Tweet
One of the reasons I’ve had a hard time believing conservative “Christians” regarding their stand on a federal hate crime legislation. Many have been making the “thought crime” argument against the bill commonly known the Matthew Shepard Act because it includes protections based on the thoughts of the criminals.
The rebuttal argument against this “thought crime” meme is provided below the fold, in excerpts from the Supreme Court Of The United States’ (SCOTUS’) Wisconsin v. Mitchell. Essentially, in the SCOTUS decision defending hate crime punishment enhancements, Associate Justice Scalia wrote for the majority:
In determining what sentence to impose, sentencing judges have traditionally considered a wide variety of factors in addition to evidence bearing on guilt, including a defendant’s motive for committing the offense.…Moreover, the Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm…The State’s desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders’ beliefs or biases.
…The First Amendment, moreover, does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent. Evidence of a defendant’s previous declarations or statements is commonly admitted in criminal trials subject to evidentiary rules dealing with relevancy, reliability, and the like.
Often in arguing the “thought crime” meme, religious right figures make points to the effect of this one from Focus On The Family:
Those who speak out against homosexuality, including pastors, could face prosecution for “inciting” violence against gay individuals.
Unless the “[t]hose who speak out against homosexuality, including pastors” have committed bias motivated crimes, then any hate speech is protected speech; their freedom to make hateful statements could only be considered “evidentiary use of speech to establish the elements of a crime or to prove motive or intent” only if a bias motivated crime — likely a violent crime. Statements, such as convicted hate crime murderer Allen Ray Andrade‘s statements,…
Gay things must die.
And…
It’s not like I went up to a schoolteacher and shot her in the head or … killed a law-abiding straight citizen.
…became significant for conviction of a bias motivated crime in the Angie Zapata Hate Crime Murder Trial, and for sentencing — specifically because these statements went to a bias motivation for Angie’s brutal murder.
There are federal hate crime protections already on the books. Some of the protected classes include race and religious creed, so it’s always been rather disingenuous for religious right organizations and figures to call the Matthew Shepard Act a “thought crime” bill while not calling on repeal of hate crime laws that list religious creed within their protected classes.
Well, the first religious right figure to call for a repeal of all hate crime laws is Matt Barber of the Liberty Council. in his piece in the American Daily — entitled Repeal All ‘Hate Crimes” Laws (where oddly, Matt Barber quotes himself in third person), he states:
The U.S. Senate is preparing to vote any day on S. 909, a bill that would grant specially preferred government status to a select few citizens based on the behaviorally driven, fluid and undefined concepts of “sexual orientation” and “gender identity;” this, to the express exclusion of other citizens.While the House version of the bill was being considered, some lawmakers attempted to make it more inclusive and curtail its inherent discriminatory nature by offering an amendment that would include other identifiable groups such as veterans, the elderly and the homeless. The bill’s sponsors inexplicably rejected that request without explanation.
“This underscores the fact that all ‘hate crimes’ laws, both state and federal, inarguably advance ‘unequal’ protection of the laws,” said Matt Barber, Director of Cultural Affairs with both Liberty Counsel and Liberty Alliance Action. “This flies in the face of the Fourteenth Amendment to the U.S. Constitution.
“For this reason I am calling for lawmakers on both sides of the aisle, in Washington and around the country, to not only reject S. 909, but to begin working toward repeal of all state and federal ‘hate crimes’ laws.” …
I’d strongly disagree with his reasoning that gets him to the point where he calls for the repeal of all hate crime laws, but in calling for removal of all hate crime laws — even ones that cover the protected class to which he personally belongs — is being consistent. That he’s the first says something about the inconsistency of other religious right figures, and highlights the hypocrisy of Focus On The Family and its figurehead James Dobson, the Concerned Women For America and its figures Wendy Wright and Beverly LaHaye, and other religious right organizations and figures that haven’t made the same kind of statements that Matt Barber has now made in calling for the repeal of all hate crime statutes.
If any of these religious right organizations or leaders make such a call, it would be interesting to see how it would impact their recent alliances with African-American pastors on Homosexual Agenda™ related issues.Excerpts from the SCOTUS decision Wisconsin v. Mitchell:
In determining what sentence to impose, sentencing judges have traditionally considered a wide variety of factors in addition to evidence bearing on guilt, including a defendant’s motive for committing the offense. While it is equally true that a sentencing judge may not take into consideration a defendant’s abstract beliefs, however obnoxious to most people, the Constitution does not erect a per se barrier to the [508 U.S. 476, 477] admission of evidence concerning one’s beliefs and associations at sentencing simply because they are protected by the First Amendment. Dawson v. Delaware, 503 U.S. 159; Barclay v. Florida, 463 U.S. 939 (plurality opinion). That Dawson and Barclay did not involve the application of a penalty-enhancement provision does not make them inapposite. Barclay involved the consideration of racial animus in determining whether to sentence a defendant to death, the most severe “enhancement” of all; and the state legislature has the primary responsibility for fixing criminal penalties. Motive plays the same role under the state statute as it does under federal and state antidiscrimination laws, which have been upheld against constitutional challenge. Nothing in R.A.V. v. St. Paul, supra, compels a different result here. The ordinance at issue there was explicitly directed at speech, while the one here is aimed at conduct unprotected by the First Amendment. Moreover, the State’s desire to redress what it sees as the greater individual and societal harm inflicted by bias-inspired conduct provides an adequate explanation for the provision over and above mere disagreement with offenders’ beliefs or biases. Pp. 485-488.
And…
Moreover, the Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thought [508 U.S. 476, 488] to inflict greater individual and societal harm…The State’s desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders’ beliefs or biases. As Blackstone said long ago, “it is but reasonable that, among crimes of different natures, those should be most severely punished which are the most destructive of the public safety and happiness.” 4 W. Blackstone, Commentaries *16.
And…
The First Amendment, moreover, does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent. Evidence of a defendant’s previous declarations or statements is commonly admitted in criminal trials subject to evidentiary rules dealing with relevancy, reliability, and the like.
11 Comments
The fixation on ‘thought crimes’ and ‘unequal protection’purposely ignores some of the main reasons for the need for hate-crimes legislation – that in fact it has been found that justice is indeed “unequal” for minorities in many communities.
Just as it was quite common in my youth for black men to be found hanging from a tree in the woods, naked and castrated and for local law enforcement never to bring any charges and local juries to refuse to convict, so it was quite common for gay men to be beaten or murdered and the murderer to claim that the killing was justified because the victim had “come on” to him – again, acquitted.
On the day when everyone receives equal justice in their local communities, there will be no need for hate-crime legislation.
Until that day, those opposed are falsely claiming that without them we we all be treated equally under the law in order to justify persecution of unpopular minorities.
Well, he knows people are not targets because of religion,So it is easy for him to brush those aside. He also knows that many of the religious right do advocate for the harm that comes to LGBT people. But they also come from idiots like Andrade. It will be interesting to see how the other right wing hacks respond to his request to do away with all Hate Crime coverages.
It will also be interesting to see Bam-Bam’s response if a proposal was made to do away with the government recognizing all religious marriages and that the government will only be involved in Civil Marriage.
Still not consistent –He’ll be carrying a consistent message when he supports sentencing terrorism cases as nothing more than assault, murder, and destruction of property. To do otherwise is to support “unequal protection” in favor of people attacked (or, in the case of certain instances of “domestic terrorism” by environmentalists, inconvenienced) by individuals or groups the state disapproves of.
The chief problems are that not all speech is protected under the 1st Amendment.See Schenck v. United States. The famous case in which the S.Ct. through Holmes wrote that it is not okay to “falsely yell fire in a crowded theater.” Speech was involved in that case too, but no one today, would seriously argue its protected speech. The reasoning is that the speech has become an action. The key issue in the case as I remember was that danger was present and emminent. What can be more dangerous than murdering someone based on a particular motive? Ultimatley, criminal law already makes these distinctions in other ways between premeditated first degree murder, second degree murder, felony murder, manslaughter and other criminal forms of homocide. If we are take the “thought” crime argument seriously, there can be no intent portion of any crimes because intent is not a physical action in a crime. It’s the mental state of the defendant.
Almost every crime on the books requires one to prove the elements of the crime- for example murder requires in common law terms: 1) Intent to kill or cause grevious bodily harm 2) The action necessary to do it 3) that your act caused harm and 4) that it indeed causes the person to die. That’s not exactly the formulation- but that’s the way most criminal cases work. The idea that we can not criminalize or differentiate between crimes due to the thinking of the defendant is a lie on its face, but it is make worse with Schenck. The key element is that speech maybe limited by the harm principle. Namely, that the act of murdering or harm another here is so indevisible from the speech as to make them one. The idea that we can not take their motive into consideration in such a narrowly tailored situation because we claim it is speech is to make speech an absolute right above all others. That is not the way Constituional Law or rights are suppose to work. Nearly every right you can think of in a US Con Law right sense has some limitation upon it.
He knows people are not targets because of HIS religion.According to the SPLC, religion is one of the top three motivators in hate crimes. But they’re not his religion, so I doubt that matters to him.
I’m perfectly willingTo dismiss all hate crimes and remove them from the law of the land. We can call it by its real name instead:
Terrorism.
Now, what were all these religious right types up in arms these days about how to treat terrorists and those who aid and abet them?
Shall we begin the waterboarding or would they like to STFU now?
sidebarGood post. I was struck by this from Barber:
Religion is also “behaviorally driven, fluid and undefined”. It’s also a chosen, changeable, non-obvious behavior, as I once pointed out in a letter to the editor.
A good point – and in addition,even when equal justice is received in local communities, there will remain viable arguments for hate-crime legislation.
If one believes that the role of the criminal-justice system is to detain (and hopefully to some extent restrain) those who are dangerous to society, then someone who commits a crime showing he is a more dangerous person ought to be incarcerated for a longer term. By their nature, bias crimes are driven by a hair-trigger: the mere existence of someone who’s different from the perp in a particular way. And not only do these perps have a weak trigger – they have a strong payload when that weak trigger is tripped.
I’d say this gives the bias offender a whole new dimension of social danger, even atop the terror represented by the ordinary attacker – in turn justifying an increased sentence (at least if one accepts the prophylactic and/or deterrent philosophies of criminal justice).
Same destination, different line of argumentSome very good points there, but I’m not sure the fundies would even get a First Amendment argument heard in an actual court of law. In other words, First Amendment precedents would not get analyzed and applied, because the whole category of argument would be tossed out as inapplicable from the beginning.
This is because the speech itself isn’t the act being punished. It is indivisible from the murder, as you suggest – but not because the speaking was itself an act of legal significance. Rather, it’s indivisible in the sense of being vital evidence toward the proof of motive that would be required for penalty enhancement on the crime for which the defendant is actually being tried. And carrying on the Wisconsin v. Mitchell line of reasoning (who’da thunk we’d ever have an opportunity to quote Scalia in a positive light here?!?!?), the First Amendment doesn’t limit the use of speech as evidence toward a prohibited act any more than the Second Amendment would prohibit the introduction of a gun purportedly used to kill the victim.
A hair-splitting point, to be sure. But by putting out everything we can to show the paranoid Republanoids that we aren’t interested in punishing speech-as-such, we’d greatly enhance our chances of success on the penalty-enhancement measure. (Unfortunately, on this one, it isn’t just the fundie wingnuts wringing their hands about First Amendment straw men. There are also some less-psychotic GOPers who simply don’t feel as if they’ve had their [albeit fake] “issue” addressed… folks we might still have a chance of winning over).
The factsFBI figures 2007 – 5 murders of gays for being gay, 1,460 total.
NCAVP figures 2007 – 5 murders of gays for being gay, 16 murders of trans for being trans, 2,430 total (an increase of 24%over 2006 vs a decrease for all other categories)
FBI 2007 figures for crimes based on the victim’s religion, a protected class: 1,477, of which 1,010 were against Jews. (and no murders in this category).
According to the NCAVP, there were 215 recorded incidents of police misconduct.
Law enforcement and police accounted for 8% of the 2550 total offenders against GLBT victims for 2007, the 4th largest offender category.
Consider the Duanna Johnson case – the video of her being held down and beaten using brass knuckles in an unprovoked attack in a Memphis police station – and her murder weeks later, so she was unable to testify.
There’s a need for this legislation – so hate crimes against trans people are no longer ignored in the FBI statistics, if no other effect.
In fairness it’s not just the GOPI have seen these arguments amongst civil libertarians or criminal defense attorneys such as Jerylyn over at Talk Left. She immediately dismissed the law as thought policing, and did not provide anyone there with an answer as to why her argument would pass legal muster (she’s a lawyer). I agree fundies are just using the legal part as pretext. They do not care about free speech or expression unless it’s their own. My issue is with the criminal defense types more so than anyone else because I assume that the right is not arguing in good faith, but I assume Jeryln of Talk LEft is. Of course, this may just represent the ongoing problem with civil libertaran thought- namely they never see any reason to balance rights at all. Free speech is absolute. Right to own a gun is absolute. Etc. Therefore, discussions of harm (direct and concretely a part of expression of a partiular right) to others is never a factor. I once heard on WBAI (leftist discuss the problem). He said on the one hand the civil libertarian never sees any instances for a rule to exist, and on the other the totalarian sees rules as the end all be all. That’s why we can never rely on the thing itself- ie, speech to divide the limit. We must ask questions like harm. I think some people prefer the simplicity of absolute speech without categorizing speech as free protected speech or not.