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.