Thursday, October 13, 2005

The trouble with thought crimes...

I remember when the first hate-crimes laws were proposed. I had a queasy feeling about it, even though I'm a member of one of the groups of people thought to benefit from such laws.
Now, as you can imagine, mine isn't a popular view with my gay and lesbian peers.

It seemed to me that attaching stiffer penalties to crimes based on motivation of the perpetrator created an uncomfortable dynamic, whereby we defined and assigned value to individuals based on their "otherness". My sister was bartending at the time--and it seemed horribly wrong that should she be assaulted and murdered in an alley some night upon leaving work, it could be prosecuted differently than if I were assaulted and murdered in the same alley, upon leaving a gay bar. It also seemed both rash and wrong to make the motive--the thought--part of the crime itself.

Hate crime legislation doesn't seem to have made much of a dent, at least not here from the front lines. We're trapped in a painful tension of valuing ourselves based on diversity--embracing our "otherness"--and being separated from the greater part of our own culture and society by that same difference. I deeply fear that every time we create some official means of separation, we only deepen that dichotomy.

It's still a pretty regular occurrence to hear of someone getting beat up coming out of the wrong bar. There's apparently been a new rash of cross-burnings in the midwest, lately, too.
Recently, someone vandalized a local African American couple's house, here in the Seattle suburbs. They spray-painted racial slurs, swastikas, and obscenities all over the exterior.
It turned out to be a couple of local teenagers. They confessed. You've got to wonder just where they learn this stuff, don't you. The local news team interviewed people. The neighbors all professed their shock and dismay. I'm sure most of them were sincere.

Unfortunately, there seem to be some unforseen consequences stemming from an attempt to prosecute ideology. In the hysteria following the 9-11 attack, we passed a bunch of terrorism and Homeland Security legislation--a natural progression of trying to sort crime by the thoughts and motives behind it. Now we've come to a place where nine United States Senators and the White House all think it's just fine to torture people--as long as we think they're terrorists. It's just fine to hold even American Citizens indefinitely and without charge--as long as we think they're terrorists.

We've long made distinctions that benefit someone who commits a crime, with mitigating circumstances, self-defense, and other grounds for leniency. Is that really intrinsically different than finding grounds for even stiffer penalties? I actually think it is. Recent emphasis and movements for victim's rights aside, I applaud compassion built into our laws for both the perpetrator and the victims, whenever possible. I remain distinctly uncomfortable by attempting to impose greater penalties by peering into the motives of the defendant.


TillyLost said...

I'm sort of conflicted on this one. Legislation targeting specific forms of discrimination I think have been a great social good, and on the surface of it legislating against hate crimes seems like an offshoot of that. But it's not, really, because an assault or a murder is just as bad whatever the motive.

Fundamentally, I think you can legislate against action but not thought, so I'm pretty sure I'm agreeing with you. It's the discrimination not the prejudice we legislate against. So it should be the actual crime and not the motivation that matters.

The conflict for me comes with the knowledge that crimes motivated by hate are sometimes not taken seriously, or investigated properly. Like the tragic case of Stephen Lawrence (
)The legislation that targets hate crimes at least makes it feel like something is being done. But I'm wary of anything that is designed to placate rather than be genuinely effective.

I think I need to look into this more. Sorry for the long ramble.

Mac said...

Dont' apologize, Tilly--I'm delighted to have you here, and glad you expressed your own thoughts.

I'm still pretty conflicted about this, as well. It's simple to just say, "we should just prosecute the crime itself" but that doesn't quite work out, in the real world.

It doesn't work because spray-painting a swastika on a synagogue is clearly intrinsically different than tagging a freeway underpass--which is, I think where you were going with it, too.

I'm not sure of the best way to shake this down for appropriate legal definitions, either.

leap_b4_ulook said...

Since the crime isn't just against the one victim, but is meant as a threat to others of his/her "kind," maybe that's the distinction that requires greater punishment, and not necessarily the "thoughts" behind the action. Maybe the greater punishment is for the larger number of victims. I don't know, but you've got me thinking.

Jean Marie said...

I think the law does it's collective best to right a horrible wrong. In the process, it appears they're singling out a specific group. In reality, they've no idea how else to handle it and maybe hold hate crimes up as an example to others of that particular evil ilk. Hence, the tougher punishment.

Just a guess, but, you've got me thinking as well.

Dawno said...

I see you've succumbed to the comment verification meme :-)

A defendant's motivation for a crime is a big factor in deciding what level of crime will be prosecuted and what the statuatory limits on the ultimate sentence will be. Statuatory sentence limits are a big reason for the 'add ons'.

If you shoot someone accidentally and they die it's manslaughter. If you shoot someone in a fit of passion without pre-meditation it's distinguished from a murder that is planned out (murder 1, murder 2, murder with specials - like in the commission of another felony or in a kidnapping - which can lead to capital punishment in some states).

If you steal from the till to feed your family that would most likely get you a lower sentence (perhaps just restitution) than if you steal to buy a luxury or just to make the boss suffer.

Hate crimes are a type of deliberate act that is distinguishable from a similar crime in that there is a pre-meditation against a class of people, they aren't just a crime against a random person, they are intended to intimidate the rest of the class as well. So a hate crime isn't against just the victim and thus the larger picture should be figured into the punishment for the crime.

At least, that's how I see it.

Mac said...

Dawno--you're sliding ever further to the left...*grin* "Come to the dark side, Dawno...Feel the power..."

I have indeed succumbed. I spent two hours swatting spam the other night. That just seemed excessive.

Penelope said...

Just wanted to let you know I'm reading. :)

I'm trying to keep a low profile, but I bet you can guess who I am. ;)

You're a great writer, Mac.

Mac said...

PLH--I won't tell. :) Nice to see you here, and thanks.

Francesca said...

I share your view.

I completely understand the reasoning behind the legislation, but crime is crime.

It reminds me a bit of how people here on the island where I live sometimes suggest that crimes against tourists show carry stiffer penalties than those against locals. A big no-no in my book!

Let's just get serious about crime in general...and stamp it out at every juncture!

Jean Marie said...

Dawno explained it very well. It's true the crime isn't just against one individual, but an entire group.

Thanks Dawno and you too Mac-great post.

Dawno said...

My feet are firmly planted about 5 centimeters right of center, thank you. I mean, isn't 'get tough on crime' conservative? You gonna have to 'splain how I'm goin' leftie...and leave the Birkenstocks out of it.

Ms M said...

This is a very interesting post not least for the comments that it has received. Dawno, you hit the nail on the head, in my opinion, by identifying that while a crime can be committed and/or targeted to an individual, the law can recognise it in its social context and for its broader meaning.

I think it is critical to recognise that the law has a role to play in social development. In many cases, it is an effective tool for supporting social change, for instance, when a change agenda has just been introduced. In this sense, having different penalties is strategic as well as culturally and historically specific. Penalties may change over time depending on the political and cultural context.

However, in the Australian context, I have wondered for some time if some pushes for legislative changes such as "stiffer penalties" for crimes reflects an over reliance or emphasis on the law to resolve complex social issues where the law is only part of the solution. It is tempting but potentially dangerous, I think, to consider that the law is somehow "above" the social agenda, rather than understanding it as enmeshed in it. The danger is expressed when the law is perceived to be the forum for resolving all social issues, particularly difficult ones, when developing an alternative social response may actually result in a better overall resolution.

Dawno said...

Thank you Ms M. Today is one of those days where actually having someone validate a thought I've had means more than you can ever know. I've been going thru a couple of weeks of wondering if I'm really as stupid as some people in "real life" are making me feel.

Deep dark Dawno secret: I wanted to become a lawyer when I was younger. Criminal prosecution. Yep. Dawno for DA.

Mac said...

Dawno, my experience of you is that you're fair-minded, thoughtful, compassionate, and quite intelligent indeed. :)

You'd have made a hell of a good DA.

Ms. M--I think you're very right about perceiving laws as a remedy for cultural ills. I think we're seeing that played out right now in the battle over Miers' nomination for the US Supreme Court.

Ms M said...

Hi Dawno, it's never too late to go for your dreams. My mum just completed her Masters in Pyschotherapy soon after her 60th birthday. She used to run a Fashion shop. Also, a recently appointed judge to the Australian high court, judge Susan Crennan, only started her legal studies when she was in her mid thirties.

Dawno said...

Thank you Mac and Ms M. I can't see me at 48 straining my remaining brain cells to remember the minutae of legal case law for a couple years, taking the bar exam and then starting (if it's even possible to get hired) at a seriously reduced rate of pay at the bottom of the procecutor's staff somewhere. Besides, it was my dream when I was young, I have a new one now. I'll probably blog about it one of these days. It has to do with books (no, not writing them - tho' that would be nice).

Mac, thanks again for having a cool blog with great commenters!