As a Commie-symp, affirmative-action-loving, equal-rights-for-all, keep-your-narc-nose-out-of-my-pantry, gun-registering, my-sex-is-my-business, capital ell Liberal, I generally agree with The Pink Agendist. On hate-crime statutes, however, I dissent from his position in “UK changes hate crimes statute and doesn’t get it entirely right,”. His argument that hate-crime laws should be written as a general prohibition on committing crimes with a hateful mindset instead of including a laundry list of types of discrimination is misguided. Hate crime statutes are never right and there is no right way of drafting them.
Enhancing criminal penalties for a bigoted mens rea – guilty knowledge or intention – is a mistake. Prosecutors want such enhancements to give them more tools to extort guilty pleas – “Plead guilty to aggravated assault and I won’t add the hate-crime count.” – but they are fundamentally unfair, when not silly. After the murder of Matthew Shepard, there was an outcry for the passage of hate-crime legislation despite the fact that his murderers were already subject to the death penalty. How do you enhance the death penalty?
If Mugsy, a racist, attacks Terrapin, a racial minority, and gives him a black eye, a broken jaw, and lacerations requiring 26 stitches, he should receive the same sentence as Stymie, a racial minority, who attacked Turnbuckle, a member of Stymie’s racial group, and gave him a black eye, a broken jaw, and lacerations requiring 26 stitches. Imputing a racial, sectarian, gender or political animus to a crime is so speculative and subjective that there is no fair measure by which guilt could be judged. More generally, every crime is directed at a particular individual based on his or her social characteristics – gender, sexual orientation, race, religion, and social class.
Lucky, a rapist, is on the prowl in his racial ghetto, when he sees Emelda, a beautiful Latina wearing expensive shoes who is clearly out of place on Lucky’s turf. On the other side of the street is Filisha, a woman who lives in the neighborhood and is in Lucky’s racial group. Does Lucky attack Emelda or Filisha? He may attack Emelda thinking that she is out of her milieu and has no friends to protect or avenger her, or he may attack Filisha because he thinks that the police would investigate Emelda’s attack more vigorously than Filisha’s. Whether Lucky attacks Emelda or Filisha, there would be racial or social reasons.
It could be argued that crimes where hate is a motivation are more vicious. A robber who would demand the wallet and watch of a victim of his own racial or social group may run off with the loot without causing injury. However, the robber may administer a beating or worse with the robbery if there is social animus. That does not provide a rationale for adding “hate crime” enhancements. A robbery accompanied by injury should be punished more severely based on the behavior alone. It is not necessary to delve into the criminal’s socio-pathology and try to fathom the exact nature of his or her antipathy to the victim.
Forget the hate-crime issue. Crime should be punished based on the actus reus – the physcial components of the crime – and the resulting injury. Punishment should not be enhanced due to a hypothecated hateful mens rea.
John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
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