Hate Crime/Thought Crime
Larner, Jesse
ARTICLES Hate Crime/Thought Crime JESSE LARNER Let’s not make this easy. Early in the morning of March 3, 1992, after a long discussion of their racial resentments, John Ayers and Sean Riley...
...But the implications for the First Amendment were quite different...
...As to the nature of the physical crime, the extraordinary biasinduced mayhem that Finch described, the law certainly has an interest in considering the intensity of violence...
...The U.S...
...Hate crimes laws in the civil rights era maintained this focus...
...Convicted of felony murder, kidnapping, and aggravated robbery, he also pleabargained in the sentencing phase, agreeing never to appeal, never to speak to the press, and never to profit from his crime in exchange for not being put to death...
...any activity involving working...
...On October 6, 1998, Matthew Shepard, a twentyoneyearold gay man, met Aaron McKinney and Russell Henderson in the Fireside Lounge in Laramie, Wyoming...
...Charging these crimes differently arguably violates the Fourteenth Amendment, which is, after all, one of the most powerful responses to historical injustice that American society has ever devised...
...This law adds sexual orientation and gender identity as protected categories in federally defined hate crimes, allows the Department of Justice to aid in investigations and prosecutions of hate crimes if local authorities request assistance or if they are unable or unwilling to properly investigate and prosecute...
...Illustrating this point, Cristina Finch, of the Campaign for Human Rights, told me that vicious attacks on transsexuals have implications beyond the immediate crime...
...Well, we could outlaw war, too, at the stroke of a pen...
...He can be reached at larner@forgiveusourspins.com...
...A hate crime was a crime on the basis of the victim’s identity, rather than on the victim’s equality under the law...
...The price that Canadians have been willing to pay for an enforced and artificial sense of social harmony should be a warning to us...
...Todd Mitchell, a black teenager who had just seen the film Mississippi Burning, urged his companions to assault a white teenager with the words “There goes a white boy...
...It may be (in some jurisdictions it must certainly be) that police and prosecutors are not properly investigating or bringing seriousenough charges against those who target victims based on hatred of a minority race, ethnicity, religion, genderidentity, or sexual orientation...
...But the prosecutions were exemplary...
...Do the Matthew Shepard and James Byrd prosecutions uphold or detract from the argument for hate crimes laws...
...Is someone who targets old women for muggings in the belief that they will be easy to overpower really committing an ageor genderbased hate crime, or just a particularly repugnant ordinary crime...
...The motivational affect matters in hate crimes law only when it can contribute to establishing hate (and enhancing punishment...
...We should know better by now...
...The perpetrators] are trying to eradicate this person’s identity, to send a message: ‘Your kind is not wanted here...
...But the law does not have to take account of the attacker’s wishes or beliefs in sentencing—only of the level of violence employed...
...that...
...In the United States, hate crimes laws—laws that mandate extra penalties when specific types of animosity are a part of criminal motivation—originate in a challenge to the authority of the state itself, and date to Reconstruction, when Night Riders and unrepentant rebels terrorized freed blacks...
...Early in the morning of March 3, 1992, after a long discussion of their racial resentments, John Ayers and Sean Riley set out from their suburban neighborhood of Silver Spring, Maryland, looking for black people to attack...
...When it does the opposite, it is irrelevant...
...In the many cases in which motivation is ambiguous and would require some effort to establish in order to meet the statutory definition of a hate crime, prosecutors might look at a defendant’s associates, institutional affiliations, magazine subscriptions, or library records...
...Real life can be complicated...
...British Columbia Human Rights Code, Section 7(1...
...But like any other charge, it must be proven by more than repugnance for the accused...
...California was first, in 1978, with a law that recognized protected status in isolation from any protected activity...
...There is much that we can do, through individual, collective, and governmental action, to heal the wounds of an unjust and hateful past...
...While early state laws limited the types of crime for which prosecutors could request enhanced charges, there was a concurrent push to expand the categories of eligible crimes...
...JL is the author of Mount Rushmore: An Icon Reconsidered (Nation Books, 2002) and Forgive Us Our Spins: Michael Moore and the Future of the Left (Wiley and Sons, 2006...
...This is a broader version of Section 13 of the Canadian Human Rights Act (which, oddly, applies only to statements made over the telephone and the Internet...
...Paul LeGendre, of Human Rights First, told me that the defining feature of a hate crime is that it targets a characteristic that has historically defined a group subject to persecution and attack...
...Canada, where I grew 78 DISSENT SPRING 2010 HATE CRIME up, offers a very clear demonstration of how it does happen...
...Should Viktora’s black neighbor therefore have had to put up with an obvious threat to and disturbance of his peace, to which he was entitled as a citizen and as a human being...
...But even those who support the concept of hate crimes legislation might have problems with this definition...
...Yet Canada is heir to the same traditions of British common law and intellectual liberty that gave rise to our First Amendment...
...Sections 241 and 242, 18 United States Code, are directed against conspiracies to deprive blacks of their rights to freedom and equal protection of the law under the Thirteenth and Fourteenth Amendments...
...Paul (initials were used to protect the identity of the defendant, because Robert Viktora was a minor at the time...
...On appeal, the U.S...
...Supreme Court ruled for Viktora, finding that the St...
...was overtaken by Wisconsin v. Mitchell in 1993...
...It is these categories—and not the specific content of thought—that shade degrees of legal guilt...
...But perhaps having them embedded in the constitution tempts Canadian judges to emphasize order over freedom...
...In 1990, Viktora burned a small cross in front of the house of a black neighbor in his mostly white neighborhood of St...
...Paul...
...For this we do not need to speculate as to the motivating beliefs of criminals...
...He, too, was sentenced to two consecutive naturallife terms...
...A charge of “petty vandalism with intent to intimidate” is not so glamorous...
...all sentences to be served consecutively, a total of sixty years...
...But the absurdity is too evident: Rape is inherently a gendered crime...
...It enhanced penalties for crimes targeting individuals on the basis of race, color, religion, or national origin, but only if the SPRING 2010 DISSENT 75 HATE CRIME crimes occurred in the context of the victims’ engagement in six specified protected categories of activity...
...These two horrifying cases did much to bring hate crimes to public attention, and to communicate a sense of urgency about the need to use the law to fight hate...
...The Civil Rights Act of 1968 (18 USC 245), was passed in a time of surging violence against blacks seeking to exercise their constitutional rights, and against their white supporters...
...Does the hatred that motivated the crime—the thoughts that we can deduce were in Ayers’s head, the racial epithets that Riley spoke—make Ayers’s repulsive actions worse than they would be in the absence of bigotry...
...The wish that a hated group would disappear is not illegal, nor—short of violence or incitement—is expressing it...
...The law was named for the victims of two highprofile crimes...
...The crime properly is found in Nazi acts, not Nazi beliefs, nor even the expression of such beliefs...
...This is a problem that can be solved without recourse to criminalizing a wish: Insist that crimes be charged consistently and without bias...
...3. “Parliament’s objective of preventing the harm caused by hate propaganda is of sufficient importance to warrant overriding a constitutional freedom...
...The 1994 federal Violent Crime Control and Law Enforcement Act mandated that U.S...
...it was a holistic assessment of the actual danger they represented).1 Justice was served for both Matthew Shepard and James Byrd, even though the law was not mandated to take account of the motivating beliefs of the perpetrators...
...The American Bill of Rights, by contrast, is bracingly unequivocal...
...This failure may well reflect a conscious or unconscious bias on the part of law enforcement...
...The Shepard family had to approve both pleabargains...
...2. I should note that the prosecution of rape as a war crime, when it is organized and encouraged as a weapon of ethnic intimidation (as it has been in Bosnia, Rwanda, Sudan, and many other places), is certainly a legitimate and necessary use of the law...
...McCrae found no refuge...
...reckless (acting in conscious disregard that conduct is likely to be prohibited...
...We can, of course, rightly condemn them as morally worse...
...This change is part of a shift in the concept of hate crimes that began when state laws began to address the issue...
...But legally worse, subject to enhanced punishment...
...We are living with them now...
...Henderson and McKinney’s girlfriends were convicted of interfering with the investigation, because they knew of the crime after the fact but did not report it...
...v. City of St...
...One would think, then, that the prosecutions of the Shepard and Byrd murderers under existing laws were inadequate...
...ARTICLES Hate Crime/Thought Crime JESSE LARNER Let’s not make this easy...
...I want to wipe you off the face of the earth.’” But absent specific acts of conspiracy, or conscious and active planning to target a community, Conyers’s larger charge is an innovative interpretation of criminal responsibility...
...Hate paired with violence, under hate crimes laws, counts for even more: zero plus one is more than one...
...Incitement is indeed a criminal act that can be charged separately from a physical crime...
...But if speech or thought produces extra liability when paired with an underlying violent crime, it is but a small step to unpairing them, preserving the criminal liability of hate alone...
...Skin color, religion, or ethnicity are therefore protected categories under hate crimes laws...
...It was endorsed by a long list of human rights, civil rights, and lawenforcement agencies, and officially opposed only by the conservative religious group Focus on the Family...
...and removes certain circumstances as necessary for establishing a hate crime in federal law...
...The three men beat Byrd, chained him to the truck, and dragged him to his death...
...It is charging a crime (that is, the theoretical future violent acts inspired by the real, immediate attack) before it has occurred...
...realizing they were being followed, the women began to run, and split up...
...Enhanced sentences for hate crimes vary by jurisdiction, but can be quite significant under both state and federal law...
...And it does consider it...
...For libertarians across the political spectrum, the idea that courts can weigh the thought, belief, or emotional affect behind an act is chilling...
...Is it to keep antisocial conduct in check, thus making it possible for human beings to live together and go about their business in reasonable comity, if not amity...
...Canadian Supreme Court, R. v. Keegstra, [1990] 3 S.C.R...
...By 1987, California legislation allowed prosecutors to consider hate crimes enhancement in charging any crime...
...They’re shot...
...Hate itself counts for nothing in American law...
...The issue of free speech has been finessed by the Canadian Supreme Court ruling in R. v. Keegstra, which held that “harmful expressive activity” damages individuals and communities sufficiently to be itself considered a criminal action, thereby explicitly erasing the distinction between hate speech and hate crime.3 This spirit has been reflected in many Canadian laws and institutions, most notably in the infamous federal and provincial Human Rights Tribunals, informal bodies outside of the official courts systems, which nevertheless enforce laws against exposing any group or individual to “hatred and contempt...
...Yet as worthwhile as the goal may be (preventing anticonstitutional subversion, catching terrorists, expressing society’s disgust for bias) the damage done by such measures is always greater than any benefit...
...It’s a disproportionate amount of violence for the injury that’s inflicted...
...Texas also had no hate crimes statute, and the NAACP and other activist groups gave thengovernor George W. Bush a very hard time because he refused to endorse one in the wake of the Byrd murder...
...Most statutes define a hate crime as occurring when a victim is targeted for belonging to a protected identity category...
...any statement...
...Viktora’s conviction was appealed on First Amendment grounds...
...Here’s the question before us...
...Section 242 specifically constrains law enforcement officials, prohibiting them from acting “under color of law” to target anyone on the basis of “being an alien, or by reason of his color, or race...
...Paul could simply have banned expressions conceived to threaten or intimidate, which are not protected speech, without regard for the content of such expressions...
...These tribunals can impose heavy fines, and even require defendants to publicly retract statements found to be offensive...
...Supporters of hate crimes laws often point out that the law already makes distinctions based on intent and state of mind...
...The law, said the majority opinion, cannot single out speech (including symbolic speech) that lawmakers or the public find objectionable...
...In a free society it should be axiomatic that only action, never thought, can be subject to punishment...
...The course suggested by R.A.V...
...McKinney and Henderson apparently pretended to be gay in order to gain Shepard’s trust...
...and as shaped by case law and the Supreme Court, American jurisprudence also recognizes such limits...
...The jury, and the court, found accordingly...
...And truth is no defense...
...King and Brewer, who both had longstanding ties to white supremacist groups, received the death penalty...
...McKinney’s case went to trial...
...Perhaps that is why it makes us feel better...
...It is a leap from a specific attack to a generalized accusation of terrorism with no necessary evidentiary link and with no specific individuals as objects of incitement or participants in conspiracy, nor specific individuals victimized by incitement or conspiracy...
...Ayers was sentenced to ten years for assault with intent to maim, thirty years for kidnapping, ten years for committing a racially motivated crime against McCrae, and ten years for conspiracy to commit a racially motivated crime against Guillory...
...Although Wyoming had no hate crimes statute, Henderson only avoided being charged with a capital crime because he pleabargained for two consecutive naturallife terms, agreeing to testify against McKinney, who led the attack...
...defendants’ costs are not, a model for censorshipbybankruptcy...
...But the legitimacy of the law rests, among other things, on its application to the specific case...
...The bill passed 68 to 29 in the Senate, 281 to 146 in the House...
...The question touches on two very different 74 DISSENT SPRING 2010 ideas about the purpose of the criminal law...
...Berry will be in prison for the rest of his natural life...
...and purposeful (when a perpetrator’s actions demonstrate the desire or intention to break the law...
...Rapists certainly do almost universally target a particular gender...
...California’s protected categories, evoking those of the early federal hate crimes statutes, were race, religion, color, and national origin...
...The display would have to be in the context of a reasonably perceived physical threat, beyond the mere desire to cause offense...
...But Bush was vindicated by the criminal justice system...
...Just four months earlier, James Byrd Jr., a black man, was walking home along a road in Jasper, Texas...
...SPRING 2010 DISSENT 79...
...How does one determine the beliefs of an attacker, anyway...
...Hate Crimes Prevention Act...
...If we are not concerned with policing a fraught relationship with the past, and if we view thought as outside the purview of law or any other authority, we are yet able to judge, punish, and prevent acts that cause harm...
...The first federal hate crimes laws were promulgated in 1870...
...In a similar way, it is ironic that many of the advocacy groups that consult on hate crimes laws have to argue that genderasaprotectedcategory should not mean that rape can be prosecuted as a hate crime...
...Fire or indict police, prosecutors, and judges who do not do their duty...
...Threats are against the law...
...It is this kind of expansion of the concept of conspiracy that has led to some of our most illconceived adventures in the application of the law, from the Alien and Sedition Acts to the Palmer Raids, from the McCarranWalter Act to warrantless wiretaps...
...In practice But don’t we want to outlaw hate...
...But the criminal law applies to individuals, not to the past behavior of dominant groups...
...One result of this might actually be a reduction in such crimes...
...Does the state have a legitimate interest in what Ayers was thinking when he brutalized his victim...
...Guillory escaped when she ran to the home of a friend, who protected her...
...On the face of it, why not...
...76 DISSENT SPRING 2010 HATE CRIME Mitchell’s conviction on enhanced hatecrimes charges, under a statute that criminalized bigoted speech leading to violence, was overturned by the Wisconsin Supreme Court as violating the First Amendment...
...On October 28, 2009, President Barack Obama signed the Matthew Shepard and James Byrd Jr...
...4. “A person must not publish, issue or display...
...the lawmakers of the City of St...
...These were responses to the reality that there are many people who despise our constitutional order—and among the people whose lives were touched by these undertakings, there were undoubtedly some who could have and would have done it harm...
...But that is a different phenomenon than what we usually mean when we talk about the crime of rape...
...and traveling...
...This issue was the focus of a 1992 Supreme Court decision, R.A.V...
...Apparently the jury concluded that Berry’s lack of white supremacist associations made him less of a future danger to society, and future danger is a requirement under Texas’s capital punishment law (in other words, it was not their thoughts that counted against King and Brewer...
...See “Slope, slippery...
...Why are hate crimes different...
...sentencing guidelines raise the offense level for the underlying crime by three levels when the victim is targeted on the basis of a protected identity category...
...Three white men in a pickup truck—John William King, Lawrence Brewer, and Shawn Allen Berry—offered him a ride...
...Broadly, these categories embraced any pursuit provided, required, or supported by government...
...As Laramie prosecutor Cal Rerucha told potential jurors in the Matthew Shepard case, “Whether black or white, rich or poor, Catholic or Protestant, whether we have power or no power, whether we are straight or whether we are gay, we are equal because the Wyoming constitution tells us we are equal...
...Violence counts for a lot...
...Like the neutrino, hate has no mass, but it changes things...
...go get him...
...This is something qualitatively new in federal jurisdiction...
...In 1990 the Canadian constitution was still being substantially shaped by decisions such as Keegstra—the modern constitution dates only to 1982, and most precedents under the former constitution, the British North America Act, were abandoned at that time...
...social or political affiliation are not...
...Yet if the underlying crime—the act itself—must be accepted as the full basis for prosecution of rape, why should it not be sufficient in the case of other crimes that target identity?2 There are, it is true, historical burdens...
...is likely [emphasis added] to expose a person or a group or class of persons to hatred or contempt...
...Or is it to make people better—to make society better...
...Note, however, that if we take the First Amendment seriously, there ought to be some sort of standard for a finding of intimidation...
...Shepard was discovered the next morning by a bicyclist, who thought at first that he was a scarecrow...
...Existing contentneutral intimidation laws could also provide a basis for punishment of what are now considered hate crimes against property—painting swastikas on a synagogue, for example—without resorting to the concept of a hate crime...
...Paul statute was overly broad...
...At present all of the model guides for hate crimes laws require an “underlying” crime—there is no suggestion that speech or thought alone should create legal liability...
...A selfconfident, mature democracy that trusts its own capacity for public debate can afford to leave the policing of mind and tongue to the North Koreans...
...We need only to recognize and appropriately punish their actual crimes...
...They came upon two black women walking along Georgia Avenue...
...The court did not do this...
...A hate crime charge is, after all, a mark of status in the social circles in which the perpetrators of such crimes seek to rise and, in their own minds, a badge of political martyrdom...
...Subsequent laws in other states expanded these categories to include things such as age, marital status, and membership in certain types of organizations...
...These kinds of considerations are distinct, however, from the motivating idea or emotion...
...Ayers’s death threat can certainly be counted as part of his physical crime...
...They’re mutilated...
...They’re stabbed...
...Wouldn’t we be a better society if we did...
...And, sadly, to the Canadians...
...While it is hard to make generalizations about the law, when legal culpability is tied to a perpetrator’s intention and awareness of wrongdoing, the modern interpretation of SPRING 2010 DISSENT 77 HATE CRIME mens rea recognizes four levels of such awareness: negligent (conduct that does not meet a normative standard...
...Plaintiffs’ costs are borne by the public...
...Guillory testified at trial that Riley yelled repeatedly, “I’m going to kill you, you black bitch...
...Particularly vicious murders and assaults (those that involve, for example, torture, multiple victims, child victims, or sex crimes) are more heavily punished than other murders and assaults...
...Racial animus and racial epithets, however, are not in themselves illegal, and it was Riley, not Ayers, who expressed them...
...Hate crimes laws are one approach to a real problem, but there are many ways that the law can respond to hate that manifests as violence without attempting to regulate opinion...
...Ayers dragged her to a nearby woods, where he savagely beat her and told her that he was going to kill her...
...But they differ from modern hate crimes legislation in their primary focus on the deprivation of constitutional rights, rather than on the identity of the victim...
...Punishing a bigot for hate, in historically determined categories, creates a scapegoat for our society’s collective historical crimes...
...As many legal scholars have pointed out, such investigations would raise serious First Amendment issues...
...Make no mistake: hate crimes laws do set us up for hate speech laws...
...He thereby violated a 1982 city ordinance that banned expressions of bias, specifically mentioning cross burning and display of the swastika...
...Supreme Court might have found, consistent with R.A.V., that the law can punish speech when there is a direct link between speech and action but must refrain from prohibiting particular subjects of speech (as with incitement or conspiracy statutes, which weigh the results of speech but are neutral as to its content...
...Spend the money currently allocated to enhanced hate crimes prosecutions on rigorous statistical analyses of investigations, charges, and sentences in problematic jurisdictions...
...As indeed they were...
...Hate crimes are also highly political, offering many temptations to ambitious prosecutors, who may feel intense popular pressure to charge (or not charge) a particular crime as a hate crime...
...The Canadian Charter of Rights and Freedoms declares that speech is protected “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society...
...Is the crime less serious than it would be if the attacker targeted a Mormon or a Hmong...
...Instead, it upheld Wisconsin’s claim to a compelling interest in the punishment specifically of bigoted speech when it is linked to action...
...Attacks on blacks were seen as a conspiracy against the Constitution...
...Civil rights groups that support hate crimes laws generally defend them with the argument given by House Judiciary Committee Chairman John Conyers: “These crimes constitute an assault not against the victim, but against our communities and against the very foundation of Democracy...
...It would be theoretically possible to convict a journalist for writing about the Armenian genocide if a Turkish complainant took offense.4 The institutions of a free country do not operate like this...
...Riley chased Myrtle Guillory, and Ayers chased Johnnie Mae McCrae...
...1. One does not have to support the death penalty to believe that the Shepard and Byrd murderers deserved the maximum available punishment in law...
...Gregory Reddick was beaten into a coma that lasted four days...
...Intent makes the difference between negligence and murder, and a husband who kills his wife in a fit of rage is charged differently than a husband who carefully plans to murder his wife for her life insurance...
...Vermont’s hate crimes law doubles the maximum prison term for violent crime if bias is involved...
...They offered him a ride, and HATE CRIME took him to an isolated area, where they robbed him, beat him, tied him to a fence in freezing weather, and left him to die...
...The effect on Mitchell’s case was the same as that of an incitement conviction might have been...
...Wisconsin’s can add five years to a sentence...
...The 2009 Hate Crimes Prevention Act removes these protected categories, previously required to define hate crime in federal law...
...It doesn’t matter if the motivation is actually hate...
...Simple display of a swastika probably should not meet that standard...
...Couldn’t happen here...
...The viciousness of an attack on a transsexual may indeed be the perpetrator’s response to the victim’s gender identity, a response expressing the desire that all transsexuals be dead...
...He died five days later in the hospital at Fort Collins, Colorado...
...knowing (when a perpetrator knows that the conduct is illegal...
...The underlying criminal act and the basis for calling it a hate crime are the same...
...Suppose a victim is selected for a brutal assault because he or she is a schoolteacher, a union member, a communist, a Republican...
Vol. 57 • March 2010 • No. 2
