My views on 'hate crime' as an enhancing status in sentencing.

First a definition of hate crime. http://legal-dictionary.thefreedictionary.com/Hate+Crime. Here is the SCOTUS decision in Wisconsin v. Mitchell permitting the use of such status to enhance a sentence https://www.law.cornell.edu/supct/html/92-515.ZO.html

Note that there is no crime in hating or expressing hatred. You can do either as much as you please without any legal penalty attached. It is an underlying crime that is being punished. It is being punished more severely because a specific intent is established behind the execution of the crime.

a quote from Mitchell sans the citations embedded , "Traditionally, sentencing judges have considered a wide variety of factors in addition to evidence bearing on guilt in determining what sentence to impose on a convicted defendant... The defendant's motive for committing the offense is one important factor. 'Motives are most relevant when the trial judge sets the defendant's sentence, and it is not uncommon for a defendant to receive a minimum sentence because he was acting with good motives, or a rather high sentence because of his bad motives'

Now to my justification of this 'enhancement ' Hate crime status is not about enforcing politically correctness or requiring politically correct thoughts or statements. Its about understanding a particularly onus and unique danger of tolerating hate crimes in our communities.

Those same epitaphs and slurs and statements protected as free speech under countless circumstances, and now being used as evidence of motive, mental state and intent, have historically been essential elements in communicating a threat, and to terrorize minorities and thus fracture the public trust and order.

I am not offended by those slurs said in the commission of series of crimes. No, I am scared shitless by them. Public Trust is by definition already corroded if we are dealing with a minority with a history of systematic discrimination at the hands of all of the institutions of government and power. Each and every episode of 'hate crime' is nothing but battery acid poured into the fragile vessel that is a democratic society so dependent on something other than despotic authoritarian control, to maintain order. Maybe the best argument in favor of an aggravated hate crime status, is that we simply cannot afford not to have it if we are to have even a prayer of a chance of convincing the minority communities that the majority gives a **** in the face of massive, pervasive and long standing evidence suggesting that the majority does not, did not and will not. If we can't convince them to remain invested in the justice system as responsive to their fears, and threats, we have a very big problem.

this also means that I think we should always oblige the state prove an intent to harm, due to bias and animus. The state has to connect the dots legitimize this practice. I want this to remain a crime with specific mental state, motive or intent, I want the prosecutor to have to prove that likely group animus existed before what went down at the crime scene, that means using facebook quotes, KKK membership, witness statements etc. I don't want this to be a cakewalk because we will lose the legitimacy of what we are claiming.

 

One problem is what can be used to constitute evidence of intent. For example, suppose an individual is a member of the KKK and they hit a black man. Well very likely that's automatically going to be prosecuted as a "hate crime", even though there's no specific evidence that the reason the black man was hit had to do with him being black. Or a business owner who wrote that he believes African Americans are not dependable workers. Well guess what happens when he fires one of his employees who happens to be black. His words will be used against him, and he will very likely be found guilty of discrimination based on his words, even though having to fire employees of all different backgrounds may be something almost inevitable in the normal course of running a business.

So you see, these laws basically end up criminalizing all sorts of things that were not actually written into the law, because those things can end up constituting burden of evidence. Because obviously you can't read someone's mind to actually determine what the real intent was.

More common, when people get in a fight, one of the people might say a racial slur, even though the fight actually had nothing to do with the race of the other person. Then there are potential hate crime enhancements. This just doesn't make much sense.

 

Reread the post. it sure has nothing to do with a civil law or tort claim for discrimination in employment. This is not about someone spouting off a slur in a fight either because the state needs more than that, to succeed. You can't, on one hand condemn the lack of prior pattern of conduct in a legal showing of motive, " it was just a spur of the moment impulsive fighting words kind of thing", and then condemn the state for looking backward to find the evidence of prior bias and animus inherent in a search for the motive . This part of the investigation and evidence is their effort to prove the motive was far more than fighting words, that you are also effectively undermining, by saying that prior conduct and statements cannot used to prove a motive.

If the state wants to assert the motive was greed or jealousy, then it gets to look back to find supportive evidence in statements and behavior to present to the jury or sentencing judge. The remedy for your concerns, is that there is an advocate for the defendant sitting in the courtroom, to show that there was another possible motive, and present evidence accordingly. The defense counsel is not muzzled in this process.http://www.criminaldefenselawyer.com/resources/how-prosecutors-prove-hate-crimes.html

"To secure a conviction for a hate crime, the prosecutor must convince the judge or jury that the defendant committed the underlying criminal act (such as assault or vandalism), and did so with the requisite intent. Not every crime committed against a racial minority or a person who is gay is a hate crime. In order to convict a defendant of a hate crime, the prosecutor must prove beyond a reasonable doubt that the defendant committed the crime because of the victim’s race or sexual orientation or for some other prohibited reason. Proving that the defendant acted with hate crime intent can be challenging, unless the defendant admits (to police or others) that the crime was motivated by bias.

Evidence of Bias
Aside from defendant’s own statements, relevant evidence of bias might include:

• defendant’s membership in a group that espouses hatred for certain groups (such as a black separatist group or an online chat group that opposes homosexuality)
• defendant’s possession of literature or symbols associated with bias, such as Nazi memorabilia or anti-Semitic texts
• defendant’s own writings, graffiti, or tattoos
• the use of biased slurs or graffiti during or at the site of the crime
• the date of the incident, if it coincides with a significant holiday or anniversary, and
• other hate crimes committed by defendant.

With defense counsel on the other side, muddying these waters, its likely to take more than one or two coincidental facts to make that 'beyond a reasonable doubt' standard for the motive stick.

 

No they don't. Neither the judge nor prosecutor will punished if they allow this type of "evidence" to be used against the defendant.

So you want to require a much much lower burden of evidence if it is known the defendant believes something you don't like.

 

I did not post this to play juvenile games, and I promise treat your replies with respect. Now I will refer you to paragraphs 4-6 of my opening post to see why I think this is an important and justifiable enhancement to add to the law. Please do not minimize, dismiss or distort my view of this argument with a trite cliché. I did not use the words, 'I don't like...' in my post because they do not reflect my reasons at all. .

 

Isn't murder, murder?

 

There are lots of crimes that basically describe unlawful killing of people or homicide. Keep in mind that the distinctions described her are made in state statutes, so they are not consistent and uniform throughout the country. There is involuntary manslaughter, voluntary manslaughter, both usually without a finding of malice. Murder is associated with a finding of malicious intent. Those crimes are subdivided by 'degree'. The difference between first and second degree normally involves the amount of premeditation or the existence/ lack of existence of aggravating circumstances. Here is a common list of aggravating factors that will call for enhanced sentencing in a murder trial on American soil.
.

• Premeditation
• Poisoning
• Murder of a child
• Murder of a police officer,[47][48] judge, firefighter or witness to a crime[49]
• Murder of a pregnant woman[50]
• Crime committed for pay or other reward, such as contract killing[51]
• Exceptional brutality or cruelty
• Methods which are dangerous to the public,[52] e.g. explosion, arson, shooting in a crowd etc.[53]
• Murder for a political cause[47][54]
• Murder committed in order to conceal another crime or facilitate its commission.[55]
• Hate crimes, which occur when a perpetrator targets a victim because of his or her perceived membership in a certain social group.

Note how many already involve a finding of motive or intent. What the convicted perpetrator was thinking and what his motive is has long been part of the process in sentencing. Judges and juries have been determining the mindset and motive behind a crime for centuries to help them decide the right charge and punishment should be. What a defendant said or did, or past patterns of conduct have forever been explored to decide motive and mental state before sentencing. We have always wanted to ascertain the 'why'.

 

Why does this matter? Someone has taken someones life plain and simple. Why should it be more serious just because someone killed
someone because they hated them and why should the penalty be more severe?

 

I am not playing this game long. If you are an intelligent poster you will read and discuss the OP because that is where I discussed the why. Read the post and if something is not clear, quote the part that is not, and I will explain it. I will not respond to stupid questions that ignore the obvious text in the OP as though it does not exist. I wrote it so that I would be addressing posters who already knew the basics of my views. If this discussion becomes pointless as the last....

 

I'd be kind of scared if anyone attacked a random person in public for no reason, or several people in multiple incidents. How is that different?

Does someone have more entitlement to feel scared because they were attacked for being in a specific group than if they were attacked for being a human being?
No, I don't think so. So we can see this is all silliness.

 

I refer you to paragraphs 5 and 6 of my OP.

 

You're talking about hate crime here?

I just can't see what this has to do with hate crime laws.

What about the danger of tolerating ANY crime in our communities? And how do hate crime laws make hate crimes less tolerable?

Haven't epitaphs, slurs and statements always been "used as evidence of motive, mental state and intent?" Wouldn't they still be used to this day even if hate crime laws didn't exist?

Aren't you just stating the obvious here? How is this relevant to hate crime laws?

Why more so than crime in general? By using the term "hate crime" it includes many individual crimes, each motivated by hate. So punching someone because they are black - this being an "episode" of hate crime - Is that really a larger dose of "battery acid poured into the fragile vessel that is a democratic society" than the murder of a man killed by the husband of the women he was sleeping with?

So hate crime laws are purely symbolic? As a symbol to minorities that the government cares about them? At this point I have to assume this, because what you have said above is the only benefit of hate crime laws which you outline. Also, convincing the minority communities that the majority gives a **** about what exactly?

 

Oh crap! extensive reply lost right before pressing 'post' must go to work. Will try again later.

 

I'll hold you to that man!

 

See above.

 

Certain social groups? So it does not include a white person being murdered by a black supremacist simply because they are white?

 

Why is murdering a pregnant woman extra-bad? I mean it's just a fetus.

 

If you read the statutes they are written the same way anti-discrimination laws are written. I will give you an example. Here is the federal statute. https://www.law.cornell.edu/uscode/text/18/249

"Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—

So in this case...

Social group = religion
Social group =national origin
Social group = race

here is the relevantCalifornia statute http://codes.findlaw.com/ca/penal-code/pen-sect-422-55.html

"
For purposes of this title, and for purposes of all other state law unless an explicit provision of law or the context clearly requires a different meaning, the following shall apply:

(a) “Hate crime” means a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim:

(1) Disability.

(2) Gender.

(3) Nationality.

(4) Race or ethnicity.

(5) Religion.

(6) Sexual orientation.

(7) Association with a person or group with one or more of these actual or perceived characteristics.

(b) “Hate crime” includes, but is not limited to, a violation of Section 422.6 .

So in this case...

Social group = Disability
Social group = Sexual orientation
etc.

So yes white people, Christian people, straight people, and men are covered under the language in these statutes.

 

It's socially inequitable that minorities should have more rights than the wider public in general.

 

First this are not just aggravating factors for a murder charge, it could also apply to a harassment charge, an assault charge instead. Remember these are general categories listed by Wiki which may or may not be in any specific statute depending on what the state legislature or city council decided was an appropriate aggravating factor. Not sure how prevalent that is overall,or whether it tends to be a 'red' or 'purple' state thing. Don't know the answer.

 

For the most part, these don't. Read the language of the statutes. It makes it an aggravating factor to target someone based on race. It does not say 'black people' It makes it an aggravating factor to target someone based on sexual orientation. It does not say gay people. It makes it an aggravating factor to target someone based on national origin. It does not list some, but not others.

 

In the latter case, supposing the archetypal alpha male were to be spontaneously propositioned by a homosexual, and in a moment of anger at the insult landed a punch on the offender, whereas the reverse of the scenario would be that if the proposition hadn't have been made, then the incident wouldn't have happened? Why should the 'offender' be punished at all, never mind punitively.

 

Are you are asking me whether someone should be charged with assault for punching someone who 'propositioned them'? Normally, we do not attack people who ask us out on a date or ask us for sex. We say 'no thanks' or 'hell no', or' not if you were the last slug on the planet'. Most communities frown on physical violence as a communication method

 

No, I was asking you if the homosexual provoked the assailant, whereas if he hadn't propositioned, then the incident wouldn't have happened? I thought I made that perfectly clear.