Feb 1, 2008

hate crime legislation and unexpected injustice

For those interested in the LD hate crimes resolution, in "The Unanticipated Consequences of Hate Crime Legislation," found in the November / December 2006 issue of Judicature, Mike Adams and Reid Toth explain how a third factor in culpability, dangerousness can justify hate crimes enhancements. They consider the case of aggravated assault as analogous:
The decision of courts to sustain a charge of aggravated assault regardless of whether the weapon is actually fired-that is, actually used in the most dangerous possible manner--is certainly interesting. The reluctance of courts to consider this distinction seems to convey a belief that the offender who uses a dangerous weapon in a less dangerous way at least anticipated the prospect of alternate uses of the weapon when planning the encounter. Thus, a third factor, dangerousness, has emerged as a means of enhancing the penalty for assault. This dangerousness concept is employed in determinations of sentencing for crimes ranging from assault to capital murder.

When one takes the view that punishment is predicated upon not two but three factors-intent, harm, and dangerousness--one significantly strengthens the argument for penalty enhancement based on bias-motivated crime. In the case of the offender using a dangerous weapon during an assault, society is justifiably concerned that upon release the offender may pose a greater threat to a greater number of people. After all, they have already demonstrated a willingness to hurt others through the use of dangerous weapons that can be used to inflict harm upon a greater number of individuals in the future. Put simply, a person with a closed fist may hurt someone badly, but a person willing to commit a crime with a gun (or a knife, for that matter) poses a potentially greater threat to a greater number of people.

Similar logic can be applied to so-called hate criminals. Upon release, they are a threat to every member of the targeted group as opposed to offenders who commit harm due to some personal motivation. For example, if one's neighbor is incarcerated for beating his wife, one may well fear for her safety when he is released. If, however, the neighbor attacks members of other racial or ethnic groups based on group prejudice, one can reasonably fear for the safety of whole groups upon the release of the offender. Therefore, it is reasonable to expect the courts to consider such motivation at sentencing.
Adams and Toth don't spend much time going over the philosophical merits of this third category, but as the argument stands, affirmatives will have to counter it. The article itself points out one way. Hate crimes legislation can lead to disparate punishment, in violation of the 14th amendment.
[T]he additional proof of motive in hate crimes cases limits the ability of the prosecution to secure a conviction even in the most egregious cases. This additional burden may deter prosecutors from bringing hate crimes charges in the first place. Also, since the jury must rely on its own subjective inferences concerning an individual's conduct when presented with circumstantial evidence of motive, there may be inconsistent verdicts. All of this may encourage arbitrary application of hate crimes statutes involving crimes against groups the legislation was intended to protect.
The authors note a further disparity--according to statistics from the National Crime Victimization Survey (NCVS), minorities are prosecuted for disproportionate numbers of hate crimes, so hate crimes enhancements could potentially lead to further injustice.


Rona said...

Looking at all these articles, I feel that the Neg is easier to defend.
I was wondering if you would post about current laws regarding hate crimes.
Also, for the Aff side of the case, could the difficulty in proving intent be an argument? That realistically, it's 20x harder to prove intent than what really happened and that it's actually HARDER to convict someone of a hate crime?

Jim Anderson said...

Rona, I'll continue posting materials over the next two months.

The difficulty of proving intent... I think that could work either way.

Our justice system already considers intent when it comes to severity of crimes; that's why an accidental shooting isn't Murder One. Even though intent is a slippery concept, that makes it more difficult for prosecutors, which is, at least in our justice system, part of the point--to presume innocence, and put the burden of proof on the prosecution.

Rona said...

Hmmm...that's true.
Does it make sense to compare what happened before in history, where blacks were given more severe punishments for killing whites than killing blacks? Because now it's just the other way around, and isn't any more just.

Thanks to Wikipedia though, I learned that 45 states currently have hate crime laws in place, with varying standards, some only racial/religion, some include sexual orientation, etc.

Lauren said...

So, I'm having a difficult time trying to decifer whether "hate crime enhancements" is the elongated punishment or if it's the "racial slurs", or possibly an object, that can make the crime into a hate crime.

It's quite confusing.
My debate class has settled for debating that it is the racial slurs that are the enhancement, but I think otherwise.


Jim Anderson said...

Rona, if the stats bear out, it isn't even reversed--minority groups are more likely to be prosecuted for hate crimes.

Lauren, whoa--they're wrong, in a big way. "Enhancement" is a legal term for a sentence increase--the "elongated punishment," in your terms. If they argue otherwise, they're going to get crushed in competition.

See here for an official definition.

Anonymous said...

Considering the rhetoric, language, and vagueness of this resolution, I think that running a K would be a viable option for the Neg. Would do you think?

Jim Anderson said...

anonymous, I'm curious as to which language you think is particularly kritik-able.

Lauren said...

Thanks! I thought so.
The definition helped me explain it to some of my classmates, too.

So, thanks for the help!

Anonymous said...

I don't understand that last bit on how HCEs disproportionately target minorities. Could you please clarify?