Should “hate” be a separate category of crime?
Torture in Chicago
Despite some initial hesitation by Chicago authorities to call the torture of a mentally disabled white man by four young black people a hate crime, they were charged with committing one, according to the Cook County State’s Attorney’s office.
Additional charges were: “aggravated kidnapping, aggravated unlawful restraint, [and] aggravated battery…[one was also charged with] robbery and possession of a stolen motor vehicle…[and three] also were charged with residential burglary.”
Many of the details of what happened to the victim can be found in this post by Professor Jacobson. This would appear to have many of the elements of the type of offense known as a hate crime, obligingly documented and disseminated by the alleged perpetrators themselves.
But “hate crime” has been a somewhat controversial legal category in general. Opponents question whether this special category of crime is necessary. After all, crimes are already quite well-defined in our criminal justice system, and there is a certain amount of discretion on the part of judges and juries in sentencing. Should the degree of penalty depend on what the perpetrator thought about the victim?
Originally, hate crime laws were designed to provide for a federal remedy in cases in which states either couldn’t or wouldn’t prosecute, or to intensify state penalties that were not considered serious enough. The rationale was this:
Penalty-enhancement hate crime laws are traditionally justified on the grounds that, in Chief Justice Rehnquist’s words, “this conduct is thought to inflict greater individual and societal harm…. bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest.”
According to Paul Butler, a law professor at George Washington University, hate crime laws started:
…as a response to groups like the Klan and other kinds of race-based terrorist organizations. The sense was that these groups, when they committed acts of violence were destabilizing communities and people in a way that was different from other kinds of crime, and so the sense was maybe if there were enhanced penalties if you acted motivated by race or gender or sexual orientation, maybe the punishment would better reflect the crime.
Hate crime definitions in this country are not limited to crimes against minority groups. Some people, however, seem to think they should be, and have even suggested that the category “white people” should be removed from the groups that can be possible victims of hate crimes:
The FBI’s hate crimes statistics for 1993, which similarly reported 20% of all hate crimes to be committed against white people, prompted Jill Tregor, executive director of Intergroup Clearinghouse, to decry it as “an abuse of what the hate crime laws were intended to cover”, stating that the white victims of these crimes were employing hate crime laws as a means to further penalize minorities…
James B. Jacobs and Kimberly Potter note that white people, including those who may be sympathetic to the plight of those who are victims of hate crimes by white people, bristle at the notion that hate crimes against whites are somehow inferior to, and less worthy than, hate crimes against other groups. They observe that while, as stated by Altschiller, no hate crime law makes any such distinction, the proposition has been argued by “a number of writers in prominent publications”, who have advocated the removal of hate crimes against whites from the category of hate crime, on the grounds that hate crime laws, in their view, are intended to be affirmative action for “protected groups”. Jacobs and Potter firmly assert that such a move is “fraught with potential for social conflict and constitutional concerns.”
It certainly is. But so far, whites have not been removed from the list of possible hate crime victims, as the Chicago case demonstrates. Actually, in the Chicago case the defendants have been charged with two counts of committing a hate crime: “one because of the victim’s race and the other because of his mental disabilities.”
The Illinois statute defines “hate crime” this way:
A person commits hate crime when, by reason of the actual or perceived race, color, creed, religion, ancestry, gender, sexual orientation, physical or mental disability, or national origin of another individual or group of individuals, regardless of the existence of any other motivating factor or factors, he commits assault, battery, aggravated assault, misdemeanor theft, criminal trespass to residence, misdemeanor criminal damage to property, criminal trespass to vehicle, criminal trespass to real property, mob action, disorderly conduct, harassment by telephone, or harassment through electronic communications as these crimes are defined in [various sections of the Code]…
However, it turns out that in the present case the potential penalties for some of the other crimes charged—in particular, aggravated kidnapping— are much heavier than the penalty for committing a hate crime. Here’s a good summary of the possible penalties these defendants face:
The maximum sentence for a hate crime in the state of Illinois is a $25,000 fine and 3 years in prison. The maximum sentence for kidnapping is $25,000 and 7 years in prison.
If the perpetrators are found guilty of a hate crime and kidnapping, and if the prosecutors were to successfully have these charges served consecutively (not concurrently) then they could serve up to 10 years in prison.
But since the man has a mental disability, then the alleged crime in question could be considered an aggravated kidnapping, which has a maximum punishment of a $25,000 fine and 30 years of prison.
The exact sentence also depends on if these offenses were the first for the classification of the crimes. Second offense punishments for hate crimes, kidnapping, and aggravated kidnapping are 3 to 7 years, 3 to 7 years, and life, respectively…
Because the reason for the crime is an element of hate crimes, criticism of the prosecution of hate crimes often tends to rest on the idea that hate crimes “punish thoughts, not behaviors.” This is indeed a strong argument against creating this special category of crime, and for claiming that the criminal justice system is sufficient without them and that they represent a dangerous and slippery slope as well as an unnecessary one. Assault, aggravated assault, deprivation of civil rights, kidnapping, attempted murder, manslaughter, and murder are all traditional categories of crime that serve as avenues for vigorous prosecution of offenses without getting into the questionable realm of possible thought crime.
[Neo-neocon is a writer with degrees in law and family therapy, who blogs at neo-neocon.]
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Comments
“…questionable realm of possible thought crime.”
Winston Smith would agree.
Hate is an element present in most, if not all, crime. Adding “hate crime” to the charges just ramps up the emotion, and signals to all that this is an especially heinous crime. Well, we already have the ability to ramp up the seriousness of crimes by categorizing them as misdemeanors and the various classes of felonies.
“Hate crime” is an intrusion into the individual’s thoughts. If I attack someone out of hatred for their race, and am charged with a hate crime, I’m having to answer for my actions (the actual attack) and the motivation (racism). What if I hate someone because of their race, but don’t attack them? Am I still liable in a court of law for my hatred? By separating the motivation from the act, it seems to establish the precedent that I can be punished for my opinion, however misguided, ignorant, repulsive, or irrational it may be.
I would, maybe qualify that. Hate is likely present, and a contributing factor, for many, if not most crimes of violence. But, I suspect that a lot of less violent, petty, crimes, that is not the case. For example – I expect that most shoplifters are operating from greed, and not hate.
I think though that the general intent is to penalize further those who commit violent crimes due to group hate of some sort – presumably not because the individual victim is hated as an individual, but rather because they are a member of some (protected) group. And, from that point of view, the “white” hate crime charge may be more legitimate than the disability one – I would think that the guy was not targeted because the suspects hated the disabled, but, rather, found them easy victims.
“Hate crime” seems to say that the lives and property of my political clients are worth more than those of yours–although I may just deign to throw you a bone now and then (as, apparently, is being done for white Republicans in Chicago).
It is enough to charge the Chicago Four with kidnapping, aggravated assault and battery, and perhaps a few others.
As for the metaphorical bone being tossed to white Republicans by calling this a “hate crime”, Leftist jurists probably hope to intensify a sense of mutual alienation and mistrust between black and white. This is the gut instinct of my inner cynic.
Hate is an element present in most, if not all, crime.
No, it isn’t. Willie Sutton didn’t rob banks because he hated bankers, and nor do most robbers. In fact most crime is committed between people who are of the same set, and therefore clearly not motivated by hatred of that set.
If I attack someone out of hatred for their race, and am charged with a hate crime, I’m having to answer for my actions (the actual attack) and the motivation (racism). What if I hate someone because of their race, but don’t attack them? Am I still liable in a court of law for my hatred?
Of course not. You haven’t committed a crime, so there’s nothing for you to be liable for. But when you have committed a crime, your motivation absolutely should be a factor in sentencing, and always has been.
When a crime is committed, not because of anything specific to the victim but because the victim is a member of a larger set of people whom the criminal hates, that crime ought to be punished more severely, because the immediate victim is not the only victim. The entire targeted community are victims, and the sentence should reflect that.
There is a huge difference between a bored teenager tagging a building to impress his stupid peers, and someone who sets out to strike fear in the hearts of an entire community by means of his graffiti; their physical act may be the same, but their punishment should certainly not be.
I doubt hate is an element in most crime. A person may steal, for instance, out of need or greed, without hating the victim.
Should their be hate crimes?
No. It is legal to hate someone. It is the crime (against property, person, etc) that is the crime. Intent can be used (1st degree murder, manslaughter, etc.) and is.
But this is an attempt to criminalize thought with a specific outcome.
It has always been a bad idea, because then questionable offenses can be labeled hate crimes because hate was involved.
The real issue with hate is creating an atmosphere of hate that inspires people to act (especially mentally disturbed), and that cannot be addressed except as a battle of ideas in a world of truly free speech.
Should it be used in Chicago case?
Yes. What happened in Chicago is reprehensible and can be punished as such. However, likely the only way to make progressive-lite supporters realize this is make them live up to their own rules. And as often as possible.
Hard core proglodytes know the score because they designed these rules as the start of an attack on free speech, and don’t care about the collateral damage it causes on their own side (although they will fight it – e.g. claim that a minority can’t commit a hate crime because of oppression etc.)
Thank you for this very fine post. Years ago, when the “hate crime” legislation was first being debated, I was active in an anti-KKK group, but even then I thought that the legislation was a bad idea, for the very reasons that you expressed so well.
I’m sorry — I meant this to be a reply to “windbag”, not a comment on the neo-neocon’s post.
Should “hate” be a separate category of crime?
No. This was a bad idea from its very inception.
In some sense our justice system does prosecute “thoughts”. For example the convicted felon is more likely to receive a more lenient sentence if he or she shows evidence of remorse during the sentencing phase of the trial (as opposed to appearing callous and triumphant about his or her crimes.)
However that is left to the discretion of the judge. It is not written into the statutes.
As for this case, my thoughts run to taking the four perps on a plane ride and at about 30,000 feet, kick them out the door sans parachute. They are human garbage and I don’t relish the thought of them being wards of the state.
What you are describing are sentencing issues; that is very different from what is being discussed in the post, which is a charging issue.
Of course. I stated as much in my post.
It is entirely a sentencing issue. Whether a crime is motivated by hatred is only relevant in sentencing. It’s a charging issue only to the same extent as any other sentencing factor — any question of fact that affects the sentence must be found by the jury, not by the judge.
I don’t buy it, no matter how Rehnquist tried to rationalize it.
I believe the goal all along was to make “hate” itself a crime. A thought-crime, of course, as popularized by Orwell.
But what is “hate”? “Hate” is whatever the perpetually aggrieved want it to be. Once “hate” is accepted as a crime, there’s no thought which can’t go unpunished, should the dastardly perpetrator be so unwise as to articulate it. And the First Amendment finds its permanent home on the rubbish heap of history.
It’s just a logical extension of Political Correctness. PC is a methodology for suppressing, by extra-legal means, anything someone doesn’t want someone else to say. But with “hate” considered a crime, and the definition of that crime entirely up to the perpetual grievance lobby, the suppression can be done via the machinery of the law.
So, how to do it? How to make “hate” an actual crime? Start by pretending that it already is; day after day, year after year. Or, as they now say, “normalize” that concept. It will take a while, but when the goal is the fundamental transformation of the country, they can be slightly patient.
The official steps to make it happen for real still depend on legislators, judges, and juries. The next step will be to accede to the demand that “hate” and the crime it enhances be separated. Sound reasonable, right? I punch somebody in the head and knock them out; it could be for a perfectly sensible reason, such as robbery, or it could be because I hate them. Now separate the punch from the “hate” … and make both of them crimes. Just a small bit of legislative sleight-of-hand, but it does the job. “Hate” becomes a crime, and everybody thinks that’s very reasonable. Voilà, mission accomplished.
A few things.
As many have already said, all crimes have an element of hate, or at least a disregard for human rights. The key is what was the motive for the crime – that is where the application of this should have been placed, I believe. But SJWs have been alive and well and acting in ways above- and underground for decades, and this is one result.
These people who decry “whites” being included in this are the same ones who have redefined the term “racism” to eliminate the possibility of whites being victims or targets of racism, or discrimination based on race. I’ve commented here on LI about this before: the one(s) who control the language control the argument, and ultimately control and declare who “wins” the argument (you guessed it – they do!).
Like PC, this is another tool in the SJW or leftist-progressive arsenal. It goes back to Critical Theory ideology created by Communists at the Frankfurt School and the spreading of this mind-set in academia and society, which I’ve also commented about on LI in the past. 😉
Finally, I believe there is a piece of backstory missing as to why these laws were passed. As I recall, it had much to do with the gay agenda, and the MSM harping about anti-gay attacks, and that there was no way to address such “hate” in the law as it was. I haven’t done the research to link to anything (I will “reply” with links if I have a chance to check later today), but this debate was not able to pass to the law stage until the LGBTQ fascist-gay-agenda activists pushed it, from my recollection.
The Mathew Sheppard case, which turned out to not be about ‘hate’ after all.
neo-neocon: Because the reason for the crime is an element of hate crimes, criticism of the prosecution of hate crimes often tends to rest on the idea that hate crimes “punish thoughts, not behaviors.
When the KKK beat up an African American, it wasn’t just a simple assault. It was an attack on the black community. That’s why hate crime laws exist.
As for the suspects arrested in Chicago, if they attacked a person because of their white race or disability, it is also an attack on the white and disabled communities.
Except look at the most notorious case, the 1998 Byrd murder in Jasper, Texas. (not the KKK, but it was white supremacists) George Bush was criticized for not supporting a Hate Crimes law at the time (although one was subsequently passed in 2001)
But in fact, of the 3 men who committed that crime, one was executed, one is still on death row awaiting execution, and the third was given a life sentence.
Critics said – “You didn’t charge them with a hate crime!!!”
Texas said – “look, we gave them the death penalty!”
Critics said – “Not good enough! We want more!!!”
(btw, in multiple perp prosecutions, the one who turns states evidence will always get a little bit lighter sentence than the others. That’s just they way it works, for the purpose of encouraging other perps to turn states evidence in the future)
Tom Servo: Except look at the most notorious case
You ignored our case. When the KKK beat up an African American, it wasn’t just a simple assault. It was an attack on the black community. That’s why hate crime laws exist.
Hate crime laws don’t exist for spectacular murders that are going to get the maximum possible sentence anyway. They exist for the lesser crimes, where there is a wide range of possible sentences. They exist so that judges, in sentencing, are required to formally acknowledge and take into account that some crimes have many more victims than the immediate complainant. As Zachriel says, when someone is beaten up because he was rude to the wrong thug, he’s the only victim; but when someone is beaten up to send a message to an entire community, the entire community are victims, and that deserves a much harsher sentence. Or to repeat my favorite example, graffiti is usually a petty offense, and an appropriate sentence is to make the offender clean it up and apologize. But when the graffiti is a form of terrorism, a prison sentence is called for.
So, following that logic, the activities of soliciting and paying for violence at the Trump rallies, as exposed in the Project Veritas videos, are hate crimes because they are attacks on the US body politic?
O’Keefe Project Veritas video showing staff admitting Hillary Campaign staff paid for training the homeless, the elderly infirm and the handicapped to start violent fights at every Trump rally as part of a criminal organization of political terrorism.
https://www.youtube.com/watch?v=5IuJGHuIkzY
Valerie: So, following that logic, the activities of soliciting and paying for violence at the Trump rallies, as exposed in the Project Veritas videos, are hate crimes because they are attacks on the US body politic?
Showing up at a Trump rally in a Planned Parenthood t-shirt hoping to provoke a reaction is not a crime, much less a hate crime.
In any case, hate crimes are tailored more narrowly and based on historical schisms, such as race, gender, and disability. There has to what would otherwise be a crime, such as assault, along with evidence that the crime was motivated by animus against the protected group. Political positions are not typically protected. In most jurisdictions, for instance, a person can be fired for their political beliefs, for instance.
Showing up at a Trump rally in a Planned Parenthood t-shirt hoping to provoke a reaction is indeed not a crime, much less a hate crime. Showing up at a Trump rally in a Planned Parenthood t-shirt and starting a fight is a crime.
Milhouse: Showing up at a Trump rally in a Planned Parenthood t-shirt and starting a fight is a crime.
Yes, but the tactic was provoking fights not initiating them.
Basing the penalty for a criminal act, against another person, upon the victim’s race, religion, gender or sexual orientation is basic discrimination. Hitting a person over the head with a 2×4 should carry the same penalty whether the assailant hit the victim in order to steal his Rolex or simply because the the victim was a minority. The crime is the act, not the reason for the act. The reason why the “hate crime” category has been maintained, long after the days of the civil rights movement, is to maintain the illusion that minorities are special. If a Legislature wants to address “attacks” on a community, then they should draft specific laws to make such an attack a separate, specific criminal charge.
There are areas of criminal behavior where increased penalties are appropriate. These are in cases where you have a person who is helpless due to age or mental of physical condition. Increased penalties in these cases may serve as a deterrent and provide increased protection to those who can not defend themselves.
Mac45: Hitting a person over the head with a 2×4 should carry the same penalty whether the assailant hit the victim in order to steal his Rolex or simply because the the victim was a minority.
But hitting an African American for being black was historically an attack against the black community, a warning not to rise up against oppression. Such an attack is not simple assault.
Do you imagine that killing someone for pay should carry the same sentence as killing someone out of mercy? They’re both the same act, and yet for at least 250 years we have treated them as very different in sentencing.
No.
It’s reasonable to consider motive (e.g., race- or lifestyle-based hatred) in sentencing, however.
If hate crimes are ‘thought’ crimes – the most malignant and dangerous idea the left has foisted on the criminal justice system.
Eliminate the hate crime category. Leave it to the sentencing judge whether to maximize punishment if he/she determines the motivation for the crime(s) warrant it. It ought to make a difference in sentencing (only) whether a defendant stole a hammer to beat his wife or to fix his roof, just as it ought to make a difference in sentencing whether a defendant beat a victim because he was black/white/whatever instead of because the victim stole his girlfriend.
If you want to “leave it to sentencing judges”, then get rid of all sentencing factors and guidelines. They exist to give judges guidance, and, frankly, to compel judges who might themselves harbor the same sentiments as the criminal, to acknowledge the severity of such motivations, and that they deserve harsher sentences. Also, by making it a formal sentencing factor, hate crime laws actually protect the defendant by requiring the fact of his motivation to be determined by the jury, like any other issue of fact, rather than by the judge’s own prejudices.
A while back I did a series of posts at my site exploring whether or not so-called “hate speech” is protected by the Constitution and the First Amendment. My conclusion was (and remains) an emphatic “Yes”.
So if so-called “hate speech” is protected, being that it is speech (action) motivated by thought and emotion (hate), then it follows that the motivation itself is also protected. Put another way, it is legal to hate. It is not legal to commit crimes. The motivation is irrelevant.
While I can understand the emotional willingness to additionally punish crimes driven by hate — of race, gender, sexual orientation, mental or physical disability, or anything else — beyond what would normally be recommended or allowed for those crimes, as a Constitutional purist I can’t justify it.
And so I say, since the judge already has quite a bit of discretion when it comes to sentencing, he/she is perfectly within his/her authority to impose the legal maximum sentence for every charge which results in conviction, and to order those sentences served consecutively. In this case, the charges are serious enough (what with all the “aggravated” upgrades) and numerous enough that the offenders will very likely be behind bars for a very long time, “hate crime” or no “hate crime”.
Archer: So if so-called “hate speech” is protected …
It is.
Archer: The motivation is irrelevant.
Of course the motivation is relevant. The motive is found in the difference between, for instance, premeditated and unpremeditated homicide. If the KKK beats up an African American to “send a message”, that is a substantially different crime than simple assault.
The motivation for crimes has always been relevant in sentencing. Once the threshold question of whether a crime has been committed is answered in the affirmative, motivation becomes extremely relevant. You are free to hate anyone you like, so long as you don’t commit a crime. If you do, prepare to be punished as you deserve.
I wonder if having a Trump sticker on one’s car could be seen a evidence of hate, or at least implicit bias.
Even if it were evidence that the person hates someone (whom?), it would not be evidence that the crime was motivated by hatred. And that’s what’s required.