Posts Tagged ‘hate crime’

Another reason to hate NY’s “Hate Crimes” law

Tuesday, June 22nd, 2010


“Hate” is not an element of New York’s “hate crime” law.  You don’t have to hate to commit a hate crime.  Instead, the law merely requires that you have “a belief or perception” regarding a person’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation.  (The legislature could have saved a lot of bother by simply saying “a characteristic of a person over which that person has no control.”  That’s the policy they’re pursuing, even if they don’t realize it.)

There’s a list of eligible crimes at PL §485.05(3).  If you commit one of those crimes, and if you either chose your victim or committed the crime because of such “a belief or perception,” then you are guilty of a hate crime in New York, and now face harsher punishment.

This is a pretty vague statute.  You don’t need to have any specific belief or perception about someone, just “a” belief or perception.

The Queens DA’s office — already known more for its zeal than for its sense of justice — has now taken that vagueness to its logical extreme.  They’ve taken the reductio ad absurdum and made it office policy.


The New York Times reports today that the Queens DA has been going after people who defraud old people, not because of any animus towards old people, but because of a belief about old people.  Namely, that old people are easy to defraud. 

Ordinarily, such frauds do not carry any mandatory jail time.  But if charged as a hate crime, they carry mandatory upstate prison time.  Can it be that the legislature really intended this outcome?

By the Queens DA’s logic, every scam targeted at the elderly is a hate crime, because the scam rests on a belief that old folks are easy to scam. 

By this same logic, any (more…)

Why Conservatives and Defense Lawyers Should LOVE the New Hate Crimes Law

Friday, October 30th, 2009

hate crime

On Wednesday, President Barack Obama signed into law the 2010 National Defense Authorization Act. As usual, the Act included provisions that had nothing whatsoever to do with National Defense Authorization. And one of the tacked-on provisions was the much-debated Hate Crimes Prevention Act.

We wrote about this back on May 1. It was one of our longer analyses, but our closing paragraphs sum it up fairly succinctly:

In short, we don’t have a legal or constitutional problem with hate crime laws. They actually seem to be a natural extension of our criminal jurisprudence. But [the House version of the bill] seems to have been passed without anyone actually reading it (not surprising, as it hardly spend any time in committee).

An administration and the same-party majority in Congress just want to push a law through, and so they will. And they will wind up passing a law that probably doesn’t mean what they wanted it to mean, and which might not stand up under scrutiny.
So what’s new?

Well, now we have a final version (read it here or in relevant part at the end of this post), codified at 18 U.S.C. §249. So let’s see what the law as passed actually says, whether it means what they wanted it to mean, and whether it might stand up under scrutiny, shall we?

As passed, the Hate Crimes Prevention Act amends the existing Hate Crimes law so that:

1. If you went after your victim because of the (actual or perceived) race, color, religion, national origin, sex, sexual orientation, “gender identity” or disability of any person (not just that of the victim)…

2. And you either hurt them on purpose, or you tried to hurt them with a weapon of some kind…

3. Then your maximum prison sentence gets increased to 10 years.

4. And you can get life if anyone died, if anyone was kidnapped, if there was aggravated sexual abuse, or you even tried to kill/kidnap/sexually abuse.


This is slightly — but only slightly — different from the version originally passed by the House back in the Spring.

To get federal jurisdiction, they need a federal hook. Only race, color, religion and national origin seem to be automatically federal. So the statute has a “crossing state lines” and “interstate commerce” hook for offenses caused by religion, national origin, sex, sexual orientation, gender identity and disability. (Why religion and national origin are included in both sections is beyond us.)

That’s not a huge hurdle, frankly. Interstate travel and interstate commerce are so broadly defined — and have been for generations now — that most crimes are going to fit the bill. If a weapon was used, for example, it had to have been made somewhere, and even if you made it yourself it affected interstate commerce as you didn’t buy one at Wal-Mart.

The Office of Legal Counsel has issued a memorandum saying the Act’s language passes constitutional muster. With respect to the Commerce Clause, we’re inclined to agree. The Commerce Clause may be an absolute mockery as interpreted throughout living memory, but it is what it is, and that’s that.


But isn’t this a thought crime, you ask?

Isn’t this just a second bite at the apple for the government?

Isn’t it already against the law to hurt, kill, shoot, blow up, kidnap, rape, etc.?

Doesn’t it put a greater value on the life of selected victims, as opposed to the rest of us?

Isn’t this the opposite of equal protection of the laws?

How is this just, you ask?

You’re not alone. It seems like this is the one common ground where conservative commentators and criminal defense attorneys seem to agree — they generally hate this law.

We happen to be both conservative and a criminal defense attorney. And yet we can’t help but think this law isn’t such a big deal. It’s really not that objectionable.

In fact, it seems to fit into our jurisprudence quite naturally.


Is this a thought crime? Yes, absolutely. Just like almost every other crime out there.

Crime is something so harmful to society that we restrain the offender’s liberty, take his property, or even take his life. Not every harmful act counts, therefore. We don’t kill people for accidents.

So how do we tell which harmful acts get punished, and which ones don’t?

We look at what the heck you were thinking. For any given act, your punishment will depend entirely on what was going through your mind at the time.

If it was just an accident, then it’s not your fault, and we’re not going to punish you. If you were just a little kid, or severely retarded, or insane, or otherwise can’t be accountable for your actions, then we’re not going to punish you. There’s no point in punishing you.

We’ll punish you a little bit if you should have known better, or you should have been careful. You weren’t trying to do anything wrong, but you should have paid more attention. Your mental state is the key. Your mental state was a little bit culpable, so you get punished a little bit.

We’ll punish you more if you were just being reckless. You weren’t trying to hurt someone, but you knew it could have happened, and you went ahead and did it anyway. Your mental state was more culpable, so you get punished more.

We’ll punish you a lot if you knew it was going to happen. It might not have been your purpose, you weren’t out to hurt someone, you were trying to do something else, but you knew that someone was probably going to get hurt in the process. Your mental state was a lot culpable, so you get punished a lot.

And of course, if you were really trying to hurt someone, and sure enough they got hurt, well then of course you get punished the most.

So all crimes (with limited exceptions for strict liability crimes) are thought crimes.

This hate-crime legislation is nothing more than a new twist on this very old concept. Just like with any other crime, it looks at what you, the perpetrator, thought you were doing. You had a belief about your victim, and because of that belief, you tried to hurt him.

It’s not your mental state about the risk of harm — as all the others are — it is different. It’s your mental state about the nature of your victim.

But that also makes perfect sense, in our jurisprudence.


Throughout our country’s history — from the fights against religious persecution, to the war against slavery, to women’s rights and the civil rights battles of the 1950s — we have come to accept a basic policy: IT IS BAD FOR SOCIETY WHEN PEOPLE ARE MISTREATED BASED ON ATTRIBUTES BEYOND THEIR CONTROL.

That is simply a no-brainer for anyone who loves freedom, individual rights, and equal justice. Americans cannot stand a bully, and will not tolerate those who hurt people for reasons their victims couldn’t help.

Nobody can help what race they happen to be. Nobody can help what religion they happen to have been born into. Nobody gets to choose whether to be born a boy or a girl. Nobody gets to choose what country they happen to have been born in.

Hurting someone because of uncontrollable attributes like these is a clear affront to society. Something we’d typically classify as a crime. It makes perfect sense to define a particular crime of hurting people because of personal attributes beyond their control.

And in recent years, our society has come to accept the fact that other attributes are also beyond our control. Nobody can help how their brains are wired with respect to sexual attraction, it’s inborn. Nobody can help the fact that they’re missing limbs, or are mentally retarded, or otherwise disabled — wouldn’t they if they could?

For our entire lifetime, there has been federal hate-crime legislation. The 1969 law covered race, color, religion, ethnicity and national origin. In later years, we added sex and disability. It makes perfect sense to now expand the already-existing law to include crimes committed against people who happen to be gay, or who were born with a girl’s brain in a boy’s body.

This is not giving extra protections to these people. It is giving extra punishment to those who would hurt someone simply for having been born. Those offenders cause extra harm to society, more than the already grievous harm caused by “ordinary” murders, rapes and assaults. Extra harm to society means extra punishment.

It’s as simple as that.


Here is the relevant text of the bill.

Sec. 249. Hate crime acts

(a) In General-

““`(1) OFFENSES INVOLVING ACTUAL OR PERCEIVED RACE, COLOR, RELIGION, OR NATIONAL ORIGIN- Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person–

“““““(A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and

“““““(B) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if–

“““““““`(i) death results from the offense; or
“““““““`(ii) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.


“““““(A) IN GENERAL- Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B) or paragraph (3), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person–

“““““““`(i) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and

“““““““`(ii) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if–

“““““““““(I) death results from the offense; or

“““““““““(II) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

“““““(B) CIRCUMSTANCES DESCRIBED- For purposes of subparagraph (A), the circumstances described in this subparagraph are that–

“““““““`(i) the conduct described in subparagraph (A) occurs during the course of, or as the result of, the travel of the defendant or the victim–

“““““““““(I) across a State line or national border; or

“““““““““(II) using a channel, facility, or instrumentality of interstate or foreign commerce;

“““““““`(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct described in subparagraph (A);

“““““““`(iii) in connection with the conduct described in subparagraph (A), the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or

“““““““`(iv) the conduct described in subparagraph (A)–

“““““““““ (I) interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or

“““““““““(II) otherwise affects interstate or foreign commerce.

““`(3) OFFENSES OCCURRING IN THE SPECIAL MARITIME OR TERRITORIAL JURISDICTION OF THE UNITED STATES- Whoever, within the special maritime or territorial jurisdiction of the United States, engages in conduct described in paragraph (1) or in paragraph (2)(A) (without regard to whether that conduct occurred in a circumstance described in paragraph (2)(B)) shall be subject to the same penalties as prescribed in those paragraphs.

(b) Certification Requirement-

““`(1) IN GENERAL- No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, or a designee, that–

“““““(A) the State does not have jurisdiction;

“““““(B) the State has requested that the Federal Government assume jurisdiction;

“““““(C) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or

“““““(D) a prosecution by the United States is in the public interest and necessary to secure substantial justice.

““`(2) RULE OF CONSTRUCTION- Nothing in this subsection shall be construed to limit the authority of Federal officers, or a Federal grand jury, to investigate possible violations of this section.

(c) Definitions- In this section–

““`(1) the term `bodily injury’ has the meaning given such term in section 1365(h)(4) of this title, but does not include solely emotional or psychological harm to the victim;

““`(2) the term `explosive or incendiary device’ has the meaning given such term in section 232 of this title;

““`(3) the term `firearm’ has the meaning given such term in section 921(a) of this title;

““`(4) the term `gender identity’ means actual or perceived gender-related characteristics; and

““`(5) the term `State’ includes the District of Columbia, Puerto Rico, and any other territory or possession of the United States.

(d) Statute of Limitations-

““`(1) OFFENSES NOT RESULTING IN DEATH- Except as provided in paragraph (2), no person shall be prosecuted, tried, or punished for any offense under this section unless the indictment for such offense is found, or the information for such offense is instituted, not later than 7 years after the date on which the offense was committed.

““`(2) DEATH RESULTING OFFENSES- An indictment or information alleging that an offense under this section resulted in death may be found or instituted at any time without limitation.’.

Nat Hentoff Wrong on Rights? Say It Ain’t So!

Monday, May 11th, 2009

The clip above is from a speech Nat Hentoff gave a little while ago, summarizing some of the problems he has with hate crime legislation in general, and with the bill currently being rammed through Congress. The day after he gave that speech, we wrote in more detail about our own concerns with the law.

Although we do not like hate crimes any more than Mr. Hentoff does, we differ with him in that we don’t think they’re per se unconstitutional or inconsistent with American jurisprudence.

Hate crime laws stink because they fail to distinguish between criminal conduct and that which is merely nasty. They take something offensive, and call it an offense. That’s not what criminal law is for. The purpose of criminal law is to identify those acts that are not merely unpleasant, but which are so dangerous to society that they call out for the State to impose its might on the individual and punish him by taking away his life, liberty or property.

Now, there is a PC echo chamber that has a disproportionate voice in today’s government, and in that chamber “hate” really is seen as something requiring extra punishment. Commiting a crime with hate required more punishment than if you committed the same crime for some other reason. But outside of that echo chamber, the mainstream culture just doesn’t see a distasteful motive as a justification for extra punishment.

Hate crime laws also stink because they are inherently un-American. They’re something you’d more expect to see in continental Europe, where state dominion over the individual has been the norm since time out of mind, and there are fewer protections for offensive thoughts. Hate crimes are the stuff of the horror show that England has lately become, as London’s Mayor Boris Johnson writes today, complaining of an England with “its addiction to political correctness — where people are increasingly confused and panic-stricken about what they can say and what is forbidden, a culture where a police officer can seriously think he is right to arrest a protester for calling a police horse ‘gay.’ [England’s] courts and tribunals are clogged with people claiming to have suffered insults of one kind or another, and a country once famous for free speech is now hysterically and expensively sensitive to anything that could be taken as a slight.” That is not the direction in which Americans tend to see themselves heading. Off campus, America simply is not a place where the ASBO could exist. And so it is not a place where hate crimes ought to exist.

That doesn’t mean such laws are necessarily inconsistent with the underlying principles of how we make criminal laws in general. They may not fit with American sensibilities, but they don’t violate our jurisprudence. As we wrote last time, the general idea of hate crimes is simply to add a new level of mens rea. It’s not only doable, it’s something that we’ve done before.

Today, Mr. Hentoff published another piece on the upcoming hate-crimes law, spelling out why he thinks it is unconstitutional and not merely a bad idea. It “violates all these constitutional provisions,” he says: the First Amendment, equal protection of the laws under the Fourteenth Amendment, and the double jeopardy clause of the Fifth Amendment.

We do think the bill, as written, is so vague that is must be voided by the Rule of Lenity. And we do think that, as written, it could well have unintended consequences, and create far more injustice than it’s supposed to prevent.

But unconstitutional? We hate to say this, but we think Mr. Hentoff… we think he… (we can’t believe we’re saying this about one of our intellectual idols)… we think Mr. Hentoff has mischaracterized the rights and protections of the Constitution.

How does it violate the First Amendment? Hentoff acknowledges that the bill explicitly says that it isn’t to be read so as to “prohibit any expressive conduct protected from legal prohibition” or speech “protected by the free speech or free exercise clauses in the First Amendment.” But he alludes to 18 U.S.C. § 2(a), which makes you punishable as a principal if you merely “abet, counsel, command or induce” a crime. Speech that induces a hate crime would make you guilty of the hate crime, and so free-speech protections would be violated.

This point was raised in 2007, the last time this bill was considered, when Democratic Rep. Artur Davis said that the law could conceivably be used to prosecute a pastor who had preached that homosexuality is a sin, if it induced someone else to commit violence against a gay person.

There are two big problems here. First of all, the First Amendment protection of free speech is not absolute, and Hentoff of all people should know this. There is always a balancing of the right to free expression against the harm to society that such expression may cause. You don’t have a free-speech right to shout that you have a bomb while standing in line at an airport. You don’t have a free-speech right to offer to sell crack to an undercover. When speech makes out an otherwise criminal act, you’re going to face jail for having said those words. And the First Amendment won’t protect you.

The other problem is that 18 U.S.C. § 2 does not impose criminal liability for unexpected consequences. A pastor who speaks about the Bible to his congregation isn’t going to be liable for subsequent acts of a deviant member of his flock. That’s not the same as a similar authority figure instructing an unstable young man that God wants him to kill gay people. There’s an element of willfulness or recklessness that’s required. And if you willfully said something to induce an act of violence, then it is not speech that the First Amendment protects.

How does this hate crimes bill violate the Fourteenth Amendment? Hentoff says it violates equal protection, not in the way it’s written, but in the way it will be enforced. A white person targeting black people will be punished for the hate crime, but a black person targeting whites won’t be.

That may make intuitive sense, as the law was originally conceived to battle discrimination against minorities. And prosecutors may choose not to apply it if the victim is a white male. That has happened before, as Hentoff points out. A gang in Colorado had an initiation ritual of raping a white woman, and the prosecutor in Boulder opted not to charge a hate crime there.

Nevertheless, the law itself, as written, does not violate equal protection. Yes, prosecutors will (and must) always have the discretion to choose whether to bring a charge or not in a given case. And it is entirely likely that a black guy who punches someone in the nose just because they’re white may not be charged with a hate crime, even though it clearly fits the bill, because of other factors going through the prosecutor’s head — it might not be politically savvy to further penalize someone who (to the paternalistic PC) already had to suffer the discrimination and indignity that made him act out like this. Or it just might not feel right.

But then again, this bill, as amended, is now written very broadly. It casts a much wider net than mere black vs. white. In addition to race, it considers violence committed because of national origin, religion, sex, sexual preference and disability. Everyone is a potential victim of a hate crime now. There are going to be plenty of opportunities to charge members of “victim classes” for hate crimes when they attack members of other victim classes. A disparate effect has yet to occur, and there’s good reason to believe that it never will.

And how does the bill violate double jeopardy? Hentoff is concerned that someone could be charged with an assault in state court, and be found not guilty, only to find himself haled into federal court to face a new prosecution for the same act under the federal hate crime law.

Unfortunately, this is not a double jeopardy problem. It is not unconstitutional for the feds to prosecute someone for a federal crime after he’s already gone through a prosecution for the same act in state court. Double jeopardy does not apply to prosecutions brought by different sovereigns. Each state is a separate sovereign, in addition to the federal government. If you stand in Manhattan and shoot someone on the other side of the Hudson in New Jersey, both states are allowed to prosecute you for it. Some states have extra protections for the individual here — New York won’t prosecute someone after the feds did — but the feds are not so constrained.

And the feds already do this kind of thing routinely with gun laws. If you committed certain crimes with a gun, you can be prosecuted in state court for the crime, and then afterwards get prosecuted in federal court for possessing the gun at the time. These cases are extremely straightforward — either you possessed the gun or you didn’t — and they often go to trial, because of mandatory sentencing, so young federal prosecutors tend to cut their teeth on this stuff. It’s routine, and it does not at all violate double jeopardy.

* * * * *

Hentoff ends his piece today by urging President Obama, before signing the bill into law, to refresh his understanding of the Constitution. He suggests that, as the “former senior lecturer in that document at the University of Chicago, [Obama] should at least take it with him on Air Force One, where there are fewer necessary distractions, and familiarize himself with what the Constitution actually says.”

We love Nat Hentoff. We idolize the man. We agree that hate crime laws have no place in this country. But we think he ought to take his own advice and re-familiarize himself with what the Constitution does and does not protect.

Upcoming New Hate-Crime Law — Nothing Wrong With the Idea, But This One Has Problems

Friday, May 1st, 2009


The other day, by a vote of 249 (59%) to 175 (41%), the U.S. House of Representatives voted to expand the scope of federal “hate crimes” to include crimes against gay people, transgender people, the mentally disabled and the physically disabled. With strong support from the White House and from Senate democrats, we expect to soon see this become law without many changes.

We frankly don’t like hate crimes, but from a jurisprudence perspective there really isn’t any problem with them. More on that below. At the same time, however, this particular bill is problematic. More on that below, as well.

The bill, H.R. 1913 (text here), imposes up to 10 years in prison if you to commit violence because you thought someone was black or gay or whatever. (It also authorizes grants of up to $100,000 per year in federal money to the various state, local and tribal law enforcement agencies. The money is to go towards investigating and prosecuting hate crimes, and programs to reduce the occurrence of hate crimes.)

In the form passed by the house, the hate crimes portion of the law would now do the following:

1. With respect to:
Religion, and
National Origin

…A. In general.

………1) If you attempt to cause bodily injury to someone, or if you willfully cause such injury, AND

………2) If you did so with fire, a gun, a dangerous weapon, an explosive, or an incendiary, AND

………3) If you did so BECAUSE of the actual or perceived race/color/religion/national origin of the victim, THEN

………4) Your maximum sentence goes up to 10 years.

…B. If someone died or you tried to kill, or you kidnapped or tried to kidnap someone, or you also committed or tried to commit aggravated sexual abuse, THEN

………1) There is no maximum sentence, and you can get anything up to life in prison.

2. With respect to:
Religion (again),
National Origin (again),
Gender (I guess they’re referring to biological sex, as opposed to foreign grammar),
Sexual Orientation,
Gender Identity, and

…A. In general.

………1) The exact same stuff as above applies, but only if you acted under any of these circumstances:

…………..a) Either you or the victim crossed state lines or a national border.

…………..b) Either you or the victim used an instrument of interstate or foreign commerce.

…………..c) You used a weapon that had traveled in interstate or foreign commerce.

…………..d) Your conduct interferes with the victim’s economic activity.

…………..e) Your conduct otherwise affects interstate or foreign commerce.

Finally, to forestall the criticisms that hate crime laws infringe on First Amendment rights, the statute says it shall not be construed to prohibit any expressive conduct protected by the Constitution. Nor to prohibit any activities protected by the Constitution.

* * * * *

So, what does this mean?

Critics of hate crimes laws, like Rep. Lamar Smith (R-TX), say that such laws undermine the principal of equal justice for all. “Justice will now depend on the race, gender [gah!], sexual orientation, disability or other protected status of the victim,” Smith said during debate. “It will allow different penalties to be imposed for the same crime.” House Republican Leader John Boehner of Ohio said that this “places a higher value on some lives compared to others. That is unconstitutional, and that is wrong. All life was created equally, and all life should be defended equally.”

Such criticisms miss the point, a little bit.

As written, this law does not put greater value on a victim’s life because of their race, sex, religion, or what have you. The victim’s actual status has nothing to do with it. The law doesn’t care if the person actually was black or female or Methodist — it only cares whether the offender thought so.

The focus is not on the victim. It is on the offender’s state of mind. In other words, all this law does is insert a new form of mens rea into criminal jurisprudence.

Mens rea is the legal word for an offender’s state of mind, and is almost always a crucial element of a crime. A harmful act that was committed without the requisite mental state is not going to be a crime. For the most part, society doesn’t want to punish people when they weren’t trying to do something wrong, or when they weren’t breaching any duty to be careful.

The traditional mens rea have coalesced over time into a continuum that looks something like this:

…FAULTLESS. There is no culpability here. You weren’t doing anything wrong, or you can’t be held accountable for your actions. Society doesn’t want to punish you, because it would serve no purpose. It would be mere retaliation, and that’s just not civilized. (Don’t start thinking we’re too evolved, however — we do still have STRICT LIABILITY laws, like statutory rape and certain weapon and drug possession crimes, where society couldn’t care less whether you meant to do it, or even knew that you were doing it. So we still have some holdovers from the old “eye-for-an-eye” days of punishing even mere accidents.)

…NEGLIGENT. This is the lowest level of culpability. You were supposed to be careful, and you weren’t and now someone got hurt. You weren’t trying to do anything wrong, but you did anyway, and you ought not to have. Society wants to punish you for this, but only a little. We want to make sure people are careful when they’re supposed to be. Not paying enough attention while driving, then running over a pedestrian, is a crime of negligence.

…RECKLESS. This is punished somewhat more severely. You knew what you were doing might hurt someone, but you did it anyway. Society wants to punish you more for this, because you were just indifferent to the consequences of your actions. You were putting your own interests above those of the rest of us, and someone could have gotten hurt. Shooting a gun indiscriminately out a window is reckless. Driving so fast that you can’t safely react is reckless.

…KNOWING. This is even more severe. When you were reckless, you disregarded the mere chance that something bad might happen. But when you had a pretty good reason to believe that something bad would happen — even though it’s not what you were mainly trying to accomplish — then society wants to punish you much more. Let’s say you caught your spouse cheating on you, so that Saturday night you cut their brake lines. You’re trying to kill your spouse when they take their mother to church the next morning. The resulting accident kills your mother-in-law as well. You weren’t trying to kill her, but you knew she could die as well.

…PURPOSE. This is the most severe. You were actually trying to do it. Society punishes intent the most severely of all, as it’s the most culpable of the mental states. When you severed your spouse’s brake lines in the example above, you intended to kill your spouse.

There are other mens rea out there, which sort of come at this continuum from right angles. ATTEMPT is the big one. It’s a form of intent, of purpose, but it slips in between each of the standard categories. You were trying to commit a crime, but for whatever reason it failed. If you tried to shoot a gun randomly out the window, but it jammed, you’re guilty of an attempted crime of recklessness — you intended to commit a crime with a reckless state of mind. If you tried to purposely shoot someone, but the gun jammed, you’re guilty of attempted murder, attempting to commit a crime with an intentional state of mind. Attempts aren’t punished as severely, because the state of mind is not the only reason for enhanced punishment — the events themselves also play a part in determining culpability (a fact that some on the Supreme Court seem to have forgotten).

So all “hate crimes” laws like this one do is define a new mens rea. This one does not fall within the standard continuum, however. It does not care so much whether you were negligent, reckless, knowing or purposeful. It only cares what you believed to be true of the victim, and that you acted because of that belief.

This really doesn’t even come at the continuum from right angles. It’s wholly separate and apart. It’s a one-off. It’s not even on the same piece of paper. It’s a new kind of mens rea, because it has less to do with your mental state with respect to your actions, and more to do with the reasons why you’re committing them in the first place.

But does that make this new mens rea improper? Not really. It just so happens that, over the past couple hundred years, our national culture has gradually come to consider harmful — actually harmful to society — mistreating people based on attributes beyond their control. People can’t help what color they are, or where they were born, or what religion they were raised in, or what turns them on, or whether they have Down syndrome. Mistreating them because of such things is, to modern eyes, harmful to society.

Society punishes harm to itself by criminalizing it. So it’s a simple step to criminalize mistreating people because you thought they possessed certain attributes beyond their control. That belief, the reason for the criminal act, is just a new form of mens rea, and a harmless one at that.

* * * * *

However, just because we don’t have a problem the concept of this hate crime law, that doesn’t mean we think it is a good one. In fact, there are significant problems with it.

For example, there is a real vagueness with respect to religion and national origin. On the one hand, they’re the same as race, and don’t require additional circumstances. On the other hand, they are grouped in with the new categories requiring additional circumstances. It has to be one or the other, and this vagueness could make hate crimes based on religion and national origin void, under the Rule of Lenity.

Of course, the Commerce-Clause-related circumstances could make this merely a distinction without a difference. But if it there was no difference, then why did Congress go to the effort of writing those conditions for certain victims, but not for others? A savvy defense attorney might well argue that these particular hate crimes are unenforceable.

In addition to this unnecessary vagueness, the law is also overbroad.

Let’s back up. The policy underlying this (and pretty much any other American law against discriminatory behavior) is that we don’t want people being singled out for mistreatment for reasons they have no control over. Again, people can’t help what race they are, so it’s bad to mistreat them for it. It now seems pretty clear that people can’t help what their sexual proclivities happen to be, so it’s bad to mistreat them for that as well.

But there are sexual proclivities that society still wants to punish. There are those who can only get sexual gratification from acts involving children. For the most part, they can’t help this, which is why they usually cannot be rehabilitated. So we have two competing interests here: society’s desire to protect those who can’t help being the way they are, and society’s desire to protect children from sexual predation. It should be obvious to most who read this what the policy ought to be on this. But this law doesn’t go there.

So you could have a situation where a father catches a sexual predator making moves on his young child, and beats him severely with a metal baseball bat. The act was committed primarily because of what the victim was, and it was based on his sexual orientation, so now the father is facing prosecution for a hate crime in addition to the assault.

Or you could have a religion whose believers are sworn to kill all redheads on sight. You happen to be a redhead, and members of that religion just established a temple down the street from your house. You willfully torch the temple, and someone gets hurt. Now, in addition to the arson, you’re looking at a hate crime.

These are extreme examples, to be sure. It’s not something that’s likely to happen. It merely shows that the law is inartfully written, and that it is conceivable that it could therefore be applied in ways that were not contemplated by Congress. These merely illustrate that the law could serve to protect those whom the law does not wish to protect, and penalize those whom the law did not wish to penalize.

These examples also raise a policy question as to defenses. In the first, the father could raise a defense of temporary insanity to challenge the assault claim. In the second, the arson might be challenged with perhaps a Bush-doctrine preemptive self-defense.

But is there room for such defenses in this law, the way it’s written? Temporary insanity is a defense to mens rea. It posits that the necessary mental state did not exist, because circumstances were such that the offender could not have been thinking that way. But here, the temporary insanity would be proof that the necessary mens rea did exist. It’s the result of the knowledge that the victim was a sex offender, and tends to show that the violence was inflicted because of it.

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In short, we don’t have a legal or constitutional problem with hate crime laws. They actually seem to be a natural extension of our criminal jurisprudence. But this one seems to have been passed without anyone actually reading it (not surprising, as it hardly spend any time in committee).

An administration and the same-party majority in Congress just want to push a law through, and so they will. And they will wind up passing a law that probably doesn’t mean what they wanted it to mean, and which might not stand up under scrutiny.

So what’s new?