Resisting arrest is now a “hate crime” in Louisiana

After thinking about it for a while, I’ve decided that the concept of “hate crimes,” with substantial extra punishment levied on those who commit them, is untenable and should be discarded. While I admit that the motivation for such laws is often admirable—to prevent bigotry—there are several problems.  The first is that a hate crime punishes not the acts itself, but the motivations behind them—the thoughts. In other words, hate crimes are thoughtcrimes. It seems to me that, if you want to treat all people as equals, you don’t levy extra punishment on those who attack certain classes of people. It is sufficient to punish the deed, not the thought, which is often hard to decipher anyway. As Michael McGough noted in an anti-hate-crime piece (from ten years ago!) in the LA Times:

For one thing, I believed, such laws could end up giving extra punishment to ordinary criminals who, while committing a run-of-the-mill crime, engaged in some racial trash talk — and that’s not the kind of bias-motivated crime the law was intended to go after. For another thing, it is possible that such laws could end up punishing blacks who commit violence against whites — which is a far cry from the historical experience that inspired hate-crime statutes.

Perhaps even more worrisome, hate-crime laws also muddle the distinction between bad acts and bad thoughts. As I wrote at the time: “If a mugger of one race uses a racial epithet while snatching the purse of someone of another race, is that a ‘hate crime’? Better for the criminal justice system to punish the act — harshly — and not speculate about the motive.”

To counter this argument, of course, you can claim that punishment is meant to deter others from repeating a crime, to keep the criminal out of society until he’s reformed, and to protect society. One could argue—though one would need facts rather than just a subjective feeling—that hate crimes inspire more “copycat” crimes than do “nonhate” crimes, that those who commit hate crimes are harder to reform and thus need longer sentences (this presumes, of course, that American prisons are engaged in rehabilitation, a fatuous asssertion), and that those who commit hate crimes pose more of a danger to society than those who don’t, and should be locked up longer.

Even if that were true, however, one could, as McGough did, counter-argue that the biggest danger with “hate crimes” is that they could spread to encompass nearly all groups. The very idea of a hate crime is, like the idea of hate speech, an elastic concept that can be stretched to cover  those of whom you simply don’t approve. McGough:

The paradox is that as the list of protected groups gets longer and longer, the law approaches a situation in which every crime is a hate crime.

In his opinion in the Wisconsin case upholding “piggyback” hate-crime laws, Chief Justice William H. Rehnquist wrote that the “perceived harms” of racial discrimination justified the state’s imposition of harsher penalties for acts of bias-motivated violence. I obviously disagree, but even if you believe that there should be special punishment for, say, cross-burnings (arguably a unique affront given American history), the addition of more and more groups to the hate-crime laws makes no sense.

One final argument against hate-crime laws: If their overarching purpose is to affirm the equality of all people, then the law should punish all assaults the same, regardless of the race, gender, religion, sexual orientation, disability or veteran status of the victim. The “protected class” should be human beings.

McGough’s fear is not an idle one, for, indeed, the definition of what is a “hate crime” has been stretched to ludicrous lengths. In Louisiana, there’s a new law that makes it a hate crime to—get this—resist arrest. That’s considered a “hate crime” against police, and the law making it thus is called a “blue lives matter” law. As KATC reports from Acadiana/Lafayette Louisiana, if you’re arrested for a misdemeanor like shoplifting, your crime can be automatically elevated to a felony if you resist arrest. And that can double your jail time. The article quotes St. Martinville Police Chief Calder Hebert”

“Resisting an officer or battery of a police officer was just that charge, simply. But now, Governor Edwards, in the legislation, made it a hate crime now,” said Hebert.

Under the new law, Hebert says any offender who resists, or gets physical, with an officer can be charged with a felony hate crime.

For example, if someone who’s arrested for petty theft, a misdemeanor, tries to assault an officer, that individual can be charged with a hate crime. A hate crime is considered a much more serious offense, with serious consequences.

“We need the police and the public to work together. The policemen have a job. The public has the job of helping the police. And if someone happens to be involved in criminal activity. Let the courts handle it. Don’t resist physically,” said Hebert.

If the state’s new law proves successful, Hebert said he hopes the rest of the country will adopt similar laws.

“These guys go out there everyday and the main goal is to protect the public and go home at the end of the day. This is one step in making that happen. Hopefully, the rest of the nation follows suit,” said Hebert.

Now why on earth is it a “hate crime” to resist arrest? Does that mean you hate the police? I don’t think so: it means only that you don’t want to be apprehended. It’s possible, of course, that someone could willy-nilly assault a cop out of hatred for the police, but that’s not what the ordinance states. And that’s the whole problem that McGough outlines above.

Readers: do you think there should be a special category of “hate crimes” that are punished more severely?

h/t: Grania, Mark Randazza, who tweeted this:

85 Comments

  1. GBJames
    Posted January 24, 2017 at 9:56 am | Permalink

    sub

  2. Cindy
    Posted January 24, 2017 at 9:58 am | Permalink

    This reminds me of when Bush-lite Canadian PM Steven Harper was pushing an NSA style spybill. Conservative voters loved it, because their party was in power and it would of course be used for “good”.

    Some smart commentators pointed out that Canada would not have a Con government forever and do they really want the socialist NDP spying on them should Cons lose the next election??

    • Posted January 24, 2017 at 1:23 pm | Permalink

      But then this law could be used to help Cons win the next election by finding a pretext to spy on the opposition.

  3. TJR
    Posted January 24, 2017 at 9:58 am | Permalink

    If you beat the crap out of someone it is not as bad if the victim has the same skin colour and sexual preferences as you, and follows the same irrational belief system as you.

    Erm, right.

    Best summed up by South Park many years ago:

    “Is it a hate crime to beat up English people?”

    “No”

    “Sweet” ( Cartman punches Pip in the face )

    • Shaokang Yuan
      Posted January 24, 2017 at 10:14 am | Permalink

      Lol! 😀

    • Kevin
      Posted January 24, 2017 at 11:58 am | Permalink

      More morality can be deduced from the satire of Eric Cartman than all of the religions of the world.

  4. George
    Posted January 24, 2017 at 9:59 am | Permalink

    I have always found the idea of “hate crimes” offensive. A crime is a crime. Why the offender committed the crime is irrelevant. Particularly crimes to a person. If you kill someone, attack them and cause injury, etc – why is it worse if you have “hate”?

  5. Draken
    Posted January 24, 2017 at 10:03 am | Permalink

    The logical next step will be to apply the hate crime law if you simply verbally protest your arrest.

    • eric
      Posted January 24, 2017 at 10:14 am | Permalink

      Or videotape it as a bystander.

  6. alexandra Moffat
    Posted January 24, 2017 at 10:03 am | Permalink

    Always found the concept of a thought crime, “hate” crime, ridiculous. As well, if we are innocent until found guilty in a court of law, freedom of speech should apply- thus punishing someone for saying something or displaying special dislike for a alleged victim goes against our right to free speech. Yup, kinda tortuous “logic”. Why Isn’t the ACLU fighting against “hate crime” laws?

    • Posted January 24, 2017 at 10:56 am | Permalink

      I’ve never understood how you can investigate a hate crime.

      It implies the motivation can be determined even before the suspect has been identified.

      Surely motivation is something that has to be demonstrated in court?

    • Ken Kukec
      Posted January 24, 2017 at 1:13 pm | Permalink

      Under our federal system, the law regarding “hate crimes” varies from state to state. In some jurisdictions, the “hate” element increases the degree or severity of the underlying offense. In others, it is treated as a “sentencing enhancement” factor considered in fixing the punishment after an offender has been convicted.

      Since it’s the offender’s act and intent that subjects him or her to punishment, rather than pure speech or thought, First Amendment free-speech concerns do not prohibit such prosecutions — anymore than they prohibit, for example, a prosecution for conspiracy to fix prices (which may also involve “speech” by the defendants).

      The perpetrator’s “motivation” must be proved beyond a reasonable doubt. That motivation can be investigated by the legal authorities before a defendant is charged — just as any other essential element of a criminal offense can be so investigated consistent with the presumption of innocence.

      As I’ve said elsewhere in this thread, there may be valid objections to “hate crimes,” but these (yours and Speaker To Animals’s) aren’t them.

  7. Jay
    Posted January 24, 2017 at 10:09 am | Permalink

    Most crimes can be considered a kind of ‘threat against a group of people’. Carjacking is effectively a threat to all automobile drivers.

    • Kevin
      Posted January 24, 2017 at 12:52 pm | Permalink

      The hierarchy of threat is significant in the Pedestrian-Cyclist-Motorist Triad. This is a strange orientation of ownership of a label. Many motorist hate cyclists and vice versa, even though most cyclists are themselves also motorists. And everyone is a pedestrian at some point.

      I think people just tend to feel privileged in whatever position they happen to be participating at that moment. Very shortsighted.

      • Michael Waterhouse
        Posted January 24, 2017 at 5:59 pm | Permalink

        But the cyclists dress funny.

    • Ken Kukec
      Posted January 24, 2017 at 1:31 pm | Permalink

      True. And the vulnerability of the victims so classified, and the harm that befalls society as a result of their victimization, are factors routinely considered by legislatures in setting the degree of a criminal offense and the severity of punishment that should be imposed for its violation.

      So you seem to be making an argument in favor of hate-crime laws. Or are you arguing that a legislature’s concern over the vulnerability of carjacking victims, or concerns over how disruptive carjacking is to society, should invalidate carjacking laws?

  8. Mark Reaume
    Posted January 24, 2017 at 10:12 am | Permalink

    I’m glad you wrote this, I’ve been chastised for saying that the concept of hate crimes is flawed for these very reasons. I thought I was alone in this way of thinking.

  9. eric
    Posted January 24, 2017 at 10:12 am | Permalink

    It is sufficient to punish the deed, not the thought, which is often hard to decipher anyway

    The problem with this is, if it’s strictly applied, we have to throw out the difference between manslaughter and first degree murder (and everything in between). We also have to throw out ‘terrorism’ as a crime; that becomes just murder or destruction of property. We also have to throw out the distinction the law makes between drug users and drug sellers (and let’s be honest – if we did that, it would involve much longer and more unjust sentences for drug users, not lighter sentences for drug sellers). And there are probably a lot of other crime distinctions that would get thrown out with the bath water too.

    It seems to me that it is relevant in some cases to consider motive and planning in sentencing. Neither the “always consider it” or “never consider it” extreme is any good. So I opt to reject the slippery slope argument against considering motives for ‘hate’ crimes, and just say instead that this is a bad application of a reasonable principle. The law should be rejected; as you say and seems very obvious to me, not all incidents of resisting arrests is done out of hate for ‘police’ as a specific group. But throwing out motive and intent altogether is IMO very unwise. I’d say that we must chart a middle path and just deal with the gray areas and slippery slope tendencies of some people to want to over-expand the use of motive, as specific incidents of such over use come up.

    • Posted January 24, 2017 at 11:04 am | Permalink

      The problem with this is, if it’s strictly applied, we have to throw out the difference between manslaughter and first degree murder (and everything in between).

      They’re not comparable. The difference between murder and manslaughter is the intent to kill, not the motivation.

      If someone causes harm through negligence it is that negligence that determines their guilt, not whether or not the injured party belongs to a protected group.

      • eric
        Posted January 24, 2017 at 12:50 pm | Permalink

        The difference between a hate crime against a church and vandalism against a church is the intent to send a message. The difference between terrorism and murder is the intent to provoke fear in the survivors. The difference between a drug user and drug seller is the intent they have for the illicit good they carry.

        You can parse the difference between types of murder as “intent”, but I don’t think that qualitatively makes it different from hate crimes or these other things. If you want to talk about intent, then we just have the same conversation about whether intent should matter in sentencing, and if we have that conversation, I’ll stick to my guns and say the best answer is “sometimes yes, sometimes no, and we shouldn’t let the possibility of the slippery slope deter us from using a nuanced and complex solution, because either of the clear-cut simple solutions is worse.”

        • Grania Spingies
          Posted January 24, 2017 at 1:11 pm | Permalink

          You’re not understanding the legal concept of intent. When establishing intent in a case of Person X causing the death of Person Y, the only question is: Did Person X intend to kill Person Y?

          If Yes, then the issue is murder.
          If No, then the issue is manslaughter, or culpable homicide (depending on country & circumstances etc).

          You are using intent meaning motivation / reason, which is correct semantically, but not legally. It’s a little akin to the mistake people make when they say Evolution is just a “theory”.

          Long story short: Intent has a particular meaning in law in the same way as theory has a particular meaning in science.

          The motivations and reasons behind Person X’s crime – assuming he is found guilty – will probably determine the sort of sentence he gets.

      • eric
        Posted January 24, 2017 at 12:54 pm | Permalink

        Oops, didn’t cover this part:

        If someone causes harm through negligence it is that negligence that determines their guilt

        AIUI, the exact same thing is true of hate crimes in the US (though not necessarily in other countries). You must first commit a crime, and the evidence of that crime determines your guilt or innocence; once you have been found guilty, the attachment of ‘hate crime’ to it can increase your sentence. But at least in the US, hateful intent doesn’t make a non-crime into a crime.

        In the specific instance Jerry is discussing, hating on the police isn’t illegal. Resisting arrest is, and resistance determines your guilt. The hate crime addition merely ups the penalty from a misdemeanor to a felony (which I agree is wrong).

    • C Mack
      Posted January 24, 2017 at 11:11 am | Permalink

      Eric~ I think you’ve touched on the key problem in this. I was also thinking of the concept of premeditation vs passion. The idea of intent is quite central to the way our (and most other) legal systems operate. One would have to single out a specific class of motivation if they wanted to eliminate “hate-crime” conceptually, and separate it from things like, say, conspiracy. This is not to say that I don’t agree with limiting the thought crime aspect of hate-crime. However, I do think another rationale is needed to differentiate it – I might start to think about its ambiguity and how it’s not fair to use purely subjective criteria to increase someone’s punishment for a crime. But that gets us into some sticky problems of creating more or less objective hierarchies of crime (I’m thinking of Richard Dawkins unfortunate foray into stranger vs acquaintance rape) that both satisfy the law and people’s innate sensibilities.

      • Posted January 24, 2017 at 11:26 am | Permalink

        Conspiracy is another example of intent rather than motivation.

        Intent is a legitimate concern for the courts. Attempted murder is no less serious just because you failed: the intent was to kill. I see no problem punishing people for attempted murder. I see no problem with punishing people who were preparing an atrocity but were foiled at the last minute. A bomb that doesn’t go off is still a bomb.

      • eric
        Posted January 24, 2017 at 1:00 pm | Permalink

        I might start to think about its ambiguity and how it’s not fair to use purely subjective criteria to increase someone’s punishment for a crime.

        I’m fine with that idea, and with very strictly limiting the concept of ‘hate crime’ because of this ambiguity. The prosecutor should at least have some reasonably concrete evidence that A hated B. That is probably where this LA law goes too far – it effectively makes you guilty of the ‘hate crime’ part of the crime unless proven innocent. All resistance to arrest is a hate crime, no evidence of that needed any more? Sounds like a terrible idea. If I commit some crime against the police and you find an email trail of me hating on police and telling the world I’m going to “send a message”, that’s one thing. By all means, that’s a hate crime. But we shouldn’t assume it in the absence of some concrete evidence or historical record backing up that conclusion.

    • Posted January 24, 2017 at 11:14 am | Permalink

      We also have to throw out the distinction the law makes between drug users and drug sellers (and let’s be honest – if we did that, it would involve much longer and more unjust sentences for drug users, not lighter sentences for drug sellers)

      Also, no. Dealing drugs is a specific criminal act, distinct from merely using drugs or possession of drugs. If you are caught possessing drugs the courts will need to determine whether you are a user or a dealer. It is those acts – or the intent to commit those acts – that determine your sentence.

      Intent and motivation are not the same thing. Intent is the determination to commit a crime, motivation is the reason. The intent to deal drugs is the same whether you are motivated to buy a flash car or get your mom a hip replacement.

      • C Mack
        Posted January 24, 2017 at 11:30 am | Permalink

        StoA ~ I am still inclined to think that our legal system already encompasses motivation quite centrally. If we can step back a little further, and not assume that questions of guilt or innocence are settled, motivation is an absolutely fundamental concept. So, I think it’s imperative to see this as a question of whether we conceive of some motivations being worse than others, which we already do at least obliquely when thinking about the difference between crimes of passion and those of cold calculation.

        Furthermore, the way that sentencing actually works for crimes where judges and juries are allowed some discretion are systematically influenced by motivation.

    • Ken Kukec
      Posted January 24, 2017 at 2:56 pm | Permalink

      I don’t think the consequences of abandoning “hate crime” legislation would be so dire, Eric.

      But I think there’s a valid point underlying your argument: hate-crime legislation is a logical extension of our “blameworthiness” model of criminal justice, in which crime and its consequences turn as much upon the mental state of the perpetrator at the time an offense was committed, as upon the nature of the acts that constitute the offense. (That’s why, as you observe, we distinguish the various degrees of murder and manslaughter, and why we treat acts done recklessly from those done purposefully with bad intent).

      Hate-crime legislation may represent an unwarranted extension of our criminal-justice model, but it is not a break with it.

      • Kiwi Dave
        Posted January 24, 2017 at 3:37 pm | Permalink

        My understanding of the reasoning behind hate crime legislation with its more severe penalties is that the intent behind the hate crime has a chilling effect on a particular class of people beyond the actual victim(s).

        If someone mugs me for my wallet, the mugging is not directed at any group of people. If someone mugs me because I am ethnic group X or sexual preference Y, this has a discriminatory chilling effect on all X and Y’s freedom to go about their lawful business.

        Given the problems already mentioned, I’m sceptical of hate crimes as a special class, but not entirely sceptical.

        • Ken Kukec
          Posted January 24, 2017 at 4:07 pm | Permalink

          That was certainly within the objectives of the legislatures that have enacted hate-crime laws. No proof that a particular crime would cause such ill effects on others is required in individual prosecutions.

  10. Danny Kodicek
    Posted January 24, 2017 at 10:14 am | Permalink

    I fully agree with you; the whole concept of ‘hate crime’ is misguided and counterproductive. Oddly, it almost justifies the crime it seeks to punish – by elevating ‘hate’ to a special motive, it suggests that it is a legitimate motive that requires a particularly strong deterrent.

  11. Jay
    Posted January 24, 2017 at 10:18 am | Permalink

    Part of the problem is that the word ‘hate’ (like quite a few other terms) has had an enormous meaning creep. Originally it meant a virulent destructive vicious attitute.

    It’s now being frequently applied to any manner of distaste, or disapproval. So a very threatening emotion is now used as justification for punishment or censure of actions that were never in the original meaning. This twist of meaning is one of the ways that the power of political correctness became so enmeshed.

    • Cindy
      Posted January 24, 2017 at 10:23 am | Permalink

      “Hate speech” is nebulous and subjective. It changes with the times. What was ‘hateful’ in 1950 is not hateful now.

      Heck, there was a time when speaking out against the church was considered a form of ‘hate speech’ even if those words were not explicitly used.

    • Denise
      Posted January 24, 2017 at 2:04 pm | Permalink

      Did it originally mean “virulent destructive vicious attitute”?

      Or the dictionary definition: “intense dislike; extreme aversion or hostility”?

      I think the latter, an emotion I believe we have all experienced. And are entitled to experience. Our emotions are our own business. Our actions are not.

      I’m not in favor of investigating, controlling or punishing what goes on in other people’s heads.

  12. Posted January 24, 2017 at 10:37 am | Permalink

    I’m against “hate crimes” for all the reasons people have stated.

    In the UK recently, two men were sentenced to a year in jail for the drunken prank of leaving a bacon sandwich on the doorstep of a Mosque. We can deplore the prank, but the jailing is completely disproportionate.

    • TJR
      Posted January 24, 2017 at 11:29 am | Permalink

      Seriously?!

      Dawkins on a bike, I missed that one.

      • Posted January 24, 2017 at 5:16 pm | Permalink

        If it’s this bacon-related hate-crime one of those convicted died in prison.

        A man who placed bacon on the doors of a Bristol mosque has died in prison while serving a 12-month sentence.

        Kevin Crehan was sentenced at Bristol Crown Court in July for racially-aggravated public disorder.

        Rashers of bacon were placed on the door handles of the Jamia mosque in Totterdown in January.

        A prison service spokesperson confirmed the 35-year-old’s death on Tuesday at HMP Bristol and said an independent investigation was under way.

        No other details were given.

        https://www.bbc.co.uk/news/amp/38458529?client=safari

    • Michael Waterhouse
      Posted January 24, 2017 at 6:07 pm | Permalink

      How about the Nottingham making misogyny a hate crime?
      Where will that lead.

  13. Posted January 24, 2017 at 10:37 am | Permalink

    Defendant: “Your Honor, I didn’t kill him because I hated him, I just wanted to steal his money.”

    Judge: “Well that’s different! Sentence reduced.”

    • Posted January 24, 2017 at 10:52 am | Permalink

      The ultimate victory of capitalism is that it’s now considered more acceptable to kill someone for money than because of violent urges.

    • Posted January 24, 2017 at 1:45 pm | Permalink

      I don’t think our courts ever take the defendant’s stories at face value without corroboration, otherwise the remainder of this trial would look like this:
      Defendant: “Your Honor, come to think of it, it wasn’t actually me who killed him.”
      Judge: “Well, if you say so, then you’re free to go.”

  14. Posted January 24, 2017 at 10:49 am | Permalink

    The flipside of hate-crime is that, by punishing people more harshly for committing offences agsinst protected groups, you also open the door to mitigation when people commit violent acts against those we rightly despise.

    I think we’ve all seen defences of the sucker punch on Richard Spencer. I suspect some of us have even defended it.

    But the logic is the same: the seriousness of the actual offence becomes secondary to the motivation.

    People really need to think about whether it’s wise to let the law treat people differently now that those laws are in the hands of a paranoid narcissist.

    • Posted January 24, 2017 at 1:57 pm | Permalink

      I don’t think that there is a flip side to it. If a group of black men physically attacks a group of KKK members who aren’t involved in anything illegal at the time of the attack and aren’t provoking the attack, they should be prosecuted the same way as a group of KKK members that attacked a group of black people without provocation.

    • Ken Kukec
      Posted January 24, 2017 at 3:07 pm | Permalink

      I don’t think that’s a flip-side distinction the law is prepared to recognize — pace what some half-cocked commenters may have suggested. 🙂

  15. Posted January 24, 2017 at 10:53 am | Permalink

    Yes. “Blue lives matter”. All lives matter.
    Shouldn’t it be a hate crime when police officers use excessive force against anyone (not just people of color) or kills them without proof of having been threatened with a weapon? I am sick of differential treatment and mistreatment of many groups of people.

    • Michael Waterhouse
      Posted January 24, 2017 at 6:10 pm | Permalink

      It should be a hate crime if anything is.
      Anyone abusing special power and acting against their oath is obviously motivated by something ‘extra’.

  16. ploubere
    Posted January 24, 2017 at 11:11 am | Permalink

    I agree. In a similar vein, yesterday I argued with someone on Facebook who thought that sucker punching that Nazi guy during the protests was justified because of what the guy was thinking and might do because of his thoughts. I reminded him that this is not Minority Report, and it’s not yet a crime to think bad thoughts.

  17. Posted January 24, 2017 at 11:36 am | Permalink

    I have never supported the concept of hate crimes. Crime is crime.

  18. Ken Kukec
    Posted January 24, 2017 at 11:57 am | Permalink

    … hate crimes are thoughtcrimes. … It is sufficient to punish the deed, not the thought, which is often hard to decipher anyway.

    All crimes are thought-crimes. Our criminal justice system punishes a driver who intentionally runs down a pedestrian, but not one who, driving with all due care, accidentally hits a pedestrian who darts into traffic. Does anyone think it should be otherwise?

    That it is difficult to decipher intent merely reflects the truism that we humans lack direct access to each others’ mental processes. Intent frequently must be inferred circumstantially from conduct. (And even where there is more direct evidence — contemporaneous admissions from the perpetrator or a post-offense confession — the words used may be ambiguous and in need of interpretation in light of conduct.) In white-collar crimes, there’s often little doubt about what physical acts a defendant performed, yet grave doubt about what he or she intended to accomplish through those acts. In fraud cases in particular, a defendant’s culpability will often turn upon (in the parlance of Watergate) what the defendant knew and when he knew it.

    Look, I’m by no means wedded to having thought-crimes; I think the nation could carry on quite well without them. And I think there may be other, valid objections to them (some of which you’ve touched upon in this post). But disposing of the issue by labeling them “thought-crimes” won’t do.

    Under our American system of criminal justice we neverr punish thoughts alone. A citizen is free to cogitate about any despicable act — be it murder, be it rape, or be it (as seems to be Madonna’s fantasy) burning down the White House — yet remain immune to state sanction. It is only when one acts on such thoughts, or attempts to so so, or conspires with others to bring about that end, that one can be subjected to prosecution and punishment.

    And that is as it should be.

  19. Heather Hastie
    Posted January 24, 2017 at 11:59 am | Permalink

    We don’t have hate crimes, and our judges aren’t partisan. Our judges also have wider discretion. (We’re certainly very far from perfect though.) Part of sentencing is related to the remorse of the perpetrator. Someone whose crime was genuinely motivated by some kind of strong bias against the victim typically lacks remorse for their actions. The judge is then likely to give a longer sentence.

    • Historian
      Posted January 24, 2017 at 12:31 pm | Permalink

      “We don’t have hate crimes, and our judges aren’t partisan.”

      I find it hard to believe that judges in New Zealand aren’t partisan. Perhaps they don’t publicly identify with a political party and in that sense you can say that they are not partisan. But, in the broader sense, almost every adult who has even a minimal understanding of the politics of a nation is partisan. That is, they possess a certain worldview about what is right and wrong and the desire that the laws and mores of their society should conform to that worldview. The challenge for a judge is to overcome that worldview and render judicial judgments based on the laws of their society, regardless of whether or not they agree with them. I have no idea whether the judges of New Zealand overcome their partisanship to a greater degree than in other countries.

      • Heather Hastie
        Posted January 24, 2017 at 1:31 pm | Permalink

        You’re right, and I should have been more precise. What I meant is that they make their judgements according to the law and not politics or other personal views. For example, the political opinions of our Supreme Court judges are not obvious the way yours are. I’ve no idea whether they’re generally better than other First World nations; I suspect not. I assume they’re similar to most. They do seem to me to be less partisan than US judges.

    • eric
      Posted January 24, 2017 at 1:09 pm | Permalink

      There is a problem with the remorse thing too, in that it perpetrates a nasty psychological punishment on people wrongly accused. Consider you’re falsely imprisoned, and you’ve maintained your innocence all the way through your trial and sentencing. Now you’re up for parole. The parole board tells you that you can get early release if you will only show remorse for your crime. That’s kind of a psychological torture, isn’t it? Stick to your guns and languish in jail unfairly, or fake remorse, lie to everyone and pretend you did it just to get out. Its horrible that a justice system would put people in that situation. And a judge who does the same at sentencing, to someone who maintains their innocence, is really doing the same thing.

      I have a difficult time with that. I think that at least for parolees, the assessment should be predominantly based on behavior. Though in line with my previous posts, I think the clear-cut ‘never consider it’ answer is probably not as good a solution as the ‘sometimes consider it’ more nuanced answer.

      • Heather Hastie
        Posted January 24, 2017 at 1:45 pm | Permalink

        Yeah, there is a problem in that way. I don’t know how parole is decided here, but I know a lot is on behaviour in prison, and almost automatic after a certain proportion is served. Our sentences are, on average, much shorter than yours too. 20 years for murder is an extremely long sentence here. We don’t have the death penalty, and all sentences are served concurrently.

        I’d like to see us move to a model like Norway, and to spend much more on rehabilitation. It’s improving, but nowhere near fast enough. Also, “getting tough” is always a good political slogan and no one likes seeing money spent on criminals when others are struggling. Most don’t understand getting tough doesn’t work. It just increases dysfunction and recidivism.

      • Ken Kukec
        Posted January 24, 2017 at 3:18 pm | Permalink

        Parole has been abandoned in our federal system, and in many of our states. But what would you suggest as an alternative consideration in those where it remains?

        Remorse is rewarded because its considered (where sincere) to be a step toward rehabilitation. I think it’s a mistake to set system-wide policy based on the relatively rare instances of those who have been wrongfully convicted (except, of course, for the policies designed to weed out the innocent before they end up serving a long prison sentence).

      • infiniteimprobabilit
        Posted January 24, 2017 at 5:44 pm | Permalink

        I absolutely agree with Eric on that. It’s an appalling situation for anyone to find themselves in, where maintaining their innocence is seen as lack of remorse and keeps them in jail. I think that consideration should be expressly removed from bail hearings.

        What makes it worse is the tendency for (some of) our New Zealand police, when under public pressure over an unsolved crime, to pick on the most likely suspect and ‘fit them up’ – that is, dredge through their background for anything that might seem incriminating or just suspicious which can be used against them in court. There is a short but disgraceful list of people in jail who, on the evidence, should not be there (and, if murder cases were determined by a judge rather than a jury, probably would not be there).

        cr

        • Ken Kukec
          Posted January 24, 2017 at 6:28 pm | Permalink

          I think you mean “parole” rather than “bail” hearings. (Bail is set to secure a defendant’s appearance at trial, while the presumption of innocence remains applicable, and in no way depends upon a defendant’s expressing remorse.)

          In any event, “parole” is all but archaic now. The federal justice system abrogated it in 1987 (in favor of a truth-in-sentencing guidelines system pursuant to which an offender serves all the time of his or her sentence, save “good time” obtained through appropriate institutional behavior). Most states have since followed suit.

          Be that as it may, there is pretty universal agreement that “remorse” is valid factor in considering an offender’s early release, inasmuch as it’s indicative of rehabilitation. Also, parole boards aren’t appropriate tribunals for adjudicating a prisoner’s actual innocence; such claims need be taken to the courts on a petition for post-conviction relief, or to the president (or state governor) via a request for clemency.

  20. Posted January 24, 2017 at 12:01 pm | Permalink

    I agree that determining motivation is tricky (and that’s not even with my sometimes doubts about propositional attitudes).

    However, “mindreading” is already part of the criminal law in both our countries: the mens rea requirement.

  21. Posted January 24, 2017 at 12:12 pm | Permalink

    I’m going to have to disagree with most of the commenters here. The difference between a “hate crime” and an ordinary crime is the intent, and the intent matters!

    If a teenager breaks a shop window for the hell of it, that’s ordinary vandalism. Punish it appropriately, starting by requiring him pay to to replace the window. But if a skinhead breaks a kosher deli window in a Jewish neighborhood while shouting his hatred of Jews, that’s a hate crime, because in that case, the victim is not just the shopkeeper, but all Jews who hear about it. It’s terrorism. If you’re going to make a punishment proportional to the scale of the offense, the punishment should be greater. [Now for the record, I’m a determinist, and I feel that this offender should not be imprisoned, but rather given appropriate mental health treatment — which, I admit, doesn’t currently appear to exist.]

    As far as inflating the number of “protected classes”, I don’t see that as a problem. It could come to pass that middle-aged white guys like me could justifiably become a protected class, if for example a violent mob of GLBTQ activists targeted me as a representative of Trump supporters (which perhaps I superficially resemble but am in fact not).

    But making police officers a “protected class” and resisting arrest a “hate crime”? Sorry, that’s just part of the job, or else they wouldn’t normally carry handcuffs.

    • Craw
      Posted January 24, 2017 at 1:07 pm | Permalink

      I agree intent matters. That’s not the issue, because this is exacerbation *after intent has been established*. And it goes beyond remorse etc that judges normally consider.

      But it is “protected classes” which are the real problem. First, it seems to flout the 14th amendment. Second, it makes victim status a political prize to be won and exploited. As we see happening here. And the obverse is pariah classes. That’s the point of the South Park joke mentioned in a comment on this thread.

      It’s wrong, finally, to judge people as exemplars of a group rather than as individuals. Hate crime law is just one example of this.

      • eric
        Posted January 24, 2017 at 1:16 pm | Permalink

        But it is “protected classes” which are the real problem. First, it seems to flout the 14th amendment. Second, it makes victim status a political prize to be won and exploited. As we see happening here. And the obverse is pariah classes.

        I agree that in this case, ‘protected class’ = police is a real problem. However, a rule that says murder for religious motive or racial motives doesn’t pose the same classist problem, because anyone can be a victim or perpetrator under such rules. It does still pose the issue that StoA noted above, that we start having “oh, you killed him for money? That’s less bad then” sorts of conversations. But IMO we’re always going to have those conversations (“you killed him because you felt threatened? Less bad. You killed him in anger rather than planned it? Less bad”), and the question is really which of those sorts of conversations we want to have. That we must sometimes have them is, IMO, a pretty foregone conclusion.

      • Ken Kukec
        Posted January 24, 2017 at 3:44 pm | Permalink

        Hate-crime legislation certainly would violate the 14th Amendment’s Equal Protection clause if those statutes provided that only people of a particular race, ethnicity, etc. were protected — or if such statutes provided that only members of a non-protected group could be prosecuted.

        They don’t — at least not in the jurisdictions where I’ve practiced. Instead, such statutes increase the severity of a crime where its commission “evidences prejudice based on the race, color, ancestry, ethnicity, religion, sexual orientation, national origin, mental or physical disability, or advanced age of the victim.”

        Under the express terms of such statutes, any defendant (regardless of color or class status) who acts with the prohibited animus can be prosecuted for a crime against any victim (regardless whether the victim is a member of any “protected class”). I believe, for example, that the recent high-profile case out of Chicago involving several black youths who abused a white kid is being prosecuted as a hate crime.

        I don’t see where such prosecutions raise 14th Amendment issues.

    • Michael Waterhouse
      Posted January 24, 2017 at 6:21 pm | Permalink

      It won’t come to pass, that a middle aged white male will have special protection.
      What will come to pass is a law like in England where misogyny is a hate crime.

      Careful with that look Eugene.

  22. rickflick
    Posted January 24, 2017 at 12:55 pm | Permalink

    A friend told me of an incident that highlights abuses that can occur in dealing with the police. When being arrested for mischief as a youth, he was taunted and teased and repeatedly buffeted about the head in an attempt to stimulate a reaction. My friend realized the situation and made an extra effort at restraint. Any attack on the arresting officers could trigger an even more violent police action and even greater penalties in court. If cops are eager to make you suffer, they have ways to elicit a resisting arrest scenario.

    • Craw
      Posted January 24, 2017 at 1:09 pm | Permalink

      This is one reason why I think we need to establish clearly and explicitly that single-party recordings are always allowed, and that cops should wear cameras.

      • Ken Kukec
        Posted January 24, 2017 at 3:57 pm | Permalink

        The trend is certainly toward widespread use of body- and cruiser-cams for most police departments and other law-enforcement agencies.

        States vary on whether they require one- or two-party consent for surreptitious private recording — but, even in those that require the consent of both parties, an exception is generally made for acts and statements that occur in public spaces.

        • Posted January 25, 2017 at 11:19 am | Permalink

          Do the states provide decent penalties for police tampering with their cameras? I remember something about some cases where the officer had a camera, but it “broke down” at a very inconvenient (from the perspective of a possible victim of police violence) time.

          • Posted January 25, 2017 at 11:35 am | Permalink

            When LaQuan McDonald was gunned down in Chicago, just about every camera “failed” at the site in a amazing coincidence. The only one working was on the last (?) arriving squad car and that one had no sound when it was supposed to. That one was a dashboard cam, not body. If the last one hadn’t been working though, the cop who shot him 16 times, several of those when he was already collapsed on the ground, might have gotten away with it, especially since all of the other officers gave sworn statements backing up the shooter’s bullshit story.

            If not for the outcry, I suspect that there would have been no consequences for any of the officers not having their cameras functioning. It’s only because of the outcry that just recently some of the officers/witnesses were suspended. Personally, I think they should be fired and prosecuted for perjury if possible.

            To my knowledge, there is no state law regarding the functioning or proper use of the body cameras in Illinois. The officer suspensions were as a result of internal discipline, not anything unlawful (AIUI).

          • Ken Kukec
            Posted January 25, 2017 at 3:21 pm | Permalink

            There’s no reason why police officers who interfere with their cameras would not be subject to the same obstruction-of-justice and evidence-tampering laws as anyone else.

    • Michael Waterhouse
      Posted January 24, 2017 at 6:24 pm | Permalink

      That has been their get out of jail free card for ever.
      And it has been a hobby for some to behave like that.
      And a method for others to coerce a confession.
      And so on.

      What about stop and frisk?

      It is disgusting.

  23. J. Quinton
    Posted January 24, 2017 at 1:15 pm | Permalink

    I think this law should be renamed to “Teenage Angst Law”:

    “Junior, you’re failing all of your classes. You’re grounded for a week!”

    “I hate you dad!” *runs away*

  24. Posted January 24, 2017 at 1:22 pm | Permalink

    I think that non-white perpetrators who commit crimes against white victims, if hate motivation is established beyond reasonable doubt, should be charged with hate crime quite like white perpetrators attacking non-white victims. But I agree that it is better to drop the hate crime concept altogether.

    • Ken Kukec
      Posted January 24, 2017 at 4:00 pm | Permalink

      That’s the law where I practice. Were it otherwise, I believe it would violate the equal-protection guarantee in the US constitution.

  25. Posted January 24, 2017 at 2:28 pm | Permalink

    I don’t have a problem with the concept of hate crimes, as long as the action alone without the “hate crime” component does in itself constitute a crime.
    One reason for keeping the hate crime charge as a reason for a harsher punishment is that even after the crime has been committed, the criminal still has the motive for further attacks, although the actual likelihood of future attacks has to be considered separately in each case.
    The Louisiana law should not automatically apply the hate crime charge to resisting arrest, however, because the person resisting arrest is not initiating the encounter (the arrest) but is reacting to it. It’s possible there may be a situation where a hate crime charge may be appropriate for the arrested person’s actions during the arrest, but it should be considered on case by case basis only.

  26. Michael
    Posted January 24, 2017 at 5:05 pm | Permalink

    I suspect that what is being attempted with hate crime laws is probably better handled with a separate charge – of (domestic) terrorism! The burning cross on the lawn is “technically” trespassing and vandalism … until the effect on both victim and community is considered. This cuts through the “intent” and “motive” fog quite neatly – as we can look at these consequences more objectively.

  27. infiniteimprobabilit
    Posted January 24, 2017 at 5:19 pm | Permalink

    I thought ‘resisting arrest’ was the standard bullshit charge the cops came up with when they didn’t have anything else on the victim^H^H^H^H^H perpetrator.

    The you get morons like this police chief Hebert – is is any wonder so many people hate and mistrust cops?

    cr

  28. Michael Waterhouse
    Posted January 24, 2017 at 6:27 pm | Permalink

    I suppose it is more justifiable to shoot someone engaged in a hate crime as well as resisting arrest than merely resisting arrest.

  29. MAUCH
    Posted January 24, 2017 at 8:40 pm | Permalink

    We have Milwaukee County Sheriff David Clark who feels that even momentarily showing him your silent displeasure over his corrupt behavior is grounds for being detained by the county deputies. Freedom of speech and freedom of thought should be protected by the Constitution.

  30. TEJAS PATKI
    Posted January 24, 2017 at 11:52 pm | Permalink

    I agree with some of the comments above. A neo nazi group member attacking the establishment of person of Jewish faith with a Molotov cocktail is not arson, it is hate crime. So is graffiti with racial insults.
    A black man using racial slurs during a mugging incident against a white woman can be interpreted as a mugger just trying to intimidate his victim. Hard to call it a clear case of hate crime.
    A terrorist shooting a SWAT member during a house raid is not hate crime. SWAT knows the risks when they take up assignments and their opponents are “justified” in taking all means necessary to preserve their life. So try them for murder but not a hate crime.

  31. Diane G.
    Posted January 25, 2017 at 1:59 am | Permalink

    sub

  32. scott
    Posted January 25, 2017 at 2:23 am | Permalink

    I know a gay couple who were recently the victim of a minor crime that neither they nor anyone else who knew about it considered a ‘hate crime’ as their sexual status/orientation clearly had nothing to do with the crime that was committed. The police, though, said that because the victims of the crime were gay then it had to be reported and treated as a ‘hate’ crime, even though the victims themselves tried to explain to the police officer it was nothing of the sort.

    • infiniteimprobabilit
      Posted January 25, 2017 at 3:41 am | Permalink

      It makes a very convenient blackmail to use when plea bargaining, doesn’t it? ‘You can plead guilty to [whatever-it-was] and cop a sentence or we’ll charge you with hate crime and you’ll go down for five times as long’.

      What, me, cynical?

      cr

  33. FH
    Posted January 25, 2017 at 9:20 am | Permalink

    I agree that the concept of hate crimes is problematic but I disagree with the logic that hate crimes are thought crimes. If you think about it, our criminal justice system never punishes just the criminal act itself, independent of the thoughts, i.e. the motivation behind it.

    Person A shoots person B on the street. If it turns out that A sincerely believed that B is a demon and he was acting on gods orders because of a brain tumor or something, this is grounds for an insanity defense and A might not be punished at all. If A acted out of jealousy because he believed B had an affair with his wife, the full force of the law will come down on him. The act is the same, B is just as dead in both scenarios, what’s different is just the subjective internal world, the thoughts of A. So in this sense you might say that all crimes are thoughtcrimes. But what we normally mean when we say thoughtcrimes, and why it’s such a frightening, dystopian concept, is that it’s purely the thought, without its manifestation in an act, purely the internal, most private world that doesn’t touch or concern anyone or anything outside of the mind of the thinker at that point that’s criminalized. It’s worth making that distinction, I think.

  34. keith cook +/-
    Posted January 25, 2017 at 2:22 pm | Permalink

    Why didn’t they just bolster the resisting arrest laws if they wanted to penalize the belligerent, calling it hate is problematic, melodramatic and hysterical.
    And the ridiculous, non resistance is an act of love and greeted with a hand shake and a coffee voucher.


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