Something happened recently at a town very close to mine that has me thinking again about what is a hate crime.
Two 16 year old boys attacked a younger boy, 14 years old. The targeted boy had Down's Syndrome. He also had an iPhone in his possession, and the assailants robbed him of that.
Now: under the relevant state's laws, as I understand them (I speak off the cuff here) -- IF the older boys, whom I will simply call AH, because I don't use crude phrases for the sphincter in this august blog -- if they attacked him because of who he was, because he has Down's Syndrome, that is a hate crime, and they can be punished as adults.
On the other hand, if they attacked him just to steal the iPhone: that is garden variety theft, and they will be punished if caught under the juvenile justice system in play.
I shall of course make no effort to defend or mitigate the AHness of the two AHes. If anything happened at all along the lines reported, their behavior was thoroughly disgusting.
Nonetheless, one has to wonder how we worked ourselves into this binary choice.
One can easily imagine this exchange:
AH1, "Hey, that kid has a phone. Let's steal it!"
AH2, "That's the retard from school, Why do they let morons even have cool phones?"
AH1, "Dunno dude, let's just steal it. And we can beat him up, too."
AH2, "Tubular."
Okay, so even AHs don't say "tubular" any more and I'm old. But given this discussion, where would one put this crime as between "hate" or "theft"? And how much should it matter?
Two 16 year old boys attacked a younger boy, 14 years old. The targeted boy had Down's Syndrome. He also had an iPhone in his possession, and the assailants robbed him of that.
Now: under the relevant state's laws, as I understand them (I speak off the cuff here) -- IF the older boys, whom I will simply call AH, because I don't use crude phrases for the sphincter in this august blog -- if they attacked him because of who he was, because he has Down's Syndrome, that is a hate crime, and they can be punished as adults.
On the other hand, if they attacked him just to steal the iPhone: that is garden variety theft, and they will be punished if caught under the juvenile justice system in play.
I shall of course make no effort to defend or mitigate the AHness of the two AHes. If anything happened at all along the lines reported, their behavior was thoroughly disgusting.
Nonetheless, one has to wonder how we worked ourselves into this binary choice.
One can easily imagine this exchange:
AH1, "Hey, that kid has a phone. Let's steal it!"
AH2, "That's the retard from school, Why do they let morons even have cool phones?"
AH1, "Dunno dude, let's just steal it. And we can beat him up, too."
AH2, "Tubular."
Okay, so even AHs don't say "tubular" any more and I'm old. But given this discussion, where would one put this crime as between "hate" or "theft"? And how much should it matter?
Christopher,
ReplyDeleteYou raise good questions. The answer to the first -- was it a hate crime? -- would depend upon the wording of the statute. Though I am not familiar with hate-crime statutes, I'd expect them to apply to crimes committed, at least in part because of hatred of the victim's status. In your example, it appears that AH1 was not motivated by hatred. AH2 expressed a negative attitude toward the victim's status but we don't know whether he would have agreed to commit the crime regardless of the victim's status.
Another question is how the statute defines "hatred," or how a court would define it if the statute doesn't. Neither perpetrator here expressed hatred. That's why I used the phrase "negative attitude" rather than "hatred" to describe AH2's statement. AH2 expressed bigotry and disrespect, but not hatred. Some white people believe that black people are inferior, but they don't hate them.
As for your second question, which amounts to whether we should impose extra punishment on a crime because it is motivated by hatred of the victim's status, the argument against it is that expressions of hatred, unless made in the form of threats to the victim, are protected speech under the First Amendment. The courts, however, allow an exception when a crime is motivated by hatred of the victim's status, and the arguments for doing so are that extra punishment will help deter these crimes, and that society wishes to express its abhorrence of these crimes.
An additional complication is that a crime may be motivated by hatred of the victim's status, but not accompanied by an expression of such hatred, as it is in your example (assuming that AH2's negative expression constitutes hatred). But the only evidence that the state would have of the motivation would be expressions of such hatred that the perpetrator made at other times. But how can the state connect these other expressions to the crime? Suppose that a member of the KKK decides that he needs some money and will mug the first person who walks by. That person turns out to be black. We can take membership in the KKK as indicating hatred of black people, but the state has the burden of proving that the crime was motivated by hatred black people.
As a pragmatist I have to wonder: does the difference in punishment relate to any hypothesis about the difference in the CONSEQUENCES of punishment? Is there an implicit hypothesis here that my AH2 would be either more or less easily deterrable than my AH1? That one sort of motive presumes better chances for rehabilitation than the other?
ReplyDeleteA pragmatist should recognize that the reason for a hate-crime statute is that a majority of the members of the legislature thought that voting for it would increase their chances of re-election. In theory, it might increase their chances of re-election because voters had thought about the analytic questions that you and I have raised and had communicated their conclusions to the legislators. In practice . . . I don't need to finish the sentence.
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