In light of the 10th anniversary of Matthew Shepard’s death, let’s have a discussion about one of the more positive aspects of his death: hate crime legislation.

Now, I don’t think anyone is going to argue that there shouldn’t be special/more punishment for someone who seeks out an individual based on demographic considerations and attacks that person with the intention of terrorizing that entire demographic—whether it be gays, blacks, or white men between the ages of 18 and 30 in America today (all tough demographics to be, for sure). This is the definition of a hate crime (please feel free to argue this point).

Let me put my starting position simply: hate criminals are terrorists, and should be tried as such. Hate crime laws distract from and muddle this fact by trying to create a new class of crime. Like I said, this is terrorism, plain and simple.

Maybe it’s helpful to work with the definition of hate crime as you’ve provided it, Art, rather than getting into a semantic debate about meanings and ending up skipping the substantive pros-and-cons argument? I’d say your definition is pretty spot on.

As a means of spurring the discussion based on what you’ve already said: let me pose some questions…

A) Should someone who commits a hate crime as you’ve defined it face tougher penalties as a “terrorist” than someone who commits the same physical act (murder, assault, etc.) with no demographic bias?

B) Is a hate crime, as Art has defined and discussed it, somehow “worse” than a similar crime with no hate bias, or just separately but equally terrible? Does legislation on hate crimes provide de jure or de facto special treatment for minority demographics?

C) Do we think there’s some actual benefit in enacting tougher penalties, either through the creation of hate crimes laws, or moving such crimes into the terrorism category? If there are realized benefits, and if you answered yes to the second part of Question B above… which outweighs the other?

There are some fascinating positions to take on this from both a legal and a social perspective… so come on folks, chime in.

I think hate crime laws do not go far enough. We should have laws that increase the penalties for doing anything with a hateful intent. For instance, if I shop at Barnes and Noble because I hate Amazon and want it to fail, I should be forced to pay 20% over the sticker price at BN. Also if I sleep with Esther’s friend because I hate Esther it should be legislated that the sex must be bad. This will make it much less likely that I will hate anyone or anything!

You may object and say that it is impossible to determine whether hate was a factor in any of these but in fact I disagree. But don’t rely on me! Our judicial system does a perfect and flawless job of determining the precise mindset of everyone involved in every crime and I don’t see why we can’t use this prowess to judge citizens engaged in legal activities too.

Finally I should say that we ought to take this in the other direction and reward people who commit crimes with loving intentions. For instance if I give my wife a black eye because I love her my prison term should be reduced or even completely waived, and I should get custody of the kids because I am willing to risk my freedom for the sake of someone else’s benefit! That sounds like charity to me. Similarly, if I embezzle several million dollars to test my company’s financial security, I should be allowed to keep the money; after all I exposed a weakness that some rogue may have tried to exploit later! Close call there.

Post updated by sam on 2008/10/15 01:02

Art, consider your scheme. Let’s say I hate Republicans. Am I guilty of terrorism if, for the purposes of terrorizing members of that party, I get together with a prominent male Republican Senator for a public bathroom sodomy party?

Post updated by sam on 2008/10/15 01:03

I had hoped to help moderate a sort of academic debate on this issue, because I figure my own opinions probably go without saying, but…

Sam, comparing the terrorizing of an entire class of people through violent crime to refusing to shop with a particular company or engaging in vindictive sex with your partner’s friend is not only ridiculous (in a way that completely undermines the point I assume you’re trying to make) – it’s flatly offensive. Engaging in consensual “bathroom sodomy with a prominent male Republican Senator” isn’t even in the same ballpark as slaughtering someone because they have a different skin color, or because you have reason to believe they have a different sexual preference from your own. Don’t even pretend like that argument makes sense.

I would love to hear your thoughts on this issue… but, with due respect to our difference of opinion, don’t be a jackass in the process, please.

I’m not being a jackass. I think that the best way to explode the notion that we ought to criminalize thought is to take the idea and run with it.

This is neither unprecedented nor unreasonable. In fact, it falls directly in line with my usual rule of thumb for evaluating any expansion of government power or legal influence: if I can think of a way to abuse the power in thirty seconds or less, it’s probably a poor plan.

Please allow me to get Socratic as I enumerate some of my objections to hate crime legislation.

(i) Necessary ambiguity of the extent of hate crime penalty applicability

Suppose I hate Asians for my own inscrutable reasons. Am I guilty of a hate crime if I punch an Asian man in the face? If key his car? Should I be eligible for hate crime penalties if I libel Asians? Suppose I hate Asians, and seek employment as an accountant at a firm owned by the Japanese for the sole purpose of embezzling as much as I possibly can – because I hate Asians. Hate crime?

(ii) Lack of effect on incidence of violent crimes motivated by group hatred

Suppose I intend to kill a black man because I hate black people. Already willing to spend decades in prison, am I any less likely to kill that man if my jail time might be extended by ten years because I am motivated by hate? If not, what is the benefit of adding the penalty?

(iii) Infeasibility of ordering criminal motivations

Is it any worse to kill a man because I hate the color of his skin than to kill him because he cut me off in traffic? Should we pass laws that make killing a man for sleeping with your wife (or husband) more punishable than killing the same man for a loaf of bread? Than killing him for his car? Than killing him because you picked his name out of a phone book? How shall we order all of these motivations into a hierarchy?

(iv) Motivational inscrutability

Suppose I am a Tongan and I kill a white man. How is a court to know whether I was motivated by hate? Certainly they could talk to my friends, or read my diary, and so on; but unless at the time of killing the man I am recorded screaming: “Die, die, I am killing you because you are white and I hate white people” it is difficult for me to imagine a scenario where it could be proved that my motivation for killing the white man was the result of my hatred of white people.

Take this idea from another direction. Suppose I am Flemish and I have a deep and well-documented hatred of all the Walloons of Belgium. One particular night, in an American bar, a Walloon makes a pass at my girlfriend, and I kill him in a fit of jealous rage. When I killed him I was not at all interested in the fact that he was a Walloon – only that he was a scum-sucking-girlfriend-hitting-on-son-of-a-bitch. Is it an injustice, supposing this hate crime law is valid, that I am later convicted of a hate crime despite the fact that my murder was motivated only by jealousy? Is existing hatred enough to lead to my conviction even though my motivation was devoid of group-specific hatred?

Post updated by sam on 2008/10/15 16:18

There – was it so difficult to make a rational argument instead of a ridiculous one? :-)

First, though, let me say that responding to something you consider absurd with an even greater degree of absurdity? Not actually a very strong rhetorical technique. Just FYI.

Second, Hate Crimes legislation doesn’t seek to criminalize thought – it seeks to categorize criminal actions based on proven motive (and yes, there are people out there who have the expertise to determine motive in an overwhelming number of cases).

When a crime is committed as an act of terror against an entire group, it’s not the same thing as a crime committed because a particular person rubs you the wrong way. Neither is acceptable, and both should be thoroughly punished, but we are remiss as a society not to recognize the difference in our legal system – and yes, I would argue that one is worse than the other.

Other people should chime in, too… I’m interested in your thoughts.

Please respond to my scenarios more specifically. I’m not kidding.

I’m 100% behind Sam on this one. We’re in real trouble when we start altering the punishment for crimes based on what we think was going on in a person’s head.

I am Danny:

C.J.: Don’t you think that imposing additional penalties for hate motivated crimes is a powerful statement by society against intolerance?

DANNY: No. A crime’s a crime… one murder isn’t any better or worse than another.

C.J.: Boy was that the wrong answer.

DANNY: Punishing people for their beliefs is the beginning of the end… what’s more you agree with me.

I can’t respond to your specific concerns, Sam, without addressing the foundational misunderstanding you appear to have about what hate crimes legislation seeks to do, first. It isn’t about punishing people for hating – and it has never been about punishing people for hating. It’s about punishing people for using physical violence as an outlet for their hatred. Freedom of speech is, therefore, not at all impinged. The entire discussion goes nowhere until you understand that. Moreover, I’m not going to go through each detail you post and respond to it as many of your scenarios are redundant. I’ll respond to the thrust of your arguments in the hopes of keeping my remarks more concise.

Andy – I think you share some reasonable concerns with Sam, and (teehee) Danny. The one point I want to be really sure I’m clear about, though, is that hate crimes legislation unequivocally does not seek to punish people for their thoughts, or for sharing their thoughts in a non-violent way. It seeks to punish people for their actions.

Something else to think about is that we take motive into consideration all the time in determining how to punish people for their crimes. People plead out on insanity every day, for example. Sometimes people are let off because they killed someone in self-defense. The reason we have a judicial system in this country (aside from providing a check against the Executive and Legislative branch) is so that we have real human beings interpreting each individual case and determining how the law might apply. It isn’t as if we’re just going to start lynching everyone who some computer program determines has met an arbitrary threshold for hate.

Ultimately, and with slippery slope arguments set well aside (there’s quite a bit of literature out there on why the entire notion of a slippery slope is fallacious), it is not at all unreasonable for us as a society to say that it is specifically and particularly unacceptable to commit violent crimes out of hatred for a particular social group or class, and I believe we can make that statement without undercutting the unacceptability of violent crime in general.

Post updated by Adam on 2008/10/16 09:31