attorney or judge.
Let us say that I get convicted of DUI and in revenge, after I get out I assassinate the prosecutor and the judge. That would tend to show that I should be executed, rather than given life in prison, but the question would only be reached after I had already been convicted of first degree murder.
Are the lives of prosecutors, police officers, and judges inherently more precious than other lives? No. Would you think this aggravating factor violates equal protection because it creates a special class of victims?
Let us say that I commit a private act of vandalism. I spray paint “Nathan Sucks” on your house. The let us say that I spray paint a swastika on the side of the Jewish synagogue. Which is worse? Both are bad acts and would certainly deserve to be convicted and punished for both. I think a reasonable argument can be made that I deserve to be punished more for spray painting the swastika on the Synagogue because that indicates a design to subvert the public order by pitting one group against another, in the same way that killing a prosecutor or judge indicates a design to subvert the criminal justice system.
June 25th, 2007 at 10:05 am
That’s actually quite semantical - one can add elements to increase punishment for the same basic crime (ie assault and aggravated assault, or burglary and aggravated burglary), which operate only to enhance punishment.
Hate crimes operate in the same way, save the enhancer is motive. I think that is bad law.
June 25th, 2007 at 7:09 pm
But why is it “quite semantical”? Look, the prosecution is generally not required to prove motive, but evidence of motive is relevant and would come in.
We also create protected classes for all sorts of policy reasons. If I have consensual sex with a 23 year old woman, it is not a crime. If I have consensual sex with a 13 year old girl, it is a crime because she is a member of a protected class.
I’ve already mentioned the murders of police officers, district attorneys, and judges, but that’s only an aggravating factor if I realize that the person I am killing is within the protected class. If I shoot at random into a crowd and just happen to kill a district attorney, it might be first degree murder, but that particular aggravating factor would not apply.
June 28th, 2007 at 6:02 pm
I don’t see why nobody posts god damned examples? what about students that go onto this website to find out information? You’re all fags.
October 6th, 2007 at 3:48 am
I’ve been exploring for myself, for some time, the notion that hate crime laws violate due process by substituting a matter of fact of someone’s opinion for evidence of intent, and I agree with you, Nathan.
I believe you’re right, “sentence enhancer” is mere semantics. We’ve seen recent court cases that have started cracking down on sentence enhancers, although those have not yet gone far enough. But the Supreme Court did hold that sentence enhancers “operate as the functional equivalent of an element of a greater offense.” Which means they need to be proven.
The ACLU has contributed positively here for pushing laws to require that evidence of hate is not enough: the hate has to have been a motivating factor in the crime itself. But I don’t think that goes far enough, either.
Bottom line: the sentence enhancment of a hate crime is justified on the notion that the criminal is threatening the whole class of people. But without evidence that a. that group was threatened and b. that there was intent to threaten, applying the hate crime enhancement violates due process.