Hate Crime And Thought Crime

David Neiwert has an interesting post up discussing whether hate crime laws create thought crimes. He states that:

Bias-crime laws no more create "thought crimes" than do any other laws consigning greater punishments for crimes committed under certain species of mens rea (or the mental state of the perpetrator), including anti-terrorism laws. Differences in intent and motive can make the difference between first-degree murder and manslaughter. Enhanced punishments are especially warranted when crimes are believed to cause greater harm -- and hate crimes quantifiably do so. These are standard features of criminal law, and no more create "thought crimes" than do laws providing the death penalty for first-degree murder.

I don't find David's analogy convincing; its not clear to me that battery is to hate-motivated battery as manslaughter is to murder. It may be administered as such, i.e. used as a factor to justify an enhanced sentence, but I believe that the theoretical underpinnings are different.

As David notes, manslaughter and the various degrees of murder are related via the culpability of the defendant; the more culpable the defendant the more serious the charge and associated sentence. Do battery and hate-motivated battery partake of the same or similar relationship? That is to say, are they related via some common scale or axis as are manslaughter and murder? I don't believe so, and I'll let David make my case for me:

As I point out in the book, hate crimes have the fully intended effect of driving away and deterring the presence of any kind of hated minority -- racial, religious, or sexual. They are essentially acts of terrorism directed at entire communities of people, and they are message crimes: "Keep out.

The distinction is not one of degree; the defendant isn't more culpable of the battery because ey are motivated by hate/animosity. Rather, what actually appears to be going on behind the scenes is that the defendant is being implicitly charged with the additional crime of terrorism directed at a particular community.

As I've noted before there seem to be problems with this approach. I agree with David's interpretation that hate crimes serve to undermine/limit the freedom of entire classes of people, but I think we handle their prosecution in a totally bass-ackwards fashion. Some observations and thoughts, in no particular order:

• If, as David says, hate crime legislation really seeks to protect groups of people from targeted terrorist acts, why not make the charge of "terrorism" explicit? Push for legislation to make the targeted terrorizing of a particular group of people illegal if such legislation doesn't already exist. If it does exist, use it.
• Is it a hate crime if knowledge of the crime doesn't become widely disseminated among the targeted group? If I burn a cross on someone's lawn its easy to argue that I intended my disdain for their class to become public knowledge. But if the defendant's disdain for a group is only uncovered after a long process of discovery then its hard to argue the charge of "terrorism", since the defendant didn't intend their animus to become public.
• IANAL, as always, but aren't there due process problems with this approach? If you're going to treat a crime against an individual as a crime against a group then isn't it incumbent that prosecutors be required to demonstrate specific harm to the group as a whole? As it stands now its sufficient to demonstrate bias-motivated harm to a specific representative of a protected class; its just assumed that any instance of bias-motivated harm against one member translates to harm against the group.
• What about the intersection of mutiple protected classes? Under the hate-crime-as-terrorism theory it should be worse to commit a crime against someone who belongs to multiple protected classes then against someone who belongs to just one, since multiple groups are implicated in the former case but only a single group is implicated against. But that approach has all sorts of negative social implications since it places a value on a person based on the number of protected classes to which they belong.

Lastly, to the charge of "thought crime", I'm going to respectfully disagree with David's position. Consider the simple scenario of a white man beating a black man where there are no external signs of racial animus. If the beating takes place for reasons unrelated to race then no hate crime has occurred. If, on the other hand, the beating is racially motivated then the perpetrator has suddenly committed a crime against an entire class of persons which is distinct in character from the beating. The perpetrator didn't beat the group but rather terrorized them; its an entirely new crime and not just an extension of the beating. The only distinction between the two scenarios is the perpetrator's mental state, which leads inevitably to the conclusion that the crime against the class as a whole exists solely as a result of the perpetrator's thoughts. That looks to me like thought crime no matter how you slice it.

All of this, I think, highlights a problem with how we prosecute hate crimes. If, as David asserts, a hate crime is more serious than its non-hate counterpart because it affects entire classes of people then we need to be explicit about that. Rather than using a person's motivation as a factor in enhanced sentencing we need to be charging defendants with at least two crimes, the first being the original crime against a member of the protected class and the second being a charge of "terrorism" (or "intimidation" or some other suitable verbiage) against the class as a whole. This would undoubtedly raise the bar for hate crime prosecutions, but I think that's a proper outcome. People should have to prove, rather than just insinuate, that a crime was bias-motivated; in the very least there need to be some incontrovertible markers indicating that such was the case.

As a side benefit I think this approach might be sufficient to do away with the need for the enumeration of protected classes. Enumerated lists are a problem because there are classes worthy of protection which don't make it on to the list. Failure to include them sends the message that their rights aren't as important as other peoples'. Under a two-charge formulation it wouldn't be necessary to designate particular classes as protected. Rather it would be enough to show that the victim was a member of a particular group and that that particular group was terrorized (or whatever you choose to call it) as a result of the perpetrator's actions.

Lastly, there's still the problem of what to do when a victim belongs to multiple protected classes. Logic would seem to dictate that its worse to assault a Latina lesbian (probably a member of 3 classes) than a straight white woman (probably a member of 1 class). But, as I noted above, this doesn't really seem to be good public policy. Which leads me to wonder whether characterizing hate crimes as a crime against particular groups is the right way to go? Are there other models which don't suffer from this contradiction? I really don't have a good answer to that one, but I thought that I'd raise the question anyway.