Feb 24, 2008

different state, different hate: variations in hate crime enhancements

Writing 11 years after Wisconsin v. Mitchell paved the Constitutional path for hate crime legislation, Sara Steen and Mark Cohen, in the March 2004 issue of Justice Quarterly, in "Assessing the Public's Demand for Hate Crime Penalties," describe the nuances of hate crime laws from state to state. First, they differ in definition.
Hate crime laws are notoriously problematic because they target particular offender motivations. To enforce these laws, law enforcement officials must have some access to an offender's motive for committing a crime. The requirements for proof of motive differ from state to state, with some states requiring evidence that the offender targeted the victim out of prejudice, bigotry, or hostility for a group of which the victim was a member, and others requiring only evidence that the offender intentionally selected his or her victim from a particular group.
Not only do states vary in their definition of what constitutes a hate crime, but they vary in the number of protected classes. Not all states, for example, include sexual orientation. A handy chart of varying categories is provided here [pdf].

Last, punishment enhancements differ greatly.
Some states impose mandatory minimums for hate crimes, while others mandate the addition of a set amount of time (e.g., two years) to a sentence if a crime was motivated by hate. Still others multiply a sentence (e.g., doubling or even tripling it) or require that the offense be classified at a level of seriousness that is higher than the level for the underlying offense.
In the absence of federal legislation clearly mandating a specific form of hate crime statute, or acceptable forms of punishment, or the proper designation of protected classes, it's up to the states, as "laboratories of democracy," to work out their own laws, while Is this just? That's for you to decide--and argue.

7 comments:

le radical galoisien said...

How are most motives proven? Is it generally through psychiatric evaluation or through motive witnesses (yeah, AJ always hatin' on them, ya know?)? Or do prosecutors rely on creative argumentation?

Anonymous said...

It's my personal belief that the blunt wordage of the resolution implies that we are dealing with hate crimes that are certain and debate is going to be centered around justice/morals.

It is completely pointless to debate motive for this resolution and at the point where someone did there are varieties of ways you can wave it off.

Jim Anderson said...

le radical, from the defendant's own words, from actions (like spray-painting a swastika), from artifacts (like diaries or YouTube or Myspace posts), from witnesses (interesting and topical example here), and, I'd imagine, from psychiatric evaluation from time to time.

Anonymous said...

I'm a bit curious on how to defend an attack saying something along the lines of "HCE is not proportionate because state policies differ thus causes distributive injustice (or w/e)"

I can't come up with anything besides saying that justice is not universal but that is/could be contradictory and seems rather weak.

Jim Anderson said...

anonymous, it really depends on how you define justice, that's certain. If you hold to an absolutist definition, then you're stuck trying to deflect the argument, basically saying that the differences are inconsequential, and that the principle warranting the enhancement is what really matters. That said, states might differ in their undergirding principles, which might not be ideal, but it is the system we have in the United States. Essentially, you'd have to defend a Brandeis-esque view of state-to-state differences, arguing that they work out their own problems based on their individual needs. People who find the rules unjust can either lobby to change them (it's a democracy, after all) or leave (since another state will have more amenable rules).

However, does justice have to be universal in a resolution that specifies "in the United States"? We are, after all, talking about criminal justice, which tries to apply overarching concepts of desert and blame and utility into a punitive scheme that treats everyone equally. But how equal is equal, even within a Rawlsian framework? Can a Rawlsian also believe in "states rights?" I don't know. Those are tough questions.

Greg White said...

so wouldn't the only definition of justice you could argue with (against an Aff's Distributive justice arguement) Hobbes?

Jim Anderson said...

There are many other options, some of which are detailed here.