pageok
pageok
pageok
Hate Crime in North Carolina?

An attempted murder of nine people.

I'm not wild about special treatment for hate crimes (and, of course, if the story is accurate this is more than just a hate crime); but those who think hate crimes are a separate and important category should agree that this does indeed fall into that category.

UPDATE: I was on the run this morning, and didn't have time to go into details; and I also thought the reason this was a hate crime was pretty clear. Some of the comments question this, though, so let me elaborate.

Hate crime laws generally impose special penalties on criminals who select their targets because of (among other things) the targets' race, religion, or nationality. The attacker here was apparently motivated by his upset at the supposed mistreatment of Muslims. It thus seems no accident that he targeted for his attack a place that's frequented by members of other religious groups. I realize that most places in America are frequented by non-Muslims; if he hadn't told us his motives, we might assume that he was just choosing victims for reasons unrelated to religion. But he has told us his motives, which explain why he drove into a people at a university rather than people outside a mosque or people outside a local Muslim store -- he wanted to retaliate against non-Muslims, so he drove into a predominantly non-Muslim crowd.

Depending on how nationality is defined for purposes of hate crimes laws, an attack aimed at Americans because they are Americans may also be a hate crime on that score. But an attack aimed at a group largely consisting of non-Muslims (or non-Christians or non-Jews) because they aren't Muslims -- and we know this was its aim because it was motivated by the attackers' feeling that Muslims were being mistreated, presumably by non-Muslims -- is a hate crime.

By way of analogy, imagine that a Christian became upset by the supposed mistreatment of Christians (presumably by non-Christians), and rammed his car into a crowd of people who are predominantly non-Christian (or at least not observant Christians). It would seem to me pretty clear that his choice of targets was likely motivated by the targets' religion -- otherwise how would his attack be connected to his stated motive?

Naturally if it turns out that the attacker's motives were different, for instance if it turns out he just want to kill a random bunch of people, or because he was somehow upset at the mistreatment of Muslims by Muslims as well as by non-Muslims -- and decided to act on that by ramming his car into a crowd of predominantly non-Muslim Americans -- the analysis might be different. I'm writing, though, based on what the story reports.

Politically Correct:
You don't understand. Charges of "hate crimes" are only to be applied against white males of European descent. Maybe an exception can be made in this case, because he was driving an S.U.V.
3.4.2006 10:05am
Fishbane (mail):
He graduated in December 2005 with majors in philosophy and psychology.

Well, there's your problem...
3.4.2006 10:16am
Cathy (mail) (www):
I disagree that it necessarily falls into that category.

Where's the line between hate crime and a crime committed because of mental illness? Crimes of the latter type can often appear to be of the former - even to the perpetrator him or herself - but are really caused by the mental imbalance of the culprit and not some rationally-formed intent to act against hated people.

The article said they would be looking into psychological reasons for the crime, and it strikes me that there's something there. Even as hate crimes go it doesn't seem to really bear the hallmarks of rationally-planned ones. The targets were random, the means were imprecise... It seems like a crime caused by someone who lacked the personal mental capacity to deal with his own anger except by warping it into this context. And not, by contrast, the deliberate crime of someone whose consciously-chosen political orientation incorporates the position that taking violent action against certain people is an appropriate articulation of that opinion.

Granted this might be a fine line, and I'm not a psychologist so I can't define where it would be any better, but from what I have gathered it does strike me that someone with this expertise might well be able to draw one.
3.4.2006 10:36am
Tom952 (mail):
Muslim murderers demonstrate over and over that they are oblivious to the concept that the ones they kill had nothing to do with the prior acts supposedly committed by others that enraged them.

Why not ban the preaching and practice of this mind-polluting doctrine in the U.S.? Did we allow Nazis to openly recruit and advocate their cause in the U.S. during WWII?
3.4.2006 10:44am
Christopher M. (mail):
One would hardly have to be in the grip of lefty political correctness not to view this as an obvious "hate crime."

There's a decent case to be made for limiting the definition of "hate crime" to a crime motivated by some characteristic of the victim that falls into a category we deem especially worthy of condemnation (race, religion, etc.). And it's not clear from the article that Taheri-azar intentionally targeted white people, or Christians, or any other identifiable group other than whatever pedestrians happened to be in this area at the time. (He may well have, but that needs further proof.)

Imagine an anti-homosexual bigot who, while driving, hears a radio report about some new legal victory for gay marriage. He's so enraged by the story that he just loses it, and takes out his anger by deliberately swerving into the path of an oncoming car. The little old (straight) lady driving that car is killed. Hate crime? I wouldn't say so.
3.4.2006 10:47am
c.f.w. (mail):
All crime is hate crime - arising from mens rea, scienter, guilty knowledge. Let's focus on deterring by swift and certain punishment. Throwing on extra years based on "hate" just tends to make martyrs, yes?
3.4.2006 11:01am
Medis:
Maybe I'm missing something, but this doesn't seem like a "hate crime" (like Christopher M., I would have thought that would require targeting the victims because of some perceived characteristic within a certain class).

Rather, I'd say this sounds like "terrorism" (of the "lone wolf" sort). And I'd be interested to find out if Professor Volokh supports "special treatment" for terrorism crimes.
3.4.2006 11:07am
Medis:
Incidentally, I'm not sure anyone is up for a general hate crime discussion, and I probably have a naive view about all this since I haven't studied the problem much. But I always wonder about this hypo:

Person A spraypraints a heart containing his initials and the initials of his girlfriend on the side of a Jewish deli.

Person B spraypaints a swastika next to Person A's heart.

Question: should we treat these as identical cases of vandalism? Including the same penalty on sentencing?

Of course, maybe we should indeed treat them identically on the basis of some sort of derived First Amendment notion that we should not distinguish these acts by their communicative content. But that conclusion doesn't seem obvious to me, given that the speech was unlawful to begin with.
3.4.2006 11:16am
digital commuter (mail):
I second Tom's comment:



"Tom952 (mail):
Muslim murderers demonstrate over and over that they are oblivious to the concept that the ones they kill had nothing to do with the prior acts supposedly committed by others that enraged them.

Why not ban the preaching and practice of this mind-polluting doctrine in the U.S.? Did we allow Nazis to openly recruit and advocate their cause in the U.S. during WWII?"
3.4.2006 11:38am
digital commuter (mail):
Here is a news item that reads like a contemporary joke:"Arguing men put on separate flights

FROM: The Asianage

(3/2/2006 10:53:46 PM)

Athens: An Orthodox Christian and a Muslim man who were travelling to Germany were forcibly put on separate flights after they began fighting over their religious beliefs at the international airport here, reports said on Thursday.

The men, bound for a flight to Frankfurt, began arguing on the bus as they were being transferred from the terminal to the plane.

According to reports, the two men started fighting over who was the more religious of the two when the Muslim man, fed up with being attacked, suddenly exclaimed that he was going to blow up everyone on the plane.

Security officials briefly detained both men and put them on separate flights."

Yea, I'd say the Muslim was the more religious of the two.
3.4.2006 11:41am
Fishbane (mail):
Of course, maybe we should indeed treat them identically on the basis of some sort of derived First Amendment notion that we should not distinguish these acts by their communicative content. But that conclusion doesn't seem obvious to me, given that the speech was unlawful to begin with.

I'm not sure that the unlawfulness means we should feel free to make some speech "more unlawful". In fact, I'm pretty uncomfortable with hate crime laws.

I believe the notion is that some particular classes of bad actions, left unchecked, develop momentum that lead to hugely bad outcomes, so those things should be "more suppressed" than merely criminal behaviour. The KKK in the south, for instance. The general notion is also behind, e.g., Germany's criminalization of certain forms of assertions about history and certain types of political speech. Most honest proponents of such things acknowledge that such law is special-case, but the problem of band-aid law is that it tends to lead to more of the same.

I'm generally of the opinion that one's bias should be against such law, but in the case of Germany after WWII, I can see it. I also think that law should have gone away by now.
3.4.2006 11:42am
Unnamed Co-Conspirator:
Medis, it's true that neither is protected, but what if, in your hypothetical, defacement of private property isn't punishible as a crime, except where the defacement is proven to be hateful speech, such as a swastika. So, the first bit of vandalism would not punishable as a crime (only a civil remedy is available, in favor of the property owner), whereas the second would be, because of the content of the expression. Does that make the First Amendment issue a bit clearer? I don't think free speech issues can be disregarded just because the speech isn't protected. Maybe it's not quite appropriate to view speech as simply protected or unprotected, but rather as speech or action, with the objective meaning of the defacement in your hypothetical being considered in sentencing, perhaps as an indicator of whether the offender will commit similar acts in the future, rather than merely punishing the offender for expressing a hateful idea.
3.4.2006 11:47am
Medis:
Fishbane,

I think it is important to distinguish "criminalization" from penalty enhancement, even if we end up drawing the same conclusion in the long run. In other words, to me it makes a difference whethere you are taking an otherwise lawful speech act and making it criminal, or whether you are talking about how to punish an already unlawful speech act.

So, what about my hypo? You are the sentencing judge--do you give Person A and Person B the same sentence?
3.4.2006 11:51am
Medis:
UCC,

We cross-posted, but as I noted above, I think we need to distinguish criminalization from enhancement.

Anyway, I'm not sure we can say Person B is somehow more likely to commit the crime again than Person A. Person A was motivated by love, and Person B was motivated by hate, and both sorts of motivations can be powerful and long-lasting.

Frankly, that sounds like a rationalization to me. Personally, I feel that what Person B did was morally worse than what Person A did, and the retributivist part of me thinks that it would be very unfortunate if Person A and Person B had to receive the same punishment. Maybe that is what we have to do, however, to preserve our strong pro-speech norms. But I think we need to face the issue as honestly as possible while making that determination.
3.4.2006 11:59am
Dylanfa (mail) (www):
The hated class is pretty obviously defined as "non-Muslims." Randomly speeding into a crowd outside a college basketball game is hardly an irrational way to go about killing such people.

Certainly there's no reason why he had to state a declared religion he particularly hated. If a Klansmen fires randomly into a crowd that's largely black and hispanic are you going to discount the hate motive because there were a few whites he might have hit, or because he wasn't specifically after one particular non-white group? Of course not.
3.4.2006 12:05pm
Medis:
Dylanfa,

I'm not sure that is an accurate description of his thought process. He claimed he was doing it for the sake of "retribution". I'm not sure the religions of the people he attacked were relevant at all to him.

And it might be worth keeping in mind that Muslims are often specifically the targets of Muslim terrorists, not just people caught in the crossfire.
3.4.2006 12:13pm
NYU 1L:
Why a hate crime and not as terrorism? I don't know if North Carolina has a terrorism statute on the books, but at least New York has a statute passed after 9/11. It allows a charge of terrorism for crimes committed with an intent to intimidate or coerce the civilian population. Membership in an organized terrorist group isn't an element of the crime, and shouldn't be. This is textbook terrorism, not just a hate crime.
3.4.2006 12:21pm
margate (mail):
What's interesting about this case is that while traditional "hate" crime legislation focuses on a specific, identifiable victim characteristic to frame the defendant's motive, here the defining characteristic fueling the thread is a defendant-specific characteristic.

Typically in hate-crime cases, the activating "hate" characteristic of the victim mirrors some psychological (i.e., "belief-system") characteristic of the defendant -- as in "I believe in Nazism, so I hate Jews/Blacks/etc." In a word, there's some sort of one-to-one relationship between the defendant's political/psychological views and the victim.

Here, an Iranian-born, American-raised Muslim (who's perhaps an American citizen) allegedly commits a crime (as distinct from the act, which seems not to be in question) because he hates American policy and its impact on Muslims.

I don't see the "one-on-one" connection between the defendant's motive and any particular victim characteristic, except they happened to be in the United States at the time. [In this respect, the defendant's act is, on a thankfully much smaller scale, identical to the 9-11 hijackers.]

So can -- and should -- Congress pass a law that read, in essence, "any person who intentionally injures another person, or attempts to do so, in violation of any state or federal law prohibiting physical or economic violence, and whose motivation for such act is a disagreement with American foreign policy, shall be sentenced to up to life in prison or, if death results, death."

But wouldn't such a federally-defined crime be the very definition of terrorism? A politically motivated act of violence intended as retribution for real or perceived injustices against a particular group inflicted by some government which act of violence is directed at individuals with no apparent connection to the governmental action except being present in that jurisdiction?

So why is this guy being held in jail? Why isn't he going directly to GitMo? [It's been said that GitMo is only for terrorists caught abroad. I say that's an arbitrary distinction in light of the administration's Art. II C-in-C arguments. GitMo, or extraordinary rendition, per the administration's white paper, is entirely in the hands of the C-in-C.]
3.4.2006 12:25pm
Medis:
NYU 1L and margate,

And I again wonder, as I asked above, whether Professor Volokh would favor special treatment for terrorism crimes.
3.4.2006 12:41pm
Dave Hardy (mail) (www):
Doesn't sound like a hate crime to me. He just wanted to kill a bunch of people, without knowing anything about them (there might have been muslims in the crowd for all he knew). So we can be relieved that, while he nearly killed nine people, at least he didn't commit a hate crime!
3.4.2006 12:45pm
Fishbane (mail):
I think it is important to distinguish "criminalization" from penalty enhancement, even if we end up drawing the same conclusion in the long run.

This threatens to become a much wider discussion. Suffice to say that I'm uncomfortable with turning judges into role playing gamers, with charts of enhancements and little discretion.

To answer your hypo, I might well give the racist a longer sentence than the vandal. The problem sets in at the policy level: I wouldn't want to be forced to give that sentence. If the offender is a 15 year old with an authority issue trying to shock people, I see that as distinguishable from a 45 year old with a history of violence who performed the same act.

True story: growing up, some pals of mine and I ran several issues of a 'zine. It was heavy on surrealism, subversive intent and sillyness, and probably would have gotten us expelled had we been in highschool these days. The last issue of it had some rather awful racist stuff involving Hitler imagery and sexual content in it - a friend of mine stuck it in at Kinkos at the last minute. It killed the project, and put me in a bit of an uncomfortable situation with people who knew I started the whole thing. The thing is, the person who did it isn't a racist. He just thought it was funny and shocking, and was a bit naive about just how shocking it was.

None of this was illegal, of course. But I don't trust policy to inform the difference between this sort of misguided behaviour and actual racists of the sort that lead to destabilizing effects.
3.4.2006 12:51pm
Dave Hardy (mail) (www):
But I always wonder about this hypo:

Person A spraypraints a heart containing his initials and the initials of his girlfriend on the side of a Jewish deli.

Person B spraypaints a swastika next to Person A's heart.

Question: should we treat these as identical cases of vandalism? Including the same penalty on sentencing?

Of course, maybe we should indeed treat them identically on the basis of some sort of derived First Amendment notion that we should not distinguish these acts by their communicative content. But that conclusion doesn't seem obvious to me, given that the speech was unlawful to begin with.


I don't see a real first amendment issue as to giving the first guy a fine and restitution and the second jail time. The speech, as it were, is unlawfully created. The difference in content relates to its intended impact on the victims. If a kidnapper threatens to mutilate his victim, with intent of getting money more quickly from the family, I can't see where upping the sentence on that is a first amendment content-based discrimination.
3.4.2006 12:52pm
JJ Stokers (mail) (www):
Im not an atty, but from what we're told the victims werent targeted for their race, but for their perceived hatred of a certain religion. Isnt all violence hatred anyway?!

Make The News Better
3.4.2006 1:37pm
Medis:
Fishbane,

I didn't have any particular mechanism in mind for giving Person B a higher sentence. For example, the mechanism could be in the nature of a discretionary factor that a judge could consider during sentencing. Conversely, considering such a factor could be impermissible even in a discretionary sentencing scheme. So, the question remains whether one thinks that such a factor should be a permissible consideration--however instantiated--during sentencing.

Dave Hardy,

I certainly think that there likely is a difference in intended impact in this hypo. For example, Person A probably doesn't even care what impact his act has on the deli owners, whereas Person B likely intends to have an impact of some sort on those deli owners. There would also undoubtedly be different intentions with respect to the rest of the community, and so on.

But is that difference enough? I'm not sure that we can say that Person B intends to threaten the deli owners. Suppose we just think that his intent was to make them feel unwelcome in the community. In many contexts, I'd think speech with such a message (eg, he says in a public forum, "Jews are unwelcome in this community!") would be protected from punishment by the First Amendment, unlike a threat.

It appears to me, therefore, that this is the question: done apart, Person B would be punished only X amount for an "ordinary" act of vandalism, and he could not be punished at all for stating the message "Jews are not welcome here" if he did so in an otherwise lawful manner. So, when the unlawful act and this same basic intent are combined, can and should Person B be punished more than X+0, meaning X?
3.4.2006 1:51pm
anonymous coward:
"Where's the line between hate crime and a crime committed because of mental illness?"

Fuzzy as hell. So many people get into racism and terrorism for all the wrong reasons!
3.4.2006 1:57pm
llamasex (mail) (www):
Politically Correct:
You don't understand. Charges of "hate crimes" are only to be applied against white males of European descent.


Table 4. - Number of Known Offenders by Race, 1995 Suspected Offender's Race Number of Known Offenders
Total 8,433
White 4,991
Black 2,253
American Indian/Alaskan Native 45
Asian/Pacific Islander 211
Multi-Racial Group 318
Unknown 615

Law enforcement agencies reported the number of known offenders for 62 percent of hate crimes coming to their attention in 1995. Among the 8,433 known offenders reported to be associated with hate crime incidents, 59 percent were white, and 27 percent were black. The remaining offenders were of other or multi-racial groups.


http://www.fbi.gov/ucr/hatecm.htm#race
3.4.2006 2:13pm
dick thompson (mail):
JJ Stokers,

The people he ran down were people he did not know and who were not even on the road. The area where he hit them was accessibly by a small service road. They were in an enclosed area which is the only reason they were not killed. They were just sitting there talking, not demonstrating or carrying signs. In what way could he be targetting them for their beliefs or for their saying anything at all about him? This dingbat just aimed for the first group he found and he is just lucky he did not kill anyone.
3.4.2006 2:24pm
therut:
I think it sounds like they are going to charge him with terrorism.. Why not an act of war too. News conference at 2:00 EST. I think I caught it that there has been one death.
3.4.2006 2:34pm
PersonFromPorlock:
Waitaminnit! If he had a degree in philosophy, why wasn't he driving a taxi?
3.4.2006 3:09pm
SLS 1L:
So, what's a hate crime? An official comment in the USC gives:
§ 3A1.1. Hate Crime Motivation or Vulnerable Victim

(a) If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person, increase by 3 levels.
18 U.S.C. Appx § 3A1.1. The Hate Crimes Statistics Act, P.L. 101-275, tells us that:
Under the authority of section 534 of title 28, United States Code, the Attorney General shall acquire data, for each calendar year, about crimes that manifest evidence of prejudice based on race, religion, disability, sexual orientation, or ethnicity . . .
More informally, Wikipedia tells us that:
Hate crimes are crimes (such as violent crime, hate speech or vandalism) that are motivated by feelings of hostility against any identifiable group of people within a society.
I don't see that the crime in question obviously fits into any definition of this sort (though it might, depending on facts not presented in the article).
3.4.2006 3:18pm
Dave Hardy (mail) (www):
Im not an atty, but from what we're told the victims werent targeted for their race, but for their perceived hatred of a certain religion.

Hmm... does this make it an antihate crime?
3.4.2006 3:58pm
digital commuter (mail):
This story isn't being widely reported in the main stream media.

Must not be important!
3.4.2006 4:01pm
jvarisco:
Americans are not a race, nor any identifiable group without this society; they are the society. It might make sense to charge him with treason - but this is hardly a hate crime. The point of such legislation, as I understand it, is to reduce crime against specific groups within our society; you might as well accuse Timothy McVeigh, or for that matter anyone who murders a substantial number of Americans, with a hate crime.
3.4.2006 4:36pm
Dave Hardy (mail) (www):
I certainly think that there likely is a difference in intended impact in this hypo. For example, Person A probably doesn't even care what impact his act has on the deli owners, whereas Person B likely intends to have an impact of some sort on those deli owners. There would also undoubtedly be different intentions with respect to the rest of the community, and so on.

But is that difference enough? I'm not sure that we can say that Person B intends to threaten the deli owners. Suppose we just think that his intent was to make them feel unwelcome in the community. In many contexts, I'd think speech with such a message (eg, he says in a public forum, "Jews are unwelcome in this community!") would be protected from punishment by the First Amendment, unlike a threat.

It appears to me, therefore, that this is the question: done apart, Person B would be punished only X amount for an "ordinary" act of vandalism, and he could not be punished at all for stating the message "Jews are not welcome here" if he did so in an otherwise lawful manner. So, when the unlawful act and this same basic intent are combined, can and should Person B be punished more than X+0, meaning X?


Why not? The intended effect on the victim is considerably different. Persons A intended no harm and inflicted but little. Person B means, at the very least, to drive (or at least to nudge out) a minority from the community.

I don't see where content neutrality is properly applied here. It is not a universal first amendment standard (the exceptions for pornography, fighting words, incitement, are *all about* content. Ditto the civil standard for applying "provably false" requirements defamation because because an issue of public importance was being discussed. Or for that matter "campaign reform" laws, which apply only if a candidate is the person being praised).
3.4.2006 4:38pm
greggerupdike (mail):
Ten years ago, a student at UNC law school walked up Franklin Street (the main thoroughfare in Chapel Hill) with a high powered rifle shooting people indiscriminately. Now how is today's example any different? Frankly, the crime speaks for itself. Does it really matter what his motive was? Should not he be prosecuted to the fullest extent?

I have never understood the impetus behind hate crime laws. A crime is no more or less nefarious because the criminal hated someone for their race, sexual orientation, gender, or nationality. A crime is a crime, and criminals should be punished to the fullest extent of the law for engaging in such acts.
3.4.2006 4:50pm
therut:
Gregger------Hate crime legislation makes some people FEEL better. That is it in a nut shell. Something to complain about and say SEE I TOLD YOU LOOK AT THIS.
3.4.2006 7:17pm
JDNYU:
SLS,

Adding some emphasis to your quote:

...the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person, increase by 3 levels.


If he 1) wanted to harm Americans and 2) assumed that he was going to run into a bunch of Americans even though he didn't actually see them prior to deciding to run them down it seems like this could qualify. It depends, I think, on how strictly you construe the "intentionally selected" requirement. I.e., was the fact that there was a very high probability of running down Americans at UNC sufficient to qualify as "intentionally selecting" that group (which, for the same reasons, he perceived to be comprised of Americans)? See Dylanfa's post, which I agree with, suggesting that it is.
3.4.2006 8:20pm
Mark H.:
I'm not a lawyer, nor a law student, so am lacking sufficient knowledge for articulating a sound position against "hate crime" legislation, but it seems to me that such laws (meaning also rules/standards against "hate speech" in academia, local government etc. more so than criminal, but in the same vernacular) greatly undermine our freedom of expression and that of our press.

By that latter point I mean: don't these laws open the doors wide for lawsuits preventing the publishing of "cartoons" of any ilk that suits the fancy of the "offended?" Not that it matters in the current "cartoon" brouhaha, since our press is buckling under voluntarily, but do we really want them to have to buckle under involuntarily if they eventually grow a collective spine on another issue? Indeed, don't we potentially excuse/prevent them from ever growing one?
3.4.2006 9:22pm
jvarisco:
Mark) As I understand it, hate crimes do not make anything currently legal illegal; they simply increase the penalty if crimes have been committed due to bias. The problem is that they differentiate based on viewpoints - it is worse to kill someone because of their race than to steal their wallet, which implies that it is somehow less bad in the second case (and thus suggesting that murder in some circumstances is not as bad; murder is bad not because of the motivation, but because for society to function no individual can be allowed to take the life of another).
3.4.2006 11:38pm
Visitor Again:
On hate crimes;

The murder of six million civilians in wartime is barbaric. The murder of six million people because they are Jews is even more horrific. Genocide is even worse than nass murder. It strikes a discrete blow at civilized social order, for it embodies the vile proposition that some lives are worth less than others because of the victim's status.

Each hate crime is a little act of genocide or a little Holocaust (and please do not take that as an effort by me to minimize the unique horror of the Holocaust). Furthermore, hate crime is infectious in a way ordinary crime is not. It is a step toward genocide, even if only a minor one.

To tack on additional punishment for a hate crime does not imply that the hate crime victim's life or limb is worth more than the life or limb of someone murdered or assaulted for non-hate reasons. It only says that the crime represents an additional injury to the social order beyond the bare taking of the life or the bare assault. We, both as individuals and as a society, have an interest in punishing hate crimes that goes to the hate that motivates the crime as well as to the underlying crime. The hate is not the crime, but it aggravates the crime. One of any race, religion, ethnicity or sexual orientation--majority or minority--may be the victim of a hate crime; the hate crime designation does not discriminate on that basis.

The above does not try to address when, if ever, mere hate speech should, if ever, constitute a crime.
3.5.2006 5:48am
Medis:
Dave Hardy,

I'm tempted to agree with you, but I think we have not quite yet articulated a satisfactory rationale. I agree that we do make content distinctions when arriving at certain permissible prohibitions on speech, but I'm trying to construct a hypo where the communicative content of the act, if done through otherwise lawful speech, would not be subject to prohibition. So, it is at least not obvious that an intended communication that could be carried out through lawful speech can be the ground for enhanced punishment when the speech is otherwise unlawfully done.

But maybe Visitor Again has supplied a sufficient answer. Certainly I think that post captures my moral sense, and if we can divorce the rationale from the actor's intention to send some sort of message, and talk simply about harm to society, we may avoid the free speech problem. Still, I think some might point out that the notion of attacks on the social order could be pretty broad, and they would worry about a similar rationale being used to criminalize speech.

Anyway, I'm just thinking these ideas through on the fly. But I do think there is a real issue here.
3.5.2006 9:28am
Medis:
On Professor Volokh's update:

I have to say I don't really buy his analysis. I think his hypo is misleading. A more appropriate hypo would be something like that a person in a country which has only a minority of Christians is upset by how he thinks his country treats Christians, so he rams a car into a crowd of people in the name of "retribution". In such a hypo, I again don't think it would be appropriate to say this person was targeting non-Christians, because he doesn't appear to care whether or not anyone in the crowd is a Christian. Instead, this again seems to be just a form of terrorism, where the targets are essentially random.

As for the motivation, terrorism, particularly of the "lone wolf" variety, is often not subject to in-depth rationality analysis. But I gather the idea is something like that such a shocking and horrifying act will cause people in general to reconsider their society's policy on some issue. In that sense, the randomness and anonymity of the targets is part of the plan, because it communicates that the attack is an attack on all of society, not just these particular people.

Finally, like jvarisco, I don't think that in the United States we could treat "American" as a "national origin" category for hate crimes purposes (of course, Americans could perhaps be subject to such hate crimes in other countries). Indeed, I would point out that the word "origin" itself implies a difference between current status as an American and the category in question.

More broadly, I do wonder why Professor Volokh insists on identifying this as a "hate crime", rather than as "terrorism". And I am disappointed that he did not address my question--whether he would favor special treatment for terrorism--because I think it provides a useful point of comparison for the hate crimes issue.
3.5.2006 9:56am
WB:
3.5.2006 10:52am
JDNYU:
Medis,

I don't read EV's post as advocating for or against hate crime laws. He's suggesting that this case could be covered by the current hate crime laws that are on the books.

You say,

Finally, like jvarisco, I don't think that in the United States we could treat "American" as a "national origin" category for hate crimes purposes (of course, Americans could perhaps be subject to such hate crimes in other countries). Indeed, I would point out that the word "origin" itself implies a difference between current status as an American and the category in question.


How does "origin" imply such a difference? I'd argue that "national origin" is well-understood term that means, simply, the country where you were born.

The issue I think you and jvarisco look past (and, I believe, the primary source of criticism of these laws) is that the motive of the crimes is at issue. So, e.g., setting off a bomb that kills only Americans is not a hate crime unless that was the ex ante aim.
3.5.2006 2:46pm
jvarisco:
JDNYU) If we accept that the purpose of hate crimes is to punish prejudice within our society (e.g. America), then it makes no sense to include Americans as a protected class. The goal is to punish Americans who kill other Americans because they belong to a particular subgroup.

Visitor) There is a clear difference between an isolated incident and a systematic policy of extermination. While killing someone for their ethnicity etc. is morally problematic, it does not threaten the ability of the group as a whole to exist. The goal of genocide is not to harm a group, but to eliminate it. No one person can eliminate an entire group within society, so the threat that makes genocide so problematic does not exist. I would suggest that any killing represents an intolerable violation of the fabric of the social order; the entire social contract is based upon the idea of security from harm, and this directly violates that. The reasons for the murder do not make it any better or worse. Hate crimes punish prejudice and thoughts, not conduct.
3.5.2006 10:54pm
Enoch:
If we accept that the purpose of hate crimes is to punish prejudice within our society (e.g. America), then it makes no sense to include Americans as a protected class. The goal is to punish Americans who kill other Americans because they belong to a particular subgroup.

But not everyone in America is an American! If a non-American comes here with specific intent to kill Americans solely because they are Americans - and we have many examples of this - that should qualify as a "hate crime" in anyone's book.
3.5.2006 11:58pm
Dry Bones (mail) (www):
When I was a schoolkid, back in the US of A., they taught us about the American Revolution.

The story went like this: The Red Coats were dumb enouigh to march in formal lines and wear bright red coats.
The revolutionaries were smart, and hid behind trees.

What you describe may or may not be a hate crime, but it is, for sure, another "behind a tree" shot at us in the Jihadi war against us infidels.

Dry Bones
Israel's Political Comic Strip Since 1973
3.6.2006 5:35am
DK:
I second (or third or ?) the opinion that this is not a hate crime. IMHO the primary problem with calling things "hate crimes" or "the war on terror/poverty/drugs" or other dumb political slogans is that imprecise language makes it harder for us to think properly about the necessary solutions to public policy problems; hence we keep trying to put new generals in charge of the same "drug war", and we convince ourselves that we can get poverty and terror to surrender. In this case, why do we think it is a hate crime? Would an increase in holding hands and singing songs prevent incidents like this? Would giving this guy more opportunities to make non-Muslim friends have prevented this? Did the driver here even feel hate towards the specific people he hit?

I do use the phrase "hate crime" to refer to straight-on-gay violence, because I actually believe that hatred is involved and that getting to know gays as friends or as accepted members of your community tends to prevent violence against gays. In this case, I think "rage crime", "copycat crime", or "lone wolf terrorism" is more apt.
3.6.2006 8:36am
Medis:
JDNYU,

As an aside, Professor Volokh began his post with "I'm not wild about special treatment for hate crimes . . . ." Again, in light of this comment, and in light of the apparent facts of this case, I'd be interested to know if he favored "special treatment" for terrorism.

Anyway, you say: "I'd argue that 'national origin' is well-understood term that means, simply, the country where you were born."

OK, but how does this concept apply to "Americans"? Americans may or may not have been born in the United States. And that is because "American" is a nationality, not a national origin, and so people with diverse national origins could all be Americans.

I suppose someone might target "native-born Americans", as opposed to Americans in general, in which case there might be some sort of national origin issue. But I don't think that hypo is applicable here.

Finally, you say: "The issue I think you and jvarisco look past (and, I believe, the primary source of criticism of these laws) is that the motive of the crimes is at issue."

I'm not sure that "motive" is really the issue, and in that sense I agree that "hate crime" is an unfortunate misnomer. But certainly "intent" is an issue. However, intent is often a factor in the criminal law, and in that sense we have always considered not just the objective facts of criminal acts (the "actus reus") but also subjective factors like intent, knowledge, and so on (the "mens rea").

Which does not prove that we should be considering this particular intent-based factor. But merely pointing out that we are dealing with a subjective, intent-based, issue does not form a complete argument against using such a factor, given the basic structure of our substantive criminal law.
3.6.2006 11:04am
Houston Lawyer:
Just curious about whether the enhancement caused by "hate crime" status would ever cause a non-capital offense to be a capital offense. Also curious as to whether clearly protected speech (of the Nazi variety) could much later be used as evidence of the necessary bias. So you are free to say whatever you want, but we'll lock you up longer if you ever commit a crime later.
3.6.2006 1:31pm
JDNYU:
Medis,

As to your last point, the mens rea in this case would be the intention to run down a group of UNC students. The reason for targetting that group is property termed the motive and not, I think, an element of the mens rea. I'm not disputing that subjective factors beyond the mens rea go into sentencing levels sometimes.

I'm not trying to make a normative point, just thinking about the applicability of the hate crime provisions.
3.6.2006 1:56pm
Medis:
JDNYU,

I basically agree with your description of this case. As above, I'd also note that the intent to "run down a group of UNC students" probably wouldn't qualify this act as a "hate crime" under US law, which is why I think Professor Volokh was wrong to identify this as a "hate crime".

But suppose instead he had run into a crowd outside a church, with the intent to "run down a group of Christians." Then we would potentially have a "hate crime" under US law. But in that case, I'd still say the issue was one of "intent", not "motive". Again, as noted above, I think "hate crime" is an unfortunate misnomer in part because that name makes it sound like we are punishing the person for his feelings. However, insofar as the definition in fact depends on intent and not motive, it wouldn't matter WHY he intentionally targeted Christians--it would just matter that he did INTEND to target Christians.
3.6.2006 2:16pm
msk (mail):
What if he's willing to mow down nine people and claim a religious motive just to conceal who was his sole target? Anyone who commits a serious crime may lie repeatedly about his motives. Maybe he had no target at the scene, but his goal is to get into prison to further some plan. So, we might ask, would "crime committed with the goal of getting into prison" be an especially horrible category? Worth a lot of investigation, but we may never get inside his head.
3.7.2006 7:30pm