Feb 7, 2008

defining hate crime enhancements

Any debater arguing the March / April resolution should cite a carefully thought out definition of "hate crime enhancements." Perhaps the clearest, most defensible*, and most applicable source: US Sentencing Guidelines.
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.
Note the standard: "beyond a reasonable doubt," a heavy evidentiary burden. Note also the protected classes, which have been augmented in recent years.

Update: An important error in the following paragraph has been fixed.

The guidelines require a three-level increase, which, on average, means 14.5 extra months of incarceration. This opens up a potential avenue for the affirmative: hate crime laws look more and more like drug laws, and might suffer from similar problems with "mandatory minimums," tying the court's hands and leading to disproportionate punishment.

*For a defense of applying US Sentencing Guidelines to an "in the United States" resolution, I'll quote myself:
I'd use federal guidelines for two reasons. 1. It simplifies an otherwise impossibly messy debate, which would otherwise tackle 50 potentially different standards and
2. Federal guidelines are "advisory" for all the states.


Anonymous said...

Here are some ideas for arguments concerning this definition I thought I'd throw out there:

On the negative, that definition would preempt the affirmative argument that its impossible to determine intent. Both debaters have to discuss HCE, which *by definition* are only used when intent is proven. At the point you win that argument, then it doesn't matter whether you can prove intent, because it is presupposed that you can.

Arguments you can make to uphold this definition --
+ The definition is the most relevant in that it is defined in the *exact* context of the resolution: The United States.
+ The definition is the best for fairness because debaters can never predict how a word will be defined outside of the context of the resolution.
+ The definition is the best for education becasue it forces debaters to consider how HCE are used in their own country and legal system.

Jim Anderson said...

anonymous, some good points raised. I'd add that what matters isn't proving intent, but how much intent should matter when deciding punishment. I'll have more on that subject later.

Bailie said...

How exactly would you prove beyond reasonable doubt that a person committed a crime due to a persons race, etc.?

How do you know what a person is thinking?

Don't hate crime enhancements just make everything more unjust?

Jim Anderson said...

Bailie, tough questions--but I think they're answerable.

Proving intent is often the most difficult part of a criminal prosecution. We analyze actions and words, and put witnesses on the stand, and even let defendants explain themselves.

In the case where someone yells racial slurs while attacking someone of that particular race, with no other motivation for assault--no money, no ex-girlfriend, no drug deal gone bad--juries can be convinced that the attack was motivated by hatred. Sometimes criminals even boast of their actions, or choose specific symbols to make their intentions crystal-clear. Swastikas, burning crosses--these aren't hard to interpret.

Without some way to determine motive and intent, our criminal justice system would collapse. We would be able to punish based solely on actions and results--so if you accidentally shot someone, you'd receive the same punishment as a murderer. P There's always some level of "mind reading" involved. The bar is set high--"reasonable doubt"--to make sure that it's difficult on purpose.

Novice Debater said...

Would it be possible to say that the legal system must be able to determine motive and intent because with out that ability, like you said, the criminal justice system would collapse and there would be no grounds for the resolution?

I'm still confused on how we, the debaters, should debate about determining intent. It just doesn't seem possible, or at least not 100% possible.

Jim Anderson said...

Novice Debater, I don't know if I'd extend it to "no grounds for the resolution," since the collapse of the legal system would be harm enough.

I think affirmatives are safe because the "reasonable doubt" standard and the unanimous jury system are both slanted toward the defendant, making prosecution for a hate crime that much more difficult. If a neg says, "Hate crimes are unjust because it's too difficult / impossible to prove intent," you can strike back quickly. "US Sentencing Guidelines set a high bar in proving intent, so the motive behind a hate crime has to be obvious to a unanimous jury. This is no different from any other intent-finding verdict--which is why we're able to distinguish Murder One from manslaughter. We recognize that, when assigning culpability and punishment, intent matters a great deal. Without it, the moral grounding of the law would dissipate, and the US legal system, able to assign punishments only based on actions and results, would effectively collapse."

Rona said...

If the Neg argues lynching as in like, hanging people, and tarring and feathering, can the Aff say it doesn't compare, because killing someone in an extremely torturous way is a different story than just shooting them?

Jim Anderson said...

Rona, the thing to argue would be that there's no special reason to single out someone who tortured only victims of a certain race/gender/ethnicity/age/etc. versus someone who tortured random subjects. Torture is inherently horrific, and the torture, not the choice of victim, merits the punishment. At least, I think that's where you're trying to go with that.

Rona said...

And to go on with your example, if someone tortures for sport, and someone else tortures because of a racial bias, and they both go to jail for the same amount of time, to learn not to torture, and not to commit this crime again, then in the end, society is still safe. It is not the judicial system's responsibility, nor should they be able to punish someone for their opinions, which loops back to the freedom of speech thing.
So I only realized earlier today that our district's state qualifier is tomorrow, so I'll be up tonight frantically trying to finish cases...
Thanks for all the help!

Luke said...

What do you think about the Aff running a rawls form of justice, saying that justice is blind (i guess you could run viel of ignorance as criterion?) and should punish the crime and not the opnion behind that crime. The intent to harm is obviously there, they committed the crime. But the justice system cannot punish (but can determine) the opinions behind thoses intents.
I was walking onto a bus the other day, and saw a sign that said, It is unlawful to enter a school bus with intent to commit a crime (and then cited a law number). I though, no friggin duh....

Jim Anderson said...

Luke, I'm posting a Rawlsian piece tonight that will go over that option in some detail.

Anonymous said...

could you say that "hate crime" is not defined, but the definition of hate crime enhacement still applies

Jim Anderson said...

The Rawlsian piece is posted.

Also, anonymous, I'd argue that the phrase is meant to be defined as a whole. Taking it apart, though, a hate crime is a crime in which "the defendant intentionally selected any victim or any property as the object of the offense because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person." I think it's pretty clear and very defensible.

Rona said...

The definition by the U.S. Sentencing guidelines can be used for the Aff case though. You can argue that not all groups will be protected. People being attacked or assaulted because of their political party or political beliefs aren't included, neither is occupation, etc.
Equal protection under the law isn't equal unless ALL groups can be protected by hate crime enhancement.

Anonymous said...

When HCE is applied, is it after the criminal has been convicted of the original crime, or are the two linked? id est- Jen murders a black man. Is she convicted of murder, and then the prosecution worries about an enhancement, or is she tried with a murder/hate crime simultaneously, and it's an all or nothing deal?


Jim Anderson said...

Emily, great question. The "finder of fact at trial" is a jury, which means the "hate crime" aspect must be proven at trial. However, if there isn't enough evidence to prove that the defendant chose their victim because of that victim's ethnic/racial/gender/etc. status, then they are merely guilty of the unenhanced charge.

I'm not an attorney, though, so to be absolutely certain, I'm going to contact one.

Anonymous said...

How is that statement usable as a definition? Are we allowed to change the sentence structure of it to actually make it usable in a debate when we state our definitions? Because I don't know if I can use it when it is stated like that.

Jim Anderson said...

anonymous, you'd say something like this:

According to US Sentencing Guidelines section 3A1.1.(a), a hate crime enhancement to a specific charge occurs "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..." The required minimum increase is 3 levels.

This, on average, increases a sentence by 14.5 months, according to Sara Steen and Mark Cohen in the March 2004 issue of Justice Quarterly, in their article, "Assessing the Public's Demand for Hate Crime Penalties."

Now you have a clear, warranted, and eminently practical definition from which to make your case.

Do be aware, however, that although the USSG are instructive, they are not the only rules regarding hate crime enhancements. They control federal sentencing, but are only advisory to states, which have their own sentencing schemes.

Anonymous said...

So then could one say that the application of HCE's are arbitrary which is undemocratic, since they vary across states and there is no set standard for application?

Seems like a solid foundation to build upon.

Jim Anderson said...

anonymous, I've provided evidence for that at my latest post.

Dirk Pitt said...

I went against a kid on neg who defined hate crime enhancements as certain types of crimes. I rebutted that by stating that it was the motive behind the crime, not the action of a crime, that made a crime a hate crime. Any other advice for rebuttal?

Jim Anderson said...

First, it's important to note that the enhancement is about the punishment. A "hate crime" is a crime with a particular motive or message, not a special class of actions. Spray-painting a swastika is a "hate crime," even as it is also a form of vandalism. Likewise, simple assault can be classified as a hate crime if the perpetrator chose the victim based on the victim's ethnic, religious, sexual, or other status (as defined by law).

For defining how a hate crime enhancement actually works, it's tough to find a better definition than the one cited above.

Anonymous said...

where would I find a definition of justice as "leagality", or whatevers legal? (as the neg, I'm trying to , w/ this definition, give myself the easier burden of proving that HCE's are legal, and therefor just)

Kelli said...

Would it be necessary to define the word Just? And if so, what do you suggest?

Jim Anderson said...

anonymous, justice as legality is one of the dictionary definitions--"just" being "lawful." However, you'd have to explain why laws are just, otherwise people are going to throw examples of unjust laws at you.

kelli, you'd better either directly define "just" or define "unjust," and in either case, use a definition of justice that works with your criterion. Some include fairness, equality (in some sense), morality / rightness, fulfillment of rights, "equal legal liberty for all," and others.

Kelli said...

My value criterion is going to be Protection of rights and I am going to go with Just as acting or being in conformity with what is morally upright or good.

Thank you, your blog is a life saver. :)

PA LD said...

Hey Jim,
Your blog is a big help. How would one argue against the argument that HCE divide society into different social groups and creates social instability? I hit some pretty decent arguments at CFL Quals and would like to have some good blocks for upcoming tournaments.


Jim Anderson said...

PA LD, I think I'd go after its significance, on any of several fronts.

1. Those divisions already exist in society, and HCEs only reflect that. (Otherwise, why would hate crimes even be a problem?)

2. Those divisions already exist in law, so HCEs don't really add much to the status quo.

3. HCEs, by protecting members at risk because of their social status, actually help decrease social instability.

4. Nice assertion: show me the evidence.

There may be other responses, too.

CJ said...

Ok so here's a quick rebuttle to this definition.

1. this operates under the squo the resolution does not contain a time frame thus we should not bu using the current definition but rathe a more genral one that defines "hate crimes" and "enhancements seprately and then we can draw a conslusion regarding intent of the resolution.

2. this definition has no brightline which makes debating every tenet of it very tedious.

3. it's extremely limiting to the negative. Having to prove the beyond a resonable doubt clause is difficult at best.

4. look at the actual text of the law; it doesnt define this as hate crime enhancement but rather "Hate crime motivation or vulnerable victim" thus this is refering to what constitutes a hate crime rather than a hate crime enhancement.

cj said...

Sorry for all the spelling errors I forgot to run the check and I'm tired for prepping for an invite tomorrow.

Jim Anderson said...

CJ, no problem.

Here's a rebuttal to your rebuttal:

1. The resolution says "In the United States" and "are," which not only contextualizes the location and legal system, but provides a time: the present. (That is, unless go all Clintonian and quibble over the definition of "is.")

2. I don't see the lack of a bright line, but even so, that's just too bad. That's how the law is defined.

3. The "beyond a reasonable doubt" actually *helps* the Neg, because it shows that the enhancement isn't applied arbitrarily, but only after careful deliberation in a court of law.

4. That phrase "increase 3 levels" is the enhancement. It means add months to a sentence.

cj said...

alright first, since I would be neg, you would have spent 30sec-1min responding (depending on style speed etc.) which is the advantage of the four point response. but for a specific rebuttal for if the round came down to this definition;

1. without already defined grounds we can assume that "are" could also mean in the framework of the US system.

2. I probably should have better explained this point. I mean that this is an extremely complex definition. It's more conducive to debate if we have a clearly set out definition i.e. "a crime motivated by prejudice against a social group" which makes for a much easier debate and doesn't force any time frame arguments or for us to shift through every group listed to see if is includes everyone under the sun that could be discriminated against. (bright line was probably a poor choice of words) In the end these two definitions would be basically equivalent but mine would make for a much more educational and better defined debate.

3. this argument is a wash at best. For the neg it could also be said that it's extremely hard to ever prove anything totally beyond a reasonable doubt so hate crimes lose a lot of their solvency because they really end up not weeding out the racism and bigotry in society because they can usually find a way to establish reasonable doubt in more prolific and important cases (i.e. I lynched him because he trespassed on my property...oh wait he was black? well there weren't any witnesses that will rat me out so sucks for you) Really this further limits negative creativity and case options to an extent. (OK that's BS there's always the Kritik but we're presuming that there is no Kritik being offered in the round)

4. just because it mentions specifics regarding what the sentencing should be this still isn't the definition of a hate crime enhancement. To prove that it is you'd have to offer an independent definition of enhancement and then offer this. Which puts us back at square one. This could, however, be an somewhat OK definition of hate crimes. (granted 1-3 could still be sued but it would drop point 4 and part of point 1 and a little of 2)

Jim Anderson said...

1. In the framework of the US justice system when? Certainly not 50 years ago, when HCEs didn't exist. Verb tense matters.

2. A broader definition is "better defined?" I offer a definition straight from the law, broad enough to encompass all relevant state statutes, and narrow enough to fit the resolution. See also anonymous's first comment above.

3. If "reasonable doubt" is bad because it makes prosecution difficult, or makes "solvency" difficult, oh well. That's how the law works, and there's a reason: in our democratic republic, we frown on punishing the innocent, even at the risk of letting a few guilty folks go free. See Apprendi v. New Jersey; the Constitution requires a jury's consent for any punishment over the statutory maximum. "Limits negative creativity" is a stretch at best.

4. It may not be a dictionary definition, but it *is* a legal definition of "hate crime enhancement." I refer you to US v Holbert, which cites USSG 3A1.1. as synonymous with a "hate crime enhancement."

Jacque said...

To me this seems to be a superb definition, especially for the neg. ACtually it's so good it worries me; do you have any sugestions for rebutting this definition or claiming it is abusive in the case that it is used against me?
Also, as a side note I wanted to incorporate the argument that hate crime laws are already efficient and therefore enhancements are unncessary but don't know how to do this without leaving myself open to the attack that I am conceding tthat hate crime laws in themselves are just.