All Crimes are Hate Crimes

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
©2013 John B. Payne, Attorney

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  • Interesting… but does that mean that once a crime is committed, intent shouldn’t count? Is painting a swastika on a synagogue door the same as painting a heart on an abandoned building?

    • As obnoxious as painting a swastika on a synagogue is, it should not be punished more severely than painting a flower on a boxcar. If picketing a military funeral with anti-gay posters is protected by the First Amendment, the content of graffiti should not enhance the punishment for defacing another’s property. I am not saying that intent should never be an element of a crime. Intent is the differential in homicide that separates murder from manslaughter or a lesser form of homicide, like reckless use of a firearm causing death. However, as subjective and elusive a state of mind as social animus should not be an enhancement applied to other crimes. In writing this, it occurs to me that hate could be grounds for federal jurisdiction where bigotry and intolerance are significant factors in criminal activity. This would address one of the major reasons for hate-crime legislation — leniency by state prosecutors and judges when majority-culture offenders commit crimes against minority victims. The 1983 Vincent Chin case in Highland Park, Michigan is a case in point. White assailants were given probation for having beaten a Chinese-American to death in 1982 and the federal prosecutor brought a new prosecution against them.

      I believe that a second prosecution of the Chin defendants should have been prohibited by double jeopardy, but in a region where there is a pattern of racial injustice in the state criminal system, federal prosecution would be justified, as long as the federal prosecutor steps in before jeopardy attaches. Federal prosecutors should not cave in to public opinion in individual cases bring repeated prosecutions just because there is a perception that the state prosecution was insufficient.

      Civil-Rights Era acquittals of White Supremists by all-white juries in the South were a special class of cases. There it can be said that there was no legitimate prosecution in the first trial. That was not the case in Michigan in the ’80s.

      • Fascinating perspective. But if we go down that road, how can society address, for example, hate groups. Neo-nazis and their many variations, and the crimes they commit.
        Isn’t there something particularly heinous in their intent (in what’s characterized as a hate crime) that merits some level of differential punishment?

        • It is not necessary to delve into the criminal’s prejudices to achieve a just punishment. Heinous attacks should be more severely punished than attacks that are merely nasty. Whether the actor is a skinhead attacking a minority or a skinhead attacking a like-minded skinhead over money, turf or tart, the same level of brutality should draw the same punishment.


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