Hate Crimes

I had a conversation with my roommate yesterday about hate crime legislation. I may not be a good liberal by saying this, but I think hate crime legislation is ultimately unnecessary, as it's currently written. Problem is that, not from a lack of trying, I had a hard time articulating my reasons why, at first. I've been thinking about my reasoning off and on since our conversation- so much so that I commented on a message board about my ideas so I could practice writing them for my blog post.

The original blog post (here) talked about Obama/Biden wanting to beef up existing hate crime laws and how it was redundant and that ultimately it was meaningless.

Many people who are against hate crime legislation are Rush Limbaugh style social conservatives who use arguments of fairness to mask their barely hidden prejudices. I don't think that having hate crime laws on the books will somehow exacerbate differences between protected groups, as many "conservatives" argue. I also understand the reasoning behind hate crime laws in the first place, most notably, it gave the Federal government an out for prosecuting crimes against minorities that otherwise would have gone unpunished. Society does have a stake in upholding certain values, and it's entirely possible that the ends justify the means.

Nevertheless, hate crime legislation still sits very uneasily with me. My response to the original post shows why:

In the original post, I think there's a mix-up between motive and intent. It's not a waste of time to look for intent- it's the basis by which we categorize crimes. The difference between murder and manslaughter is one of intent.

What the government should not waste it's time legislating and what I think the original post was trying to get at is motive. Our basic criminal laws do not and should not differentiate between motives if we are to live in a society governed by the rule of law. We'd then have to have all sorts of sentencing guidelines. It may seem like parsing words, but it's actually very important. Intent has the higher burden of proof then motive, simply because motive does not have to proven beyond a reasonable doubt in order to get a conviction, intent does.

Now, I understand that society has a vested interest in not having a particular community terrorized. So I propose that if the prosecution has enough evidence to prove that a white person killed a black person with the intent to terrorize the black community they should charge them with the separate crime of terrorism as well as the crime of murder. The fact that they killed someone because of their race should bear no more on the charge than the fact that they killed someone because they had red shoes. The fact that they killed with the intention of terrorizing a community should. But it's something that the prosecution has to prove beyond a reasonable doubt before a harsher sentence should be handed out.

Hate crime legislation as currently written, while well intentioned, comes too close to policing thoughts, in my opinion. I think we should err on the side of caution when it comes to things like this.
Now a jury may hand out a lighter or harsher sentence because of motive and that's okay. But different sentences because of motive should not be codified in our laws.

One of the arguments I made in the post addresses my roommates most persuasive argument during our conversation. He said that hate crimes were really two crimes in one and as such deserve a harsher sentence. If that's truly the case, and I accept arguments that they are, then we should charge them with two crimes concurrently. It's more than an issue of semantics, charging them with one crime, the murder as a hate crime, gives the jury very little wiggle room. If they believe that the defendant committed murder then they necessarily have to convict them of a hate crime, even though the prosecution. Charging them with a separate crime would allow the jury to vote not guilty on the issue of intent on the hate crime, while still giving a guitly verdict for the murder.

In practice, what's most important is keeping the burden of proof high enough where only those cases where the prosecution can reasonably prove that the crimes were motivated by the victims membership in a protected group. Overall though, I think we should shift the onus from proving motivation to proving intent.