I made a comment on a recent post on the main page related to hate crimes legislation, and a few of you suggested I write a community post about it -- so here it is!
In my comment, I had suggested that, rather than focus on introducing hate crimes legislation, it might be more effective to use existing domestic anti-terrorism laws to prosecute crimes specifically aimed at oppressing minority groups. The code of Federal Regulations defines "terrorism" as "the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives” (28 C.F.R. Section 0.85(l) ). Prosecuting hate crimes as terrorist attacks would have several key advantages. To name a few:
- It requires NO NEW LAWS. We have far too many laws as it is, many of which are rarely, if ever, enforced. Focusing on enforcing existing laws is cheaper, more efficient, and less controversial.
- It's more politically feasible. Although liberals and conservatives disagree about many things, *no one* likes terrorists. And even though people may disagree about the most effective way to stop terrorism, the bottom line is that Americans like feeling safe on their own soil. Anti-terrorism laws are a MUCH easier political sell than hate crime laws. Particularly in a country in which all criminals have a right to a jury trial, it's important for people to believe in the laws our government is charged with enforcing.
- It's less susceptible to legitimate First Amendment concerns. Hate crimes legislation takes something that is already a crime and enhances the penalty if it can be shown that the criminal had a certain frame of mind. Although it is true that things like intent and knowledge affect criminal prosecution, hate crimes legislation adds a new dimension to the existing spectrum we have for mens rea (Latin for "guilty mind"). Namely: animus toward a particular class of people. The problem with this, as we have been made painfully aware through conservative media and blogs, is that it comes troublingly close to outlawing the animus itself. Although bigotry IS a moral wrong, and one we as a society ought to be constantly working to address, making bigotry itself a CRIME goes against some of the most basic things we, as a free society, ought to stand for.
Conversely, anti-terrorism laws have nothing to do with an individual's particular feelings about a given group. In fact, an individual terrorist may have conflicted feelings about what he or she is doing -- for instance, he or she may feel on some level that the action is wrong, but feel compelled by some higher purpose to do it. Anti-terrorism laws don't care about any of that. Anti-terrorism laws are designed to combat actions that are taken with the purpose of intimidating a government or society, and scaring it into behaving in a manner deemed appropriate by the terrorist group. Being a member of a terrorist group is not in and of itself punishable (for instance, it is not illegal to be a member of the KKK, an organization monitored by the government for terrorist activities -- see page 10 of this FBI report detailing a foiled KKK terrorist plot). But finding that illegal actions were designed to send a political message and achieve political ends through fear and intimidation doesn't depend on any individual's state of mind. It depends on the intent of the act itself. The intent of an act can be inferred from surrounding circumstances, such as the overall factual background of the attack, or a particular organization claiming responsibility for the terrorist acts. But simply showing that someone hated certain groups of people generally isn't enough -- that in and of itself does not demonstrate that the INTENT of the act was to coerce through intimidation. This has the disadvantage of making these crimes more difficult to prosecute, but it adds legitimacy to the law and greater protections for accused criminals, which I think is definitely something progressive communities should favor.
- Finally, I believe it would be more effective. Hate crimes legislation is one of those well-intentioned approaches that are ultimately ineffective and difficult to enforce properly. In many ways hate crimes legislation can come off as, in essence, an *extra* slap of the wrist from the court for, not just being the bad sort of person who would murder or beat someone, but being a hateful bigot on top of that. In some cases, maybe it will carry a heightened sentence, but this doesn't really do much for deterrence and doesn't even convey the intended message: there is something *particularly* wrong with using violence as a means to oppress a minority group. Using anti-terrorism laws, conversely, makes it clear that it isn't just murder plus; it's TERRORISM. That's a word with weight and meaning. That sends a message. And THAT, I believe, would have a greater deterrent effect. You aren't just a murderer; you're UN-AMERICAN. Your actions are a rejection of our free and open society. Certainly many in more bigoted communities -- whose members often consider themselves "patrios -- will feel the sting of that far more harshly than they would feel the sting of what they can easily pooh-pooh as illegitimate legislation brought about by liberal hand-wringing. That, in turn, deters them from terrorist actions. Not perfectly, of course, but it's one theory.
What do the rest of you think?
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Wow, that makes perfect sense. Now all we have to do is get the people in charge to equate America loving bigots with terrorists. Not that all people who commit hate crimes are die-hard America fans, but I think you understand what I mean. Not too many people will agree that homosexuals and trans people can be victims of terrorism, since we have this idea that only attacks against America count as terrorism. (Were any attacks against PP ever filed as terrorist attacks?)
But I do agree completely with what you said.
I'm conflicted. I think "terrorism" is overused, and that even racially or sexually motivated crimes are (in most cases) not done for the same reason terrorist ones are. I am sure there are plenty of exceptions however.
I personally have a problem with the sort of thoughtcrime element in hate crime legislation though, and this does seem preferable.
Sorry, but it's just inaccurate to say that hate crime laws punish 'thought crime.' When people are found guilty of hate crimes, it's not because they hated a person, but because they used violence against that person, a person whose social status is already compromised; the 'extra' punishment is not for the 'hate,' it's for targeting someone who is already disenfranchised. It's sort of similar to prosecuting child rapists-- they're punished more than people who rape an adult, not because of the thought crime of being sexually aroused by children, but because they committed violence against a member of a group of disadvantaged people.
That certainly could have been worded better, but I hope it makes sense.
No. If that were the case, the intent of the attacker would be irrelevant. It is not, it is the *central* element which turns an ordinary crime into a hate crime. If it were about protecting disadvantaged groups, the attacker's intent would be irrelevant - using your example, statutory rape is unconcerned with the victim's or the perpetrator's intent.
I think this is an absolutely brilliant idea. The role of the criminal law has never been to punish thoughts, but to punish actions and their effects.
The real wrong which hate crimes - over other sorts of crimes - perpetuate is fear in the targetted group; terrorism legislation makes this extra harm the difference between "hate crime" violence and ordinary violence; it is wrong because it effects, and is intended to effect, more people than the victim. The victim is no more hurt by a knife wielded by a KKK Nazi than one used by some thug in a backstreet.
I think the defining characteristic of a hate crime is when a person NOT of the targeted class would not have been attacked---that is, a man beaten up *because* he is gay would not have been attacked at all had he been straight.
"Hate crime" means declaring open season on some subgroup of humanity and putting them in more danger, or through more harassment, using one's bigotry as a justification to do so.
While it may be true that the victim is no more hurt by a knife wielded by a KKK Nazi than one used by some thug in a backstreet, he is hurt MUCH more by the KKK Nazi than a person not of the targeted class would be in the same encounter with the KKK Nazi; thus, the environment is made more hostile, more dangerous, for the targeted minority by the KKK Nazis of the world, than it is for the nonminority people.
Opposed. Here's why:
I am opposed to all hate crime legislation (I'm black by the way). I have absolutely no interest in what drives anyone to kill, rape, etc. I'm only interested in justice for those victimized.
I am opposed to the overuse of the term terrorism, particularly since it exempts the state which often uses so called "terroristic" tactics in order to maintain control. That evidence is well documented.
The fact of the matter is that the laws are already on the books. I could care less what members of the Klan think of me. They assault me they should be prosecuted. They burn something on my lawn, they ought to be prosecuted, They show up at my property armed, I ought to be let go for justifiable homicide.
A gay man or woman gets beat up by someone who doesn't like gays: NBO problem it's called felony assault. Prosecute and move along.
The way I see it, a hate crime is composed of two separate crimes. One is the physical crime against the individual victim and the other is a crime against a particular group. If a person is attacked specifically because of their gender, race, ethnicity, religion, sexuality, ability, etc., there is also an implicit threat against anyone belonging to that particular group. If someone burned a cross in your lawn, the police would probably treat it as an attempt to intimidate or threaten you, rather than simple vandalism. I think hate crime legislation falls along this same line of reasoning.
one could argue that fear is created even if someone is *not* specifically targeted. for instance, let's say a woman's house is robbed, and in the robbery, she is shot. the armed robber chose her house at random, because the lights were off and it looked like no one was home.
if i heard this in the news, this would create fear in me, in part because i'm a woman and i already feel more vulnerable to crime than many men i know. also, her neighbors would probably feel more afraid than the average citizen due to proximity.
Fear is created there, yes, but it isn't focused. Anyone living in a dwelling with standard locks and whatnot on it is the potential victim there. And in a standard mugging, anybody out in public is at risk.
In a gay-bashing crime, however, the fear created is only generated amongst the gay and lesbian community. In a rape, fear is only caused among women---what man hears of a woman being raped near his area and thinks "I better get someone to walk me to my car after dark; someone might be lurking in wait to attack me" and worries if his clothing is sending the wrong message?
It's not whether fear is created, but where fear is targeted.
Exactly
Sorry, I don't buy into the "group crime" theory here. The crime, in a free thinking democratic society is ALWAYS the act. In a democratic society, we do not have the government punish thought regardless as to how offensive it may be.
Even in Class action lawsuits all participants must show that they have been actually harmed by the actions of the individual, company,government agency, etc.) It is not enough to simply say that one could have been a victim.
I'm consistent in this point. I'm clear that certain KLAN activities are meant to intimidate more than the individual who's lawn is burnt, but still the issue is that in the case of a Cross burning a few crimes have been committed:
Arson, trespass, vandalism,etc. All of which can be charged and prosecuted REGARDLESS of the intent behind the crime. The Klansman can hate black people all day while serving consecutive sentences for the actual actions he (or she) committed.
"the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives"
Under this definition, it would seem that the vast majority of what we would consider hate crimes would not be considered terrorist activities. For example, one bigot follows a gay man home from a bar and beats him in an alley, simply because he's gay. We probably want to call that a hate crime. But how did the assailant do this 'in furtherance of political or social objectives'? He gets up on the stand, says he hates gays, beat the guy for being gay, but doesn't give a hoot about whether society allows gays--he just hates them.
I believe that hate crime legislation is something different. We are prosecuting based on their frame of mind--we are saying committing a crime out of hate is worse than committing one out of passion (in close to the same way it is worse to pre-meditate a crime). We are not calling criminals unAmerican, we are not claiming they are trying to control society, we are claiming they broke our laws, and for one of the worst reasons we can think of. In this respect I believe we need separate hate crime laws--anti-terrorism laws just aren't a real substitute.
It's not because they're committing crimes out of 'hate' rather than 'passion'-- Christ, hate is a form of passion, and nearly all crimes are committed out of hate. Hate crimes are about punishing someone for targeting a group of already disenfranchised people. We give child rapists longer sentences because children are especially vulnerable, not because it's icky to be a pedophile. Similarly, we give someone a longer sentence for attacking homosexuals, who are already disadvantaged in society and suffer more daily intimidation and harassment.
"We probably want to call that a hate crime. But how did the assailant do this 'in furtherance of political or social objectives'?"
Social objectives: he's punishing that particular gay person for existing, for being in public while gay, for inflicting himself on this guy's reality in even the slightest of fashions. He doesn't want "them" to exist, or to be happy, or to share the same public space as he does, and therefore he seeks to hurt them, scare them, destroy them. He violates their rights, deliberately and brutally, based on his disagreement that they are full human beings deserving of the same rights he claims for himself.
Well, it's an interesting idea, but I don't really think it's a replacement for hate-crimes legislation.
My first thought when reading this is that when people think of terrorists, they think of Al-Qaeda or the KKK, large, organized, highly funded and clearly politically/morally(in that they believe they are committing acts which are holy or necessary) groups.
What happens when we have a case like Angie Zapata? Her murder was not part of an international conspiracy to undermine transsexuals or GLBT community. Hatred and bigotry are not the same as political motivation, and certainly cases like that one don't usually come to mind with the word "terrorist." Can you prove that her murderer was trying to systematically and intentionally terrorize an entire community? Even if that ended up being the result? He didn't leave threatening messages to the community, or claim responsibility for the act publicly in order to send a message. I always thought he was just a completely evil guy who wanted her car and thought he could get away with killing her for it since that sort of crime is so seldom prosecuted.
So no, I don't really think the label of terrorism fits. When someone's intent is simply to kill someone they don't like, out of fear or greed or for whatever reason - it isn't really terrorism, even if it scares some people. There is a fundamentally different frame of mind in trying to send a message to a whole community. And of course, that happens to, and I WOULD like to see it prosecuted as terrorism when it genuinely is - but often, it isn't. And for those times, we still need hate-crime legislation.
And so... if the plane hijackers of 9/11 were not part of an international conspiracy network but acted alone, then their act would not be a terrorist act? I don't think that "membership of an organisation" is really a necessary definition of a terrorist. I think committing acts of terror is, regardles of whether you work alone, with some friends, in a lose network, as part of a government or a non-governmental organization. Murder is also murder regardless of whether you are a member of an organization planning murders or act alone.
Terrorism is not "being a member of an organisation that certain politicians (some of which are terrorists themselves) don't like" :) I'm sure that's not what you mean, but that's unfortunately how the word is used today. Let's focus on the acts regardless of political affiliations.
but the point of terrorism is the desire to send the message, to disrupt a system. No, an organized group is not required, and you hint at good points about which systems and groups and messages are allowed to be disrupted or not. but the message aspect is crucial to the definition.
"Can you prove that her murderer was trying to systematically and intentionally terrorize an entire community?"
But maybe in such cases we wouldn't be focusing on intent, we'd be focusing on the results, whether the result is to terrorize an entire community.
Just consider the chaos that would happen if society removed mens rea from the law.
That's not what I was saying, which is why I used the word 'focus' and not the phrase 'ignore everything but'.
I was responding to this comment:
"Can you prove that her murderer was trying to systematically and intentionally terrorize an entire community?"
And I meant it shouldn't be about whether the person intended to terrorize, but whether the result was that the person terrorized.
I think 'reckless' or 'knowing' should be the proper culpable mental state if I was creating hate crime legislation based on anti-terrorist legislation. Whether the perpetrator knew that the result would be to terrorize, or whether the perpetrator consciously disregarded the risk that the result would be to terrorize.
And I meant it shouldn't be about whether the person intended to terrorize, but whether the result was that the person terrorized.
I think 'reckless' or 'knowing' should be the proper culpable mental state if I was creating hate crime legislation based on anti-terrorist legislation. Whether the perpetrator knew that the result would be to terrorize, or whether the perpetrator consciously disregarded the risk that the result would be to terrorize.
So we shouldn't give intent weight, but we shouldn't disregard it.
Many crimes create fear and uncertainty, some may even terrorize people. But to say that a crime which terrifies people should therefore be classified as terrorism, removes mens rea. Further it gives over the legal system to a question of perception not to a question of fact.
Lets say there are two murders, both over money, in one case the media takes the story and convinces everyone that it was because the victim had trait x, making everyone with trait x fearful. In the other case, that it was because of money was plain from the start and there was no panic.
Now lets say the truth comes out, in your case the murder with the media attention should be punished more harshly because it caused more fear. The results were bigger. But that is unrelated to the persons intent, it is unrelated to the true facts of the case, it is only related to how the media interpreted a case.
At the same time, envision two hate crimes, one which gets media attention, the other which is completely ignored. If the broader public does not find out about the second hate crime, it would be difficult to spread a panic. In that case it would have to be punished less harshly, because there weren't the same effects on the larger community. But that would be a blatant injustice to the victim who would not receive the same justice, all because the media didn't think their story was telegenic enough.
Both of these hypothetical situations demonstrate the problems with placing emphasis on "results" to replace in some aspect the question of intent. In both cases the same crime occurred, for the same reason, but we'd be forced to punish one more harshly based on what? How the media reacts?
If a victim is forgotten or if their story is told on the national news they deserve the same justice. If we are to keep hate crimes as an aggravating circumstance then intent is the only proper way to address it. To do otherwise is to turn our legal system over to the capriciousness of the general public.
meant to italicize the second paragraph
Criminal law generally breaks mens rea ('guilty mind' or 'culpable mental state') into four categories:
Purposely
Knowingly
Recklessly
Negligently
So there was still a mens rea requirement in the hypothetical statute in my last comment.
But you are still suggesting that the element of hate crime as an aggravating circumstance, be an element of actus rea not mens rea. Which can then be held to the additional aggravating or mitigating circumstances of the level of intent.
But my hypothetical situations stand, so in the first case it wouldn't be a hate crime it would be a reckless hate crime, because the criminal should have known there was a good chance things could have gotten blown out of proportion.
In the second situation, there is no actus rea for a hate crime when no panic ensued. It would still be charged less severely because it was attempted. Not that the crime itself wasn't committed but it didn't terrorize a broader populace, removing actus rea, and continuing to give people less legal defense on the basis of media coverage.
What that does in essence is to give more legal protections based upon two things, minority status, and media coverage.
If the media coverage was the only cause of the terrorizing, not the perpetrator, then the prosecutor wouldn't be able to prove causation. Problem solved.
Except he would. The way people are terrorized is that they hear about the incident, no media coverage in a modern society the terror isn't likely to spread very far. The causation is quite clear, the criminal committed a crime, some factor in the crimes created a panic. Commission of the crime is easily considered reckless.
If you base the crime more on the result then the intent, hate crimes which fail to produce the result towards the larger population would at most be "attempted".
Go on, write a law which focuses on the actus rea of creating fear in a larger community as an element of proving hate crimes which does not result in either of the two hypothetical situations I posed to you. Which still includes prosecution of people for "recklessness" and "negligence". I do not believe it can be done.
The negligence one I'm particularly interested in hearing because I cannot fathom how you begin to put legal requirements for how criminals should act while committing crimes.
I would go into more detail about the intricacies of how such a statute would work if I thought you really didn't understand, but I feel like you are being deliberately obtuse.
I primarily agree. My only concern is the same as Dream's: the word "terrorism" has lost all meaning.
What you are referring to is ACTUAL terrorism: acts of violence that are not only directed towards the immediate victim, but uses the immediate victim as a "random" tool to further the objective of spreading terror in to a community.
This, "hate crimes"/terrorism, is different from other acts of violence because of the terror it is meant to spread. The victim is the community. The immediate victim is chosen arbitrarily. The message is that the victim could have been any one of you and might be in the future. This is terror, and that is what hate crimes do: their purpose is to spread fear in to certain communities (perhaps with the intention of preventing them from standing up for them selves).
The emphasis on the perpetrators "frame of mind" or "internal ideas" is stupid and violates a lot of legal principles (not to mention the impracticality of proving the perpetrators ideas). Of course, intent is relevant for a legal ruling - not just in hate crimes but in most crimes. But you ought to focus on the outcome and whether the outcome was intended.
If I cheat in taxes and was a racist at the same time (and maybe, I cheat doing my taxes for racist reasons), my bigotry should not affect the case. If I kill someone in a robbery, and happen to be have some prejudice against the ethnicity of the victim, but my crime didn't really have anything to do with that, then that should not be called a "hate crime". If I kill someone for the only reason that the person is black, homosexual et.al. in order to send a message to others of that group that they risk getting killed to - for example if they speak up - then my crime is not only that of the murder, but also that of spreading terror. Bigotry and "hate" (stupid word by the way. Wanting to oppress others does not necessarily involve the feeling of hate - it can be cold power reasons) have something to do with it, but they are not what makes this crime something different.
The reason that "hate crimes" are extra serious is that they have extra serious effects and that their victims are a whole community. They are terrorism.
Now, I am still hesitant to advocate the use of terrorism-laws in this case because the word "terrorism" has lost all rational meaning in political and legal discourse: use this word and suddenly all illegal state measures are "justified". It is a dangerous word (one could even argue that the use of the word "terrorism" has the function of terrorizing people).
In semantic reality though, you are right. Yours is the real meaning of terrorism.
Good idea, except remember when Sarah Palin refused to call clinic bombers and murders of women's health clinic doctors terrorists?
The thing is, there is a vocal minority that actively supports terrorist activities (particularly when it comes to women's reproductive rights and healthcare) and the "culture wars" will just be re-enacted when talking about hate crimes as terroristic acts and that might feed into the Fox News meme of social democracy = fascism.
The thing is, when you hear these arguments against hate crime bills, its really about that segment of society that would like to be able to discriminate, be hateful, and maybe even violent. Prosecution as hate crimes or as terrorists might work well, but the issues still need to be hashed out in public forums and educating people about how an assault on an individual because of his her race/gender expression/sexual orientation/etc is not a equivalent to a bar fight assault because the target was choose with intent to terrorize, intimidate, etc.
I think that these conversations need to be had and sometimes the passage of legislation is how that takes place, though you are right in pointing out that these acts are terrorism.
Thanks for the thoughtful post!
The thing is, when you hear these arguments against hate crime bills, its really about that segment of society that would like to be able to discriminate, be hateful, and maybe even violent.
Yes well fortunately there are particular laws on the books the deal with "discrimination" and "violence". There ought no be laws on the books about being "hateful" simply because there ought not be laws telling anyone what they should or should not like, think, etc.
an assault on an individual because of his her race/gender expression/sexual orientation/etc is not a equivalent to a bar fight assault because the target was choose with intent to terrorize, intimidate, etc.
Not true in the least bit. No one starts a fight because they DON'T want to intimidate or terroriize. That is THE primary intent of non-self defensive violence. The only notable difference in violence is that which is totally random and one that is not.
Hate crimes are designed to instill terror, and not just in the individual they are directed at but in other members of the targeted group as well.
Name me a crime that does not target a "group". Car thieves direct their activities and put all car owners at risk. Muggers direct their activities at all person who own valuables.
Bullies target any and everyone deemed less powerful then they are. I object to the use of legislation to create special "crimes' based on a sympathetic group.
Prosecute the action not the thought.
In agreement. This is a perfect argument for this type of legislation. Although the terrorist label is overused in our society, as an earlier commentator pointed out, this definitions makes legal sense. Hate crimes are designed to instill terror, and not just in the individual they are directed at but in other members of the targeted group as well.
Good thoughts.
I've been arguing on the other threads that hate crime legislation does NOT endanger first amendment rights. And I think anyone who supports anti-terrorism legislation, which states that "terrorism" is "the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives", should also support hate crime legislation. Why should an illegal act motivated by hatred towards a specific group of people receive more first amendment protections than an illegal act in furtherance of political or social objectives. What's the difference besides the fact that hate crime legislation opponents have more political clout and can yell the loudest?
Seriously, I want someone to explain the difference to me besides the fact that it is easier to support gay bashing than it is to support terrorism.
Well I oppose so called "anti-terrorism" legislation on the same grounds that I oppose hate crime legislation: There are laws for the supposed "illegal actions" already.
Gather a bunch of people and exhort them to "kill the fags!" and someone in that crowd goes and does it? No problem:
The speaker gets prosecuted for incitement to riot and the killer gets 25 to life. Everyone else gets the point:
Keep your mouth shut and leave other people alone.
But then we could have a case like:
Gather a bunch of people and tell them that the bankers who screwed the economy ought to be shot and then someone from the crowd offs the CEO of AIG, what then? The killer gets 25 to life and the speaker gets what? Do you prosecute that person for incitement? Or not because perhaps you're sympathetic to his or her position?
Are certain groups deserving of more legislative protection than others? if so then you soon run head long into the equal protection and due process issues.
Check for the unintended long term consequences of these things.
Thanks for everyone's comments and thoughts. It's an idea I'm still thinking through but one that I am definitely fond of.
As for individual terrorists versus terrorist organizations, although we often think of terrorism as being something calculated and planned by some overarching organization, I think we tend to think of it this way only because those organizations are the most available to monitor. It's hard for the FBI and other watchdog groups to keep tabs on every individual -- and, really, past a certain basic level of monitoring, we wouldn't really WANT them doing that -- and so the terrorism that gets the most press tends to be coordinated terrorism. But there are still individual terrorists. Tim McVeigh, anyone? Ted Kaczynski?
Also, as to what is considered terrorism -- if you look at the link to the FBI terrorism report in the post, you might be pleasantly surprised -- it seems the FBI actually does take right-wing terrorism pretty seriously, be it from the KKK or Operation Rescue or any number of other groups we might be inclined to think got more of a "free pass" under the Bush administration. Yes, the word "terrorism" is thrown around way too much these days -- I guess what I'm suggesting is akin to reclaiming the word. Just because some people use it in a way that's either inappropriate or misunderstood, doesn't mean it's necessarily time to completely abandon the word from our vernacular.
As to the difference between intent versus state of mind -- it's tricky, for sure, and in some ways probably just more of a difference of how we approach it. My thinking is that intent to terrorize is different from hate in that there is a clearly ascertainable, from objective circumstances, political objective to a terrorist incident, whereas hate is an intense emotional state (in many ways, in fact, very much like passion -- which can actually be a DEFENSE to certain crimes). In some ways it's like a difference between a calculated crime and an emotionally-motivated one, except terrorism as I'm using it largely removes the terrorist's individual state of mind. The terrorist could be a Tim McVeigh type -- relatively emotionless to the point of showing no real reaction to finding out he killed a number of innocent CHILDREN in his attack -- or a Death To America type or anything in between. It's *irrelevant*. So the point is not to look at the individual attacker's state of mind per se, but rather to look at the crime itself. What sort of crime does this look like? Is it a crime that seems to have been intended (consciously or subconsciously) to intimidate? In which case, we are not punishing the attacker for *being a hateful person*, which does have constitutional problems -- instead, we are punishing the attacker for *creating a hostile environment*. And part of the problem is that "intent" isn't defined perfectly, and probably isn't even the best word -- but I suspect it's the closest we have, so we use it.
And, to be clear, I'm not arguing that hate crimes are a slippery slope toward thought crime. I'm arguing, I think, that they already technically violate the first amendment. Not because of what they might lead to, but because of what they already do.
"I'm arguing, I think, that they already technically violate the first amendment. Not because of what they might lead to, but because of what they already do."
Then why doesn't a statute which prohibits illegal acts which are in furtherance of political or social objectives violate the first amendment.
That element of the crime is NOT a result element, it is a specific intent element. The statute explicitly instruct you to look at "the attacker's state of mind."
Also, the First Amendment is MUCH more protective of speech about political and social views than ANY other kind of speech, including speech about personal hatred. So under your logic, shouldn't anti-terrorist legislation be an even clearer violation of the 1st Amendment?
Sorry, it's hard to be clear about the distinction I'm trying to make.
Basically, the difference is that "intent" isn't getting at what the individual necessarily personally and individually actively intended to do. I mean, the idea behind "intent" is, on some level, obviously concerned with the individual's actual intent (as in, we don't want to penalize someone who accidentally blew up a federal building, if that were possible, the same way we want to penalize someone who did it on purpose) -- but when you're talking about things like terrorism and harassment and assault, it's also getting at, I think, a sense of "why WOULD someone do something like this?" So countering terrorism is aimed at countering incidents that we think are in some sense calculated at intimidating and coercing the government or citizens into acting a certain way (for instance, scaring black people into hiding or scaring gay people into the closet, etc.) Asking about personal animus, on the other hand, doesn't really care at all about the intent -- it only cares that you had some kind of bias against the person you harmed. But that doesn't attach to anything more specific than negative emotions (which is why, conceptually, it's an odd concept -- what we really are trying to get at with hate crime laws is what I think anti-terrorism measures are actually more/better designed to do -- we're trying to prevent a segment of society from being threatened and marginalized into silence and invisibility).
Also, hate is probably more protected -- and probably rightly so -- than politics and other more complex beliefs. Hate is an emotional state of mind. It's something you don't have as much control over as you do more complex systems of belief. Emotions often FOLLOW such beliefs, but they aren't the same thing. Beliefs are absolutely worthy of protection, but emotions -- well, maybe it would be more accurate to say the law doesn't really even address them (except in the context, generally, of defenses -- if you felt threatened and acted out, that's self-defense; if you were overcome by anger and acted out, that's a crime of passion; etc.) You can't outlaw hate anymore than you can outlaw having a sense of humor. It just kind of "is."
Oh -- forgot to mention this. Political beliefs and the like are NOT given complete protection. For instance, encouraging someone to assassinate the president is itself illegal. Plotting to overthrow the government is illegal.
Emotions, on the other hand, HAVE to have more protection. Hating the president and the government is not illegal. Criticizing them, within certain boundaries, is not illegal.
So anti-terrorism laws fit better within our current understanding of the First Amendment than hate crime laws do.
Ok, I see the distinction you are making.
Then I almost agree with your entire post.
Except for your first bullet point. I think it would be most effective not to use existing anti-terrorist laws, but to fashion future hate crime legislation after anti-terrorist-type laws. Then of course, we couldn't call it 'hate' crime legislation...
Thank you for posting this.
I agree that there are problems with the term "terrorism", but it seems much more reasonable to create a specific category for prosecuting those crimes that are explicitly intended to incite fear in an entire community.
It may make us feel better to contemplate horrible fates for racist, etc. assholes...but it can't be tenable under the First Amendment.
Just imagine the scaenario in a different time or place, with the ideas being outlawed as hateful being ones that you or I hold dear.
"Hate" is a lame word, and horrible for legal purposes, and it is also a MORAL problem. Who is it that likes to say that you can't legislate morality?
Ack, First Amendment arguments about hate crime legislation drive me crazy.
Why should an illegal act motivated by hatred towards a specific group of people receive more first amendment protections than an illegal act in furtherance of political or social objectives? Why is no one up in arms about the terrorists' first amendment rights?
"Why is no one up in arms about the terrorists' first amendment rights?"
And I'm not trying to say people should be up in arms about terrorists' first amendment rights, I'm just saying that NEITHER hate crime legislation NOR anti-terrorist legislation implicate first amendment rights. And if you think one does, then it has to follow that both do.
"Ack, First Amendment arguments about hate crime legislation drive me crazy."
And sorry if that comment came off as rude.
Sondjata, I hear you, but I think one simple thing that you might not understand is that we already take intent into account when prosecuting violent crimes.
So, for example, although someone might kill someone, if his/her intention was not to do so, they often receive "Manslaughter" verses "Murder." Intent is VERY IMPORTANT when determining what crime someone will be charged with, like "assault" verse "domestic assault" because the circumstances shape prosecution.
If it is the intention of a criminal, like in the Matthew Shepard case, to "go kill a f%$" and then to pick that individual based on perceived sexual orientation, then that must be taken into account verses someone who gets into a bar fight and accidentally kills someone. Both the Shepard case and many stranger violence cases could look similar, but without the nuance of intent, prosecution is hampered. It is important to note that WE ALREADY DO THIS IN CRIMINAL PROSECUTIONS and hate crime legislation just makes it more clear and helps to shape how some crimes ARE worse than others.
Now, if you don't personally believe that some crimes are worse than others, that's your deal, but the law code is clear on that and has been for decades, if not centuries.
Peace
Thank you for posting this, Law Fairy. I have learned a great deal and can consider this topic from new perspectives.
In discussions about hate crimes that I've had with my brother, I always bring up the terrorism angle. I also see hate crimes as terrorist acts. I can't say this from experience, because I've never been a victim of a hate crime. But I can say it as someone who suffered from Acute Stress Disorder after 9/11. I had nightmares, I was hypervigilant, and I was just all-around freaked out for a few weeks after the attacks. I can easily imagine that, for example, the gay community feels the same way after a gay person gets attacked for their sexual orientation.
But this makes me wonder if rape should be considered a terrorist act, since it has the same effect on women. Or would rape be different because women have a general fear of being raped all the time, not just after hearing of a single event of rape?
The idea that you can think and say what you want is essential in our country, and demands preeminent legal protection. The irony of course is that we can't ever prosecute anyone for saying or thinking something that is wrong, even when it is so obviously wrong, and so obviously harmful to our society and the ideals that demand it's protection.
Within that context, I can't support any hate crimes related legislation aimed at making the sentencing worse because of the defendant's views. Though there should be special policies that penalize any failure to investigate or prosecute such cases.
Though I also think that harassment should be legislated against. Bigotry more often expresses itself as just harassment, and prosecuting harassers of all sorts would deter bigotry.
I'm not intimately familiar with how the current terrorism laws work, but it seems as though they have a large potential for abuse, which may have been intentional by the Bush Administration.
Nevertheless, terrorism does deserve some special legal recognition. Terrorism is ultimately an attack on society as a whole, in addition to the violence itself. People deserve to be free from fear, and intentionally instilling such fear is a crime in of itself. Terrorism makes people think of Al Qaeda, but the truth is that a lot of hate crimes, even many committed by individuals are effectively terrorism. An individual or group seeking to terrorize ethnic groups to "keep them in their place" is common enough to warrant recognition under terrorism related laws.
"Though there should be special policies that penalize any failure to investigate or prosecute such cases."
I think that's a really good idea.
Actually, when something is harmful to our society (read: specific groups of people), we can prosecute. Think hate speech. Once your hate infringes on the rights of others, it's no longer okay.
I would be wary of using anti-terrorism laws to prosecute hate crimes, because I think that broadening the use of anti-terrorism legislation has been shown to be a very slippery slope in terms of civil rights internationally.
I live in Australia, so I am not sure of the details of America's anti-terror legislation, but in Australia the term 'terrorist' has been used very loosely, in instances such as to prevent US peace activist Scott Parkin from entering Australia. Similarly, in the UK 115 people were recently arrested for planning to disrupt the operation of a coal-fired power plant using anti-terror legislation.
My concern is that government use of anti-terror laws is already too liberal and, depending on the whims of the administrations of many countries, can be used to victimise protesters and human rights activists. I think that creating new legislation would be far preferable to using these laws and using the term terrorist when it has been used so negligently by the US in the past would be a bad move, I think.
That said, I think dealing with hate crimes is a vital issue, so keep at it!
"My concern is that government use of anti-terror laws is already too liberal and, depending on the whims of the administrations of many countries, can be used to victimise protesters and human rights activists."
I agree. Governments are already overusing the term "terrorism" to indict activists for their personal views and actions. Hate crimes should be punished accordingly, but further expanding the definition of terror is a frightening idea that will be used wrongly (look at the RNC Welcoming Committee in 2008 that was originally given terrorist charges) to persecute those with opposing views from the government.
I disagree.
First, I'm not sure that we have "too many laws" that are rarely enforced. I see people bring this statistic up all the time, but I'm skeptical that it is backed up by any meaningful data or knowledge of how the prosecution systems in the United States work.
Lots of different things are chargeable in different ways. One of the most animated forms of discussion in a prosecutorial office is how one will charge an offense. With any given offense, you aren't handed a ready-made and easily-identifiable criminal act. You're given an often messy set of facts, many of them contradictory. You must sift through that, consider what proof you can raise, the likelihood of that proof being admitted or available to you, and the relative strength of the proof given the fact-finder you will have at trial. After performing this balancing act, you then turn to a penal code to find out exactly what you get to use.
Federal statutes are nice, but they also require a federal jurisdictional hook, and it is true that there are less federal prosecutions for most crimes than state, simply because states are in a better position to do something about it.
All states (and most of the federal penal statutes) possess statutes designed to target the kinds of crime that fall under a "hate crime" definition. As you point out, this is a mens rea issue. Mens rea isn't something that is occasionally proven, it is something that has to be proven in every case that is not strict liability (e.g., speeding). For a homicide crime, intention/knowledge is the difference between reckless or negligent homicide and murder. There are even some states of mind that make a thing not a crime. For instance, you cannot negligently assault someone. If I carelessly throw back my hand and smack you in the nose, it's an accident, not a crime.
What makes people skeptical (and why I think you're skeptical) is that in this case mens rea sounds a lot like "motive," which is something TV lawyers often care about but is irrelevant to an actual criminal prosecution, except as circumstantial evidence of intent.
However, in this case, I think that the relevant state of mind increases one's culpability, which is the policy purpose behind a mens rea requirement in the first place. When one commits a crime just because the victim is a member of a protected class, that is a greater societal ill than one who commits a crime for purely personal reasons.
In this respect, it's not so much a true mens rea provision as it is an enhancement provision tacked on to the mens rea element of the crime. In that way, it's no different than enhancement statutes for prior convictions, for the use of a weapon/gun during the criminal transaction, etc.
It is still an element that must be proven to a fact-finder (judge or jury) beyond a reasonable doubt. It's even possible that evidence of hate crime mental states would not be introduced until the punishment phase of trial, removing the possibility of unfair prejudice to a jury or judge by restricting when and where such evidence will be heard.
The benefit of using "terrorism" or "terroristic" is debatable. Texas, for instance, has a terroristic threat statute that ranges from misdemeanor to felony range, depending on certain factors. While the word may carry serious societal connotations, legally it is not as descriptive as one might wish. "Enhancement provision," on the other hand, is, and it will lead to more just sentences for these types of crime.
As I've already said twice on this thread but will say once more in response to the OP: hate crimes legislation does not infringe on first amendment rights. It is not prosecuting 'thought crime' because it is not prosecuting the hate. After all, nearly all violent crimes stem from hate. What hate crimes legislation does is punish someone for targeting a person specifically because s/he's part of a social minority. Why do minorities deserve special status? Not because they're worth more than white het men, but because members of minority groups already face daily intimidation and harassment and traditionally have fewer means of recourse, legal and otherwise. In other words, it gives minorities special protection for being disadvantaged; it doesn't dole out special punishment for being a hateful tool.
I think of it like laws against child rape. We punish people who rape children more harshly than those who rape adults, not because being a pedophile is icky (analogy: being a bigot is icky) or because it's demonstrably less awful to rape an adult (analogy: still not okay to kill white het men), but because children are the most vulnerable minority.
I can't see charging hate crimes as terrorist acts being very effective. To most Americans, a terrorist is an Arab man with a big beard and shifty eyes. You put a decent looking white man in front of a jury for murdering a trans person, and try to charge him w/ terrorism, the jury is going to think "white man =/= terrorist".
I dunno, maybe I'm not giving the American people enough credit... here's to hoping.
I know I'm a few days late in commenting here, but I think there's a point being overlooked against your suggestion. Your argument makes logical sense from a certain point-of-view, in that what we call "hate crimes" are, in a sense, a form of domestic terrorism. But I'd like to make two counter-arguments.
1) As many here have argued, the crimes being prosecuted under hate crimes statutes are already crimes, and already have punishments. I understand the need to protect groups from targeted violence, but isn't the real problem not a lack of prosecution (for ex. in the A.Zapata case, her murderer was charged with murder, and in this case, thankfully, convicted of it), but the ability of defense lawyers to prejudice a jury against the victim in attempt to nullify what would be an otherwise slam-dunk guilty verdict? If hate crime legislation were applied consistently, then there exists only one group in society that does not potentially receive extra protection--the 18-60 year old white male (considering that children and elderly people are protected by child- and elder-abuse laws), the only group consistently considered to be universally advantaged. The law therefore creates a different legal status for a group of people that compose less than half of the general populace, and I find this problematic.
2) Defining "hate-crimes" as "terrorism" may help in protecting groups perceived as disadvantaged, but doing so also effects (at least potentially) the use of anti-terrorism on foreign policy, as well. For example, if targeting a group within a given society can be de facto construed as terrorism, then the U.S. invasion of Iraq was entirely consistent with our goal of preventing terrorism worldwide--S.Hussein certainly targeted specific groups within his society, therefore, Hussein was a terrorist. I strongly disagree with the Iraq war, it was awful foreign policy, but applying your logic clearly justifies the invasion as an attack on terrorism--and presumably would justify further invasions anywhere in the world where it could be demonstrated that a government has violently targeted certain groups. The problem is, the USA does need to combat international terrorism, but specifically in a context of countering terrorist groups (and nations that demonstratively support those groups) that directly threaten our populace (and the populace of our like-minded allies), which is a whole different ballgame than combating governments that persecute their own populations. Your argument has, in fact, been made to justify the Iraq war, which I'm certainly not alone in considering a foreign policy fiasco. If anyone is still looking at this, particularly the OP, I would be interested in responses.