04/13/1999: Discord

Posted By: Richard_B_Bernstein


You keep setting up hypotheticals that make possible the disparate and unfair results you fear, but ignoring that these hypotheticals cannot happen in the legal system that we have, premised as it is on such principles as the requirement of an overt act for punishment of a crime and the requirement that every element of a crime be proved beyond a reasonable doubt.

For example, the stabbing example: You'd have to prove that X assaulted me, and that he said what he did as he assaulted me, and that the statement he made embodied the motive for which he assaulted me. If you could not prove each and every element as listed above, X could be convicted of assault but not of a hate crime.

Your distinction between "calling me a name" and "threatening all Jews" doesn't work, either. You don't call someone that name unless it's inspired by bigotry, and you don't make an issue of your victim's identity as a Jew (or an African-American or a gay or a Swede or a Serb or a woman or whatever) unless it's part of your purpose in committing the assault.

There are various ways to prove the hate motive; but they are all difficult and they all require the satisfaction of the "beyond a reasonable doubt" standard. You can't prove a hate crime without an expression of the hate.

Your claim that hate crimes will lessen punishment for non-hate crimes is not true. Pure and simple.

Let's take your proffered example. Juries HATE criminals who kill children, especially criminals who kill little girls. They will NOT stint on arguing for the maximum penalty for the killer of, say, JonBenet Ramsey, (or even the Olsen twins) because the case in the next courtroom meted out the maximum penalty to a Klansman who killed a little African-American girl.

In capital cases, what usually happens is that the judge or the jury (or the judge-and-jury) will examine, once the finding of guilt comes in, the totality of the circumstances of the crime. If the crime merits the death penalty on all factors, and that penalty is legally available, it will be imposed. If not, not. I don't see what is wrong with figuring into the calculus of factors determining the proper penalty the bigotry that motivated X to commit a crime as a hate-crime.

Besides -- your argument, about how punishing these crimes will only worsen social relations, is the same argument that people have made against civil-rights enforcement for over a century. Yet again, it's a "fallacy of danger" argument that does not respond to how the law really works but rather to how an opponent of a given law wants those as yet undecided about it to believe that it could work.

At bottom, you still seem to believe that hate-crime legislation criminalizes mere thought. It does not. It cannot.


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