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.]