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Apr 16 2013

Hate crime laws

Acts of violence against individuals are deplorable. But there seems to be something especially despicable about attacking someone purely because of that person’s ethnicity or gender or sexuality. This type of violence seems to be driven by hate for what people are as opposed to violence committed for gain (say as part of a robbery) or that is random and can be blamed on the pathological mental state of the perpetrator.

This is why legislation requiring harsher penalties for hate crimes have so much appeal and we now have such a federal law on the books that metes out stiff punishments for offenses motivated by actual or perceived race, color, religion, national origin, sexual orientation, gender identity, or disability. The expansion to cover sexual orientation and gender identity took place in 2009.

One cannot argue that it is only the degree of harm done to the victim that should be taken into account. Motive is an appropriate factor in judging punishment and we hand out different penalties for accidents, manslaughter, crimes of passion, or premeditated murder, even though the victim died in each case. But once you have established that a crime had intent and a motive, should it matter what that motive is? Is someone beaten up by a mugger somehow less a victim than one who is beaten because of ethnicity or any of the other categories of hate crimes?

I can see one reason in support of hate crimes legislation. One could make the case that society has an interest in discouraging groups of people going to battle with each other and hate crimes legislation are meant to discourage such tribal feuds from getting out of hand, while crimes by individuals against other individuals for everyday motives do not risk leading to escalations of hostilities or create a sense of generalized fear among members of the targeted groups. But is there any evidence that such hate crimes penalties have had a dampening effect on potential group conflicts?

Hate crime motivation laws do have a downside. While these laws have a worthy goal in mind in that they seek to protect vulnerable groups from harm by allowing for stiff punishments to be imposed on those who attack members of such groups precisely because of their group identity, elevating some motives above others is something that is fraught with the potential for abuse, especially by overzealous prosecutors.

An example is that of the weird Amish beard cutting case that I wrote about earlier, where the followers of Sam Mullet, the leader of a breakaway Amish group, forcibly entered the homes of those they considered heretics and enemies and held them down while shaving their hair and beards but otherwise did not physically harm them. In order to get stiff sentences imposed on Mullet and his followers, the US attorney Steven Dettelbach went to great lengths to turn what would normally have been a local case involving a feud between rival Amish groups into a federal hate crime.

Jacob Sullum describes how they did it.

Federal prosecutors said that religious motivation made the attacks hate crimes.

Is that really all it takes to make a federal case out what would otherwise be run-of-the-mill state crimes (albeit with a quirky Amish twist)? No, there are a couple of other elements that prosecutors had to allege. Since the federal hate crime statute applies to offenses involving actual or attempted “bodily injury,” they had to argue that shorn whiskers and hair qualify for that description—a bit of a stretch. While it’s true that such forcible makeovers are especially humiliating for the Amish, who consider long beards on married men and long hair on women religious requirements, this infliction of extra emotional distress does not change the physical reality of the act.

The government also had to cite an “interstate nexus” to justify federal prosecution. You might think that would be a challenge, since all of these crimes occurred within a single state. But hey, look, Dettelbach says: The “Wahl battery-operated hair clippers” used in the assaults “were purchased at Walmart and had travelled in and affected interstate commerce in that they were manufactured in Dover, Delaware.” The defendants also used “a pair of 8” horse mane shears which were manufactured in the State of New York and sent via private, interstate postal carrier to [a retailer] in Ohio for resale.” They took pictures of their victims with “a Fuji disposable camera from Walmart” that “travelled in and affected interstate commerce in that it was manufactured in Greenwood, South Carolina.” They used “an instrumentality of interstate commerce” (i.e., a highway) to reach victims in Trumbull County, Ohio. (They never actually left the state, but they could have.) The indictment also mentions a letter (carried by the U.S. Postal Service!) that was used to lure one of the victims. An embarrassment of interstate nexuses, in more ways than one.

As Sullum notes, this case represents an extraordinary expansion of what constitutes a hate crime.

By the legal logic applied in this case, any religious leader who uses corporal punishment to discipline wayward followers is guilty not just of assault but of a federal hate crime. Likewise a Hassid who slugs another Hassid after getting into an argument about who the next rebbe should be, two Catholics who come to blows over the merits of the Latin Mass, or two Mormons who tussle after one condemns the other for drinking caffeinated soft drinks. In each of these cases, the victim is selected “because of” his religion in the same sense that Mullet et al.’s victims were. Indeed, although the trial judge rejected the argument that bringing this case violated the First Amendment rights of Mullet and his co-defendants, they are effectively being punished for their religious beliefs, since they would not have been prosecuted under federal law if their motivation had been nonreligious. Under the Justice Department’s reading of the law, an assault is a hate crime if it is driven by disagreements over religious doctrine but not if arises from political, scientific, philosophical, or aesthetic disputes.

In another post, Sullum points out the dangers of using hate crimes this way.

It has always been true that hate crime statutes punish people for their bigotry, since the same actions are subject to more severe penalties when they are motivated by animosity toward the victim’s group. But treating Mullet’s offense as a hate crime sets another dangerous precedent, effectively punishing him for his religious beliefs. If the beard-cutting rampage had been motivated by political differences, personal animosity, or sheer orneriness, Mullet never would have been eligible for a life sentence. That became a possibility only because Mullet wanted to punish people he viewed as heretics. And by Dettelbach’s logic, any assault stemming from internecine religious disputes is a federal hate crime, even though that is surely not the scenario members of Congress had in mind when they passed the law under which Mullet was charged.

Perhaps it is the inclusion of religion in the list of protected categories that is the problem. All the others (race, color, national origin, sexual orientation, gender identity, or disability) are factors that the individual has no control over and cannot change, while religion is a chosen allegiance like in politics or sports team fandom. What is the difference between what Mullet and his followers did and a Cleveland Browns fan who assaults someone wearing a Pittsburgh Steelers sweatshirt because of the long-standing rivalry between the two teams or a Republican party supporter beating up someone wearing an Obama button?

On the other hand, religious conflicts have historically been some of the most vicious, so trying to discourage them through legislation may be worthwhile, though I do not know how effective such laws are.

It is a complicated issue for which there is perhaps no easy answer. What we could perhaps agree on is that over-zealous prosecutors should not be allowed to go to extreme lengths to bring ordinary crimes under the hate crimes umbrella just so that they can seek harsher penalties.

18 comments

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  1. 1
    Dunc

    Every aspect of the law, including its very existence, is open to abuse.

  2. 2
    One Brow

    Hate should not be about the potential conflict between two potentially equal groups. They’re about the protection of a disadvantaged group. When a mugger hits some one to get their wallet, there is no larger message. When some people beat up a man in a bar based on race/religion/orientation/etc. they are sending a message to everyone in that group that the member of that group are not acceptable. In addition to the actual violence, there is the threat of more violence to follow. At least for me, that makes hate crimes more serious.

  3. 3
    Raging Bee

    I notice that the article you cite is in Reason magazine, which is a well-known libertarian rag. And the author’s thesis is just another transparently bogus excuse to oppose Federal efforts to uphold the rights of minorities where states have been less willing to intervene.

    (One thing about Federal hate-crimes laws you didn’t mention: these laws are often invoked when state law-enforcement have shown themselves unwilling to prosecute crimes of racism or other bigotry against hated minorities such as blacks, gays, atheists, etc. And one reason such laws were proposed in the first place is that states have historically been unwilling to do their jobs WRT such violence.)

    When Gollum — excuse me, Sullum — blithers about “effectively punishing him for his religious beliefs,” he’s deliberately ignoring the fact that it’s ACTIONS being punished, not beliefs. Actions that have real consequences. That’s the fatal flaw that causes his entire thesis to fail.

    Also, notice how Sullum is portraying the bullies as victims, and those who stand up for the victims as tyrants? I’m surprised someone as intelligent as you dont’ see the obvious bully’s logic at work here.

    What is the difference between what Mullet and his followers did and a Cleveland Browns fan who assaults someone wearing a Pittsburgh Steelers sweatshirt because of the long-standing rivalry between the two team or a Republican party supporter beating up someone wearing an Obama button?

    For starters, there’s the factor of conspiracy and premeditation, neither of which is as prevalent in the examples you cite as they were in the Amish beard-cutting case. Also, Steelers fans and Obama supporters don’t tend to live in isolated backward religious communities like the Amish do, so they’re not as oppressed by such assaults as people in the bonies who can’t easily run away from their community’s extremist thugs.

    If you really think there needs to be a discussion of hate-crimes laws, you should start by basing such discussion on something better than right-wing sophists like Sollum.

  4. 4
    Raging Bee

    By the legal logic applied in this case, any religious leader who uses corporal punishment to discipline wayward followers is guilty not just of assault but of a federal hate crime.

    Given the severity of some of the “corporal punishments” we’ve heard about recently, that doesn’t seem like such a bad thing.

    Likewise a Hassid who slugs another Hassid after getting into an argument about who the next rebbe should be, two Catholics who come to blows over the merits of the Latin Mass, or two Mormons who tussle after one condemns the other for drinking caffeinated soft drinks.

    Does this Sullum guy really not see the difference between two individuals spontaneously getting in a fight, and a GROUP conspiring to terrorize and ostracise dissidents?

    And does Sullum really not see a problem in a religious cult depriving US citizens of the equal protection of US law on US turf? That’s what Sullum is trying to excuse here.

  5. 5
    Gregory in Seattle

    Hate crimes are not merely attacks again an individual: they are attacks against an entire community. The reason why someone would spray swastikas on a synagogue is not to commit an act of vandalism, but to terrorize the Jewish community that worships there. The reason why someone would burn a cross on an African American family’s front lawn is not to threaten them, but to terrorize all African Americans in the community. The reason why someone would beat a man to a bloody pulp or “corrective rape” a woman while yelling homophobic epithets is not to victimize someone who is or is perceived to be gay, but to terrorize every gay man and woman who hears about the attack.

    In short, hate crimes are terrorism. They should be punished as such.

  6. 6
    Nepenthe

    Somehow serial murderers and rapists–who terrorize the community as surely as a cross-burner–of women for being women are never prosecuted under hate crimes laws. Presumably “woman” is not a gender identity.

  7. 7
    Marcus Ranum

    To try to reduce your observation down:
    it’s more annoying to be attacked because someone hates us, rather than because they like our money.

    That makes sense, because we can all understand wanting the money, but most decent people can’t understand wanting to torment a complete stranger for something they are rather than did.

  8. 8
    Marcus Ranum

    Nepenthe
    Somehow serial murderers and rapists–who terrorize the community as surely as a cross-burner–of women for being women are never prosecuted under hate crimes laws.

    Probably there’s a desire to avoid expanded interpretations of “hate crime” to encompass crimes against women, because it would expose religious organizations to (justified) charges of being hate-speech sponsors.

    Serial murderers (like, for example, Raeder) maybe it seems unnecessary to charge them with hate crime on top of everything else, due to the severity of the “everything else”? I agree with you, though, that the majority of serial murderers are woman-haters; that’s obvious.

  9. 9
    jamessweet

    Yeah, what Raging Bee said.

    In a perfect world, hate crime laws don’t really make sense. Harsher sentencing for hate crimes makes sense, but that sort of thing is normally left to the discretion of judges. We recognize that the motive for a crime affects the punishment, but we normally deal with that on a case by case basis.

    But the point of hate crime laws is that crimes against minority groups and other oppressed groups have a tendency to be under-prosecuted in areas where the criminal justice system is actively prejudiced against those minorities. Federal hate crime legislation allows the federal government to step in where they would normally not have jurisdiction, to make sure that these crimes are prosecuted adequately.

  10. 10
    Raging Bee

    Serial murderers (like, for example, Raeder) maybe it seems unnecessary to charge them with hate crime on top of everything else, due to the severity of the “everything else”?

    Yes — most serial murderers get the book thrown at them by state authorities, with no urging from the Feds, simply because their crimes are normally so grisly that everyone wants them punished and even the laziest local cop wouldn’t want to be seen caring less than 100%. (But even then, when all of the victims are of minority groups, authorities are noticeably slower to catch the killers — see the Atlanta serial killer case of 1979-81, where all of the victims were black (all male?) teenagers.)

  11. 11
    jaytheostrich

    I’m not sure how appropriate it is to label someone as committing a hate crime against a group OF WHICH THEY ARE A PART, say for example an Amish man attacking other Amish men? I mean, a KKK member attacking black people for being black sure, but a member of a group enforcing (stupid) rules among his own group? Is that a hate crime?

  12. 12
    Raging Bee

    …but a member of a group enforcing (stupid) rules among his own group? Is that a hate crime?

    I can be, if it’s done for the same reason, and with similar effect, as a bunch of Klansmen ganging up on a black kid. (And, of course, if the victim reports it to the authorities.)

    I mean, when a $cientology thug beats up on an uppity church member for asking bothersome questions, that’s a crime, and it’s probably done with an obvious hateful intent — ergo, it’s a “hate crime.”

  13. 13
    smrnda

    I think the situations is a bit different than a typical hate-crime since it isn’t a bunch of non-Amish shaving the beards of Amish men knowing this is somehow a serious affront to their religious identity, but a conflict among members of the same group. Hate crimes are usually perpetrated by dominant groups against minority groups with the intent on sending a threat to all members of the same group.

    Hate crimes laws didn’t used to exist, and came about mostly as a way of ensuring members of minority groups that actions motivated by a desire to terrorize them would be punished by taking the view that they aren’t actions taken against a single individual, but against entire groups of people. Hanging a noose from a tree is an action that is a threat of violence against the entire Black population, so it should be dealt with in a far different fashion than if someone just hung a sign that said “F-ck you” from a tree. It’s sort of how a person who makes a vague threat of violence of some kind is going to probably get in much less trouble than someone who makes a more specific threat, and even less than someone who appears to have taken some steps in the direction of committing an act of violence.

    Perhaps better laws need to be written dealing with conflict within groups. I can imagine ethnic groups having similar conflicts so I think this isn’t necessarily restricted to religion.

  14. 14
    left0ver1under

    Hate crime laws are made necessary because of bigotry and laziness among police, prosecutors and judges who refuse to prosecute bigots (e.g. violence against gays, blacks, etc.). If all people were protected equally under existing laws, if “law enforcement” actually enforced existing laws and all people were treated equally when victimized, such laws would never be asked for. We shouldn’t need them, but they’ve become a necessity.

  15. 15
    markdowd

    What, pray tell, gives you the right to decide who is a part of Mullet’s group and who is not? Especially in the realm of religion. However stupidly trivial they may be to us outsiders, whatever differences existed between Mullet’s followers and their victims was enough for them to assault people over. In their view, their victims were probably not considered “one of them”.

    Mullet’s sole motivation for the assaults was that his victims were different from him, no matter how slight. That is the very base definition of a hate crime.

  16. 16
    markdowd

    I’m with a lot of the other guys up there: you did a TERRIBLE job analyzing this article, Mano. It sounds like you agree with it. To provide my own breakdown:

    If “bodily injury” is really specifically required as part of that law, I think that’s too narrow and should be changed. What is the long term difference between shaving someone’s beard and giving the a few bruises? Nothing. The hair will grow back and the bruises will heal. This asshole deliberately performed an act of assault against victims that he know would cause severe emotional discomfort, distress, possibly even trauma. I will not pretend to know how important a doctrinal requirement hair is for the Amish. However, just because it seems silly to us does not mean it is not serious to them.

    I do agree that the “interstate nexus” reasoning is bullshit. Every crime could become federal just by using that reasoning for the clothes on your back. A good reason to just get rid of that requirement, if Constitutionally possible.

    As for the “expansion” and “dangers” he points out:

    BULL.
    FUCKING.
    SHIT.

    I shall itemize, in no particular order:

    Bullshit #1) “… they are effectively being punished for their religious beliefs…”

    No, they are being punished for ASSAULTING people because of their VICTIM’s religious beliefs. consider replacing “Amish” with “homosexual”.

    “Your Honor, I had a personal religious dispute with that lady and we did not agree on what constitutes proper conduct regarding sexual relations between men and women. Therefore, I attempting to convince her with an involuntary demonstration of what my religion considers to be the proper procedure.”

    Would anyone seriously consider say that prosecuting “corrective rape” (in case my euphemistic portrayal wasn’t clear) is “punishing someone for their religious beliefs”? I’m talking about reasonable people, not fundies. That is a clear hate crime, and that doesn’t change if you replace “fundie and lesbian” with “two different Amish sects”.

    Bullshit #2: “Under the Justice Department’s reading of the law, an assault is a hate crime if it is driven by disagreements over religious doctrine but not if arises from political, scientific, philosophical, or aesthetic disputes.”

    Of course not. Those aren’t going to be prosecuted as hate crimes because THOSE AREN’T HATE CRIMES!

    Bullshit #3: “…because Mullet wanted to punish people he viewed as heretics.”

    That is a hate crime.

    Bullshit #4: “And by Dettelbach’s logic, any assault stemming from internecine religious disputes is a federal hate crime…”

    Because it is a hate crime.

    Bullshit #5: “…even though that is surely not the scenario members of Congress had in mind when they passed the law under which Mullet was charged.”

    I don’t care about “what the founders intended”, even if it’s just for this law; I care about what is RIGHT.

    Mullet was charged with a hate crime because he COMMITTED A HATE CRIME. (Can you see that pattern here?)

    Now for your statements, which really let me down.

    “Perhaps it is the inclusion of religion in the list of protected categories that is the problem.”

    I do not consider this a problem. I think that discrimination laws and hate crime laws go hand-in-hand since both problems that the laws address stem from the same dynamic: a power imbalance of the privledged over the disadvantaged minority. If religion is a protected class against discrimination, I do not think it is unreasonable to protect it against hate crimes as well.

    “All the others (race, color, national origin, sexual orientation, gender identity, or disability) are factors that the individual has no control over and cannot change, while religion is a chosen allegiance like in politics or sports team fandom.”

    Irrelevant. Just because it is different from other protected groups does not mean it should not be protected.

    Religion is protected because it is personal and deeply important to many people.

    “What is the difference between what Mullet and his followers did and a Cleveland Browns fan who assaults someone wearing a Pittsburgh Steelers sweatshirt because of the long-standing rivalry between the two teams…”

    Becasue assaulting someone based on that is just fucking STUPID. Sports team preference does not deserve to be a protected class, and truly hope I do not have to spell out why.

    “…or a Republican party supporter beating up someone wearing an Obama button?”

    I am actually sympathetic to classifying this as a hate crime. I actually do not see much difference between this hypothetical and the Amish incident in the above article.

    Of course, depends on the details as well. Two guys in a bar get a bit too heated in a discussion of the proper tax rate? Your regular garden-variety assault. A few good old boys hopping into the back of a truck and going “liberal hunting”? Hate crime.

    “What we could perhaps agree on is that over-zealous prosecutors should not be allowed to go to extreme lengths to bring ordinary crimes under the hate crimes umbrella just so that they can seek harsher penalties.”

    Cetainly true.

    This however, is not an example of that.

  17. 17
    baal

    I fall closer to Mano than to markdowd*. One one hand (con), we’re slouching (but quickly) towards police state and the current standards for applying hate crime statutes can be overly broad. As such, it’s worth keeping prosecutors honest and having mechanisms in place (like good evidence for each element in their burden of proof) to keep them from using the laws to target groups at their whim (anti-loitering laws anyone?).

    There are two arguments in the comments (pro) for the hate crime laws.
    First local discrimination goes unchecked due to local (or State) officials being willing to flat out ignore crime done to minority group. We want redress for those cases. I would argue the right place to get redress is to enact legislation to prosecute the non-or mis-feasance of public office holders and police. I do not support expansion of hate crimes as a solution to this problem, else you get the Amish case where the ‘hate’ is making the crime more psychologically harmful but doesn’t oppress.

    The second argument, I agree with. If someone burns a cross on the sidewalk in front of a house, the physical damage could very well be nil and not carry risk similar to a small charcoal grill. Not a big deal….Unless you’re familiar with the history of racism in the US in which case it’s more than clear the burning cross is a death threat (and should be actionable as such) to that specific homeowner and it’s a second harm of a clear message to the entire neighborhood that POC are fair game for violence, abuse and other forms of marginalization. Criminal law generally seeks to help make it possible for everyone to live together in reasonable security. As such, it strikes me that the burning cross is a fundamental violation of the law. We call such bad act, ‘hate crimes’. I’m all for the laws in these cases. While I don’t think a history of abuse is needed; to prevent the bias prosecution problems from the pro side, I do think hate crimes need to have a clear element that shows an intent to discriminate and drive folks out on the basis of identity. Under that defn, I don’t see the amish on amish violence as a hate crime (or would need to see evidence that the de-bearding was being done by one clear group of amish as part of a overall campaign to drive another distinct group of amish out of a certain area).

    *so many piles of bullshit make it hard to read your argument.

  18. 18
    Ronnie Cameragh

    A number of atheist blogs have themselves become hate sites.

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