Hate Crimes

Ian Murray at The Edge of England’s Sword has an interesting post on a proposal by British MP and Home Secretary, David Blunkett, to ban expressions of religious hatred. He’s not impressed.

I couldn’t help but think how his arguments apply to the larger issue of hate crimes in general. Here’s an example:

Case 1
A man is assaulted and beaten unconcious by a white supremist because he’s ‘a nigger’.
Case 2
A man is assaulted and beaten unconcious by a deranged homophobe because he’s ‘a fag’.
Case 3
A man is assaulted and beaten unconcious by a street thug for his wallet.

In cases 1 & 2, a hate crime has occurred. In case 3, a robbery. Yet in each case the hypothetical victim was assaulted and beaten unconcious. The end result, the injury sustained, was identical. Were we to punish these crimes diffferently, what would be the rationale? That an additional crime is committed by virtue of the perpetrator’s thoughts? It’s difficult, to say the least, to determine a person’s motivation. How do you see into a person’s heart? What is to be the measure of the ‘hatred’ if the end result is equivalent? Is crime #2 more hateful than crime #3?

Are hate crimes to be extended to words? Some spoken words are crimes. It is criminal to incite a riot. Should it be a crime to make a racist statement? After all, one could claim harm in hearing or reading it. Or is it better to allow the larger community to speak as they will, depending on their good sense and self interest to sort the good from the bad. And as Ian points out, when you criminalize hate aren’t you creating an incentive for people to feel victimized? Will we, in each of our respective religious and ethnic groups, be parsing every comment and criticism trying to determine if it’s motivated by hate? What a playground for the race-card, religion-card, you-name-it-card demagogues. They’ll have a field day. “I don’t like the way that sounded. I feel hated. I’m filing charges.” Can we expect waves of class-action lawsuits? “What you said was hateful and 30 million people are insulted. Now pay up.” How will that chill the public discourse? Why venture criticism if you might be charged (then sued) for hate speech.

One could go on to make an analogy with the Salem witch trials. The real ‘crime’ wasn’t necessarily the dancing in the woods, it’s whether the dancing was done as an act of unchristian worship – are you a witch? Motivation is the crime. What is in your heart. We’ll have about as much success determining the contents of a person’s heart in a courtroom as they had by dunking the accused witches into ponds.

Let’s judge deeds, not try to peer into souls. In that direction lies the tyranny of the minority, the balkanization of the citizens and the crushing of dissent.

43 thoughts on “Hate Crimes”

  1. I love and totally agree with your last (and well put) statement. Thank you so much.

    God’s law is not man’s law – God can take Billy Budd into heaven, that is not Vere’s decision.

    I have a peripheral but I think related complaint: Los Angeles, too, wants to get into our minds – to rework its symbol to leave out the cross that seemed to rather humbly assert the role of the Spanish church in settling a town named, for God’s sake, Los Angeles. (I’m neither Spanish nor Catholic nor Californian but when our history is cleansed of its truths we are all lessened.)

    And, of course, Bush believed that the distinction was important in Texas – deeds of the mind we can’t judge and deeds of the body we can. Some of us may wince at his embrace of the death penalty, but I wince (I hope we all would) a good deal less at such an embrace for actions than for thoughts.

    By the way, each semester my students look at what is the best case scenario for this conflict – the prelapsarian Billy Budd sentenced for the act of killing the officer, Claggart. Even when we know the innocence of the actor’s heart, most of us have trouble with absolving him of the action of his body. I find the contrary a good deal more troubling – finding the man of innocent actions guilty even if we suspect his mind is guilty. (Actually, I can accept my husband’s glance at another woman a good deal better than if I were to find him drunk and unconscious in bed with one.)

  2. If this is the case, then I await your post condemning all of the supreme court decisions on civil rights cases that argue that discriminated individuals can only sue when there is evidence of intent rather than impact. However, my guess is that this post is not coming.

  3. Glenn,

    Michael said, “Let’s judge deeds, not try to peer into souls.” Are you saying that we should punish thought crimes? Or are you saying that intent should not matter in evaluating illegal acts?

  4. To a limited extent, we already do try to peer into a felon’s mind when we try to establish mens rea or premeditation.

    My problem with this kind of law is that it values one victim over another. Also, it leaves a lot more prosecutor discretion than I like to see. Imagine being told you could go to trial for a hate crime or plead to assault and battery. Imagine the prosecutor deciding whether to bring hate crime charges depending on how sympathetic he or the society might be to the class of victim or perpetrator. I defer to the legal experts in this blog, but this comes too close to violating the equal protection provisions of the Constitution.

  5. I think there’s a moral difference between running somebody over with your car accidentally, and doing so intentionally with intent to murder. I don’t think there’s a moral difference between trying to kill someone for his money, and trying to kill someone because of his race/religion/homosexuality/whatever. Advocates of hate-crimes laws implicitly believe that there is a moral difference in the second case. I think that this belief is by no means universally accepted in our society, and that as an unsettled moral and political issue it deserves much more, and much more open, debate before we enact any such laws. (Too much of the debate now consists of imputing chauvinistic motives to opponents of these laws.) And I agree with Mitch that to hold such a belief is to devalue some victims at the expense of others. As for prosecutorial discretion, one need only look at countries like Canada and France to see how hate-crimes laws are abused in practice.

  6. Glenn,
    Lets start with the definition of discrimination. To discriminate means to select. To choose the best piece of fruit. To choose among political candidates. To apply a criteria by which we reject or accept. Anyone who applies criteria to make a selection is discriminating.

    What is illegal is to make race, gender, religious affiliation or age a basis for selection for decisions involving employment, access to housing, etc. Therefore, by definition, illegal discrimination is a deliberate act. Belonging to one of the above groups being the criteria by which an individual is selected or rejected. Intent, then, is inherent.

    This is intended to provide equal opportunity but does not guarantee equal outcomes or results. Here’s an example of what I mean:

    1. I put a contract on house.
    2. Someone else puts a contract on the same house the same day.
    3. I have a higher income but they have a better credit rating.
    4. The seller chooses to accept their contract. The seller judges that, while we both have sufficient income, their better credit rating means it’s less likely their contract will fall through at some later date.
    5. The seller is Hispanic. The ethnicity of the person who submitted the accepted contract is Hispanic. I am European.

    Have I been illegally discriminated against? No. My ethnicity had nothing to do with the selection. It was purely financial. However, can’t I claim racial discrimination because the *result* of the transaction was that I, a European, lost out in a business deal between Hispanics? Of course not. There was never any intent to lock me out because of my heritage, even though that was the result.

    Where the problem gets more difficult is when particular groups are being negatively impacted regardless of intent. Buildings without ramps and elevators act as a barrier to handicapped people. There was no intent to keep them out but the result was that an entire group of people was being denied equal opportunity. So the courts ruled they must be given access. That was the fair thing to do regardless of intent. It’s not a black and white universe, it’s full spectrum. Most issues (and skin colors) are somewhere between the extremes.

    So you’re right. That post is not forthcoming. Intent, for most cases, is an integral part illegal discrimination.

    On the other hand, if you think you can make a case for results based legislation as opposed to opportunity based legislation I’m sure Jonathon will be happy to post it for you in your name. I predict you’re gonna have a really tough time defending that position though. Prepare to do battle. I also assume you feel I should be able to sue the above Hispanics for discrimination since the *result* was racially biased even though there was no intent.

  7. Mike, you should be right, but i think you are on shaky ground here. The difficulty is that you assume the term “discrimination” is used legally as it is in normal English. I checked a couple of internet sources for the legal meaning of discrimination.

    From legal-database.com

    Discrimination based on race occurs when individuals are treated less favorably than others who are similarly situated because of their race.

    From legal-definitions.com

    Discrimination is defined as treating one person unfairly over another according to factors unrelated to their ability or potential, such as age, disability, sex, or national origin.

    So it seems that, contrary to the normal usage and definition of the word “discrimination”, the legal usage may not include the concept of intent.

    But you can’t just look at a word’s definition to know it’s meaning, you have to look at the actions of the community in question when the word is uttered.

    The Civil Rights Act of 1964 famously does not require equality of result. Thomas Sowell, on page 39 of Civil Rights: Rhetoric or Reality, 1984, William Morrow NY paraphrases the Title VII subsection 703(j):

    That subsection declared that nothing in Title VII required an employer “to grant preferential treatment to any individual or group on account of any imbalance which may exist” with respect to the numbers of employees in such groups “in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section or other area”.

    On page 41, he sees Lyndon Johnson’s Executive Order No 11,246 of 1965, creating the Office of Federal Contract Compliance as the key development. He traces the changing language from “goals and timetables” and “representation” in 1968 to “results-oriented procedures” in 1970 and finally

    In December 1971, the decisive guidelines were issued, which made it clear that “goals and timetables” were meant to “increase materially the utilization of minorities and women,” with “under-utilization” being spelled out as “having fewer minorities or women in particular job classification than would reasonably be expected by their availability…”

    This was of course backed up by The Supremes.

    But it’s not just an executive / judicial coupe. The Wikipedia article on Discrimination subhead “The Paradox of Discrimination” gives the example of the Detroit orchestra.

    In order to ensure no discrimination based on appearance, the Detroit orchestra hired musicians on a blind audition system. That is, they played behind a curtain and the committee did not see them. This did not result in “enough” black musicians being hired. In order to keep their subsidy from the Michigan legislature, they had to have a non-blind audition to ensure they hired a second black musician.

    Just because it’s the law does not mean it’s right. But we seem to legislate by result, not intent.

    Matya no baka…

  8. Some good comments on “hate speech” laws are here. Sjostrom writes that “the most important argument against hate speech laws is that they will (not may) be used selectively.” The same is true about hate-crimes laws.

  9. Matya,
    You and I must interpret language differently.

    Discrimination based on race occurs when individuals are treated less favorably than others who are similarly situated because of their race.

    That doesn’t mean you can judge by results. You need to show that because of their race or gender or religious affiliation or age that they were treated less “favorably”. To favor is grant a benefit, like a promotion or the accepting of the above contract.

    The law recognizes that there are winners and losers in issues that are contested in some way. It doesn’t seek to eliminate that. That’s impossible. Someone is going to ‘win’ a promotion or ‘lose’ a house. It’s unaviodable. What you need to show is that you were ‘selected’ out because of your race/gender/etc. That usually means intent.

    But as I also pointed out, sometimes discrimination of groups occurs when there is no intent. The courts have attempted to redress those issues. In Brown v Bd of Ed, the Board claimed they intended separate but equal. The results were always highly unequal, regardless of intent. So it’s not always clear cut. That doesn’t mean intent is not and should not be a necessary guideline.

    Discrimination is defined as treating one person unfairly over another according to factors unrelated to their ability or potential, such as age, disability, sex, or national origin.

    Isn’t that what I said?

  10. Mike, we do agree on our interpretation of language. We are in one community, which might be described as roughly philosophic and agreeing with the constrained vision of humanity.

    But we aren’t doing set theory here. Outside of mathematics, language is not immutable. It means different things in different communities.

    Unfortunately our community is not the relevant one in this case. We don’t write the laws, enforce the laws, or make binding rulings on whether the law and the enforcement is in harmony. The “legal community” is the relevant community in this case, so i looked at legal definitions.

    They did not contain the word “intent”. They did not contain words that are normal stand ins for “intent”, such as “willful”, “malice”, or “pre-meditated”. So the concept of “intent” and “discrimination” may not be linked in the legal community.

    The way to determine the meaning of language in a community is to observe the actions and reactions of members of that community when they use that language. So i looked (cursorily, not exhaustively) at the executive orders, the court rulings and some legislation around the term “discrimination”. Equality of result appears to be the determining factor.

    The implementation of Brown vs Board of Ed did not say that local schools reflect local demographic mixes so there is no intent to discriminate and thus no discrimination. The implemenation said regardless of the local demographic mix, bus the kids to redress the racial imbalance. The implemenation said that property taxes in Vermont vary by school district, so equalize the per pupil spending. Equality of result, not equality of opportunity was the telling factor. How you or i would read the language of the decision is irrelevant. The meaning of the decision can only be determined through the subsequent actions of the relevant community.

    Yes, of course intent should be a necessary guideline. But we don’t know intent. That is a main point in your original post on “Hate Crimes”. You are absoultely accurately correct on the danger.

    So what does the legal community accept as evidence of discrimination?

    Of course it is horrible, hypocritical, misleading, bad statistics, and on and on to equate equality of results to evidence of discrimination. Of course Mitch is right that it leaves too much leeway based on how sympathetic the prosecutor,society, or judge and jury might be to perceptions of the victim and accused. And of course Jonathan is correct in pointing out that the French and Canadian pattern of enforcement of hate crimes proves your point.

    Legally, a pattern of behavior that can be interpreted as discriminatory on statistical (equality of results) grounds appears to be punishable whether intentional or accidental – or even if you go out of your way to blind yourself to the distinction. That’s the way the legal community behaves, so that’s what the word means in that context.

    Face down in the mud.

    Matya no baka!!!

  11. My argument is predominantly this:
    When it comes to legislation attempting to enforce anti-discrimination practices the argument being put forward is that one must prove precisely what, when you are arguing against hate crime laws, you have already said is nearly impossible to prove.

    I understand one may be able to prove the intent of a document – and legislation is a document (although with business decisions intent is almost impossible to divine). What seems to be absent from most libertarians discussion of anti-discrimination laws is that, in fact, lawmakers, business executives DID and DO write legislation and make hiring/firing/promotion decisions using methodoligies specifically designed to avoid intent based litigation.

    Since we started with, and continued with hypothetical situations let me give you some real-world situations. I should begin this discussion by saying that I am an anglo male and that I was not one of the people fired in the first practice listed below.

    1) My previous employer laid off 10 people in our department. 2 of the layoffs where white guys. Both of these layoffs could have been seen a mile away – they did not get along personality-wise with the manager (or frankly anyone one else). Every other person who was laid off was a minority. This was 2002 in Chicago, IL folks. Was there stated discriminitory intent? Of course not. I would even go so far as to say that they would have never thought in their lives that they were intentionally kicking the minorities out. All they would say they were doing was keeping the people they knew were “good.” why did they know they were good? Frankly because of the social relationships they developed with the people who were like them.

    Now, do you know that I am telling you the truth about the quality of work being turned out by the eight fired individuals? I No, you dont. Is it possible they were let go because their level of achievement was not up to par with the rest of the organization? Yes. I would submit to you, however, that this is precisely why both sides they deserve their day in court. Intent can be, and frequently is masked.

    2) Since 1999 the chicago mayoral election has been a “nonpartisan” election – no party primaries or caucuses just an election followed by a possible runoff. Now, if you were to suggest to Rich Daley to his face that he worked to make this change in order to avoid running in a Democratic Primary that was increasingly dominated by voters of color before facing the general electorate you would probably come away with a black eye. Even more so if you had suggested that he engineered multiple opposition candidates in previous elections(and still frequently does so in lower level elections) specifically to disenfranchise voters (mostly of color but frequently not).

    3) Southern States STILL in 2002 divide congressional districts clearly along racial lines.

    State Population by self-declared race 2000 census

    Congressional District Map Louisiana:

    Census Here

    Districting here

    In none of the above cases can intent be divined but most people would argue that the practice is clearly descriminatory and victims of this kind of discrimination have little or no legal recourse based on the current interpretation of civil rights laws. Indeed the Voting Rights Act, as amended in 1982, covers impact as well as intent but the supremes since that time have predominantly used the law to PREVENT redistricting that encourages proportional minority representation.

  12. I’m confused. Are we talking about hate crimes or about racial discrimination by private employers? To get back to Michael’s example, I want to know why someone who beats a victim for money, or because he doesn’t like the victim, or because he wanted to beat someone today and the victim was in the wrong place at the wrong time, deserves less punishment than does someone who beats a victim because of the victim’s race, ethnicity or sexual behavior. I also want to know why we shouldn’t expect “hate crimes” laws to be abused by prosecutors and police, as similar laws have been abused in other countries.

    As for racial discrimination by private employers, I don’t accept that that should be considered a crime at all. Freedom of association and contract mean that we have the right to work for or not to work for, and to hire or not to hire, anyone for any reason, as long as we don’t use force or fraud to do so. Your argument seems to me to be both invalid and irrelevant to the issue of hate crimes.

  13. Jonathan,

    Did you read the discussion after the post at all? I suggest you do so. As for your arguments about discrimination. I can only say that I am glad that we live in a country where the 1964 Civil Rights Act and the Supreme Court have chosen to disagree with you.

  14. You appear to be arguing that some people who oppose hate-crimes laws which take the intent of the criminal into account, also support anti-discrimination laws which take the intent of the discriminating party into account, and that these positions are incompatible. However, you have not made a clear argument for why this should be the case, and you ignore my question about why criminals whose criminal intent is already established should be treated differently based on their having or lacking racist motivation.

  15. My argument lied specifically around the inconsistancy. I am, quite frankly, not sure what I think of hate crime laws. On the one hand, I look at the hypotheticals described by the initial post and I would agree with the post. I also would suggest that prosecutors, by and large, would probably not invoke the hate crimes legislation in those circumstances given tat they already have the ability to get a verdict guaranteeing serious punishment.

    However since people on blog seem to be enamored with hypotheticals let me give some:

    1) (OK this is not a hypothetical so sue me) An african american gentleman says “Bye, baby” to an anglo woman. An angry mob of white people hang him. The members of the mob are put on trial for murder in the court of a southern state. All members of the mob admit their actions and the reasons for their actions (that he said “Bye, Baby” to a white woman). Within minutes the all-white jury returns a not-guilty verdict.

    Are you suggesting that the United States government does not have a compelling interest to rectify this clearly racist decision? They would have no recorse if there was not some kind of intent-based law. A murder charge on the federal level would quite correctly be thrown out due to double jeopardy.

    2) A group decides that they will burn crosses on the lawn of the african american family that just moved in down the street. Their voices are picked out by some (white) witnesses so they actually get a conviction – misdemeanor trespassing and vandalism. They pay a $5000 fine but, more than likely, the african american family gets the message and moves away. Did the punishement really fit the crime?

  16. One thing that everybody seems to have forgotten is that this is not in the US, but in the UK. There are several differences.

    1. The UK has an official, established religion, the Church of England
    2. The UK has institutionalized discrimination against Catholics holding the prime ministership.

    It seems a little premature to go after anybody who mutters a religious epithet before both of these problems are erased.

    Good luck taking away the Queen’s title “Defender of the Faith”.

  17. TM Lutas, good points. However, widely publicized examples of “anti hate” speech-infringements in places like Canada and France suggest that the intent to impose such restrictions is not confined to the UK. Certainly it has support in the U.S.

    I think we’re right to be concerned, even if Murray’s focus on Blunkett’s scheme ignores its UK constitutional context.

  18. Glenn : 1) The federal government may have an interest, but it lacks jurisdiction. Murder is a state crime, and as such that would be the end of it. Historically, of course, the crime was more than a single instance of lynching. Thus the creation of a body of federal law based on an area where there was appropriate juristiction (Voting Rights Act, etc).

    2) Cross burning is not vandalism. It is an act of intimidation that has a deeper purpose. (After all – if everyone on the street set up a burning cross on the same night in their own yards there would be no vandalism – but the intimidation would still be there). It is that threat which is the crime, and can be dealt with as such.

    In the end, the arguements for “hate crimes” laws are mostly political – a way of showing a particular constituency that their status has changed. There is a certain virtue in that, although I would think the well-publicized enforcement of existing law would have an equal effect (as in the death penalties in the Byrd case). When it comes to symbolism, I personally feel that a multi-ethnic society is better served by a strictly neutral legal code, rather than an obsession with group identity.

  19. phwest,
    1) I abosolutely agree, laws were enacted to specifically address this and other issues. Just explain to me why the relevant portion of Civil rights legislation would not constitute the definition of a hate crime.

    2) This is precisely the reason for hate crime legislation – to criminalize realistic threats of violence.

    Once again, while I am undecided on the constitutional viability of hate crime laws I am primarily suggesting that, in arguing for intent-based rather than impact-based legislation for other civil rights issues (specifically discrimination in employment and voting) arent we requiring traditionally marginalized groups to a higher standard of truth than we are saying, generally is possible?

    Isn’t one of the principal arguments against hate crime legislation that thought is extremely difficult to determine? Wouldnt it be better to say that clear patterns of discrimination, for any group – blacks, whites, model train owners – is the standard by which we should be approaching all civil rights law?

  20. Of the examples you’ve cited, Glenn, neither proves a strong case specifically for hate crimes legislation. The first case, which is the murder of Emmett Till, if memory and a childhood spent watching “Eyes on the Prize” serves, illustrates a potential pitfall of the jury system. A lot of other cases having nothing to do with “hate crimes” could be found where defendants were acquitted despite being clearly guilty.

    The second demonstrates the general need for laws against intimidation, extortion, harassment, etc. Since these laws have existed for quite some time, I don’t see a need to add to them laws that punish certain motives in the commission of these crimes more than others.

    Any legal system will return, from time to time, results that are unjust. And yet to give in to the temptation to change the legal system when it produces the “wrong” results is very, very dangerous.

  21. This is precisely the reason for hate crime legislation – to criminalize realistic threats of violence.

    What?? Why do we need hate crimes laws for that? Are realistic threats of violence OK as long as you don’t actually hate someone?

  22. Glen, i think that the discussion you, Mike and i had on economic discrimination shows that a standard of evidence for hate crimes is not going to be based on intent but on result. Looking only at the concrete, not hypothetical examples:

    You showed in your layoff example the difficulty in determining social pressure from intent to discriminate.

    Sowell’s discussion of the changing language in the Office of Federal Contract Compliance shows that the implementors of the 1964 Civil Rights Act could not come up with a standard of evidence that did not explicitly contradict Title VII subsection 703(j).

    The redistricting and Detroit Orchestra examples show how legislatures simply go around the evidence and completely pervert the sense of the law.

    What then would we use as a standard of evidence for the act of an individual human? What constitutes a clear pattern? What do we accept as evidence of intent? The statistical and demographic patterns don’t even work well for large organizations with many acts to analyze. Sure, there will be isolated cases like Bobby Fisher and Al Sharpton who make repeated and explicit public and published calls for violence against certain groups. But short of media attention, how do you establish a pattern “beyond a shadow of a doubt”?

    A law that we can only implement and enforce in an arbitrary manner is not a law that will solve anyone’s problems.

    Matya no baka

  23. Once again, as I have said, I am not sure that I support hate crimes laws.
    I would, however, ask anyone to argue Why the portions of the Civil Rights legislation that covered the Emmitt Till case would not contstitute a Hate Crime law.
    If they do constitute one, what rational you have for arguing that the Federal Government does not have a compelling interest in stopping lynchings that go unpunished on a state level.

    My primary argument is that Hate Crime laws need to be understood in the context of the entire existing problem. We live in a society that is signifigantly marred by forms of discrimination – so signifigantly that the market, the popular culture and even are democracy are forever going to be negatively altered by that history of discrimination.

    Given that this is the case it seems one is presented with four choices.

    1) (Correct me if I am wrong, but from what I can see this is Jonathan G ewirtz and, to a certin extent, SparcVarks position) The state does not have a compelling interest in intervening in this problem – even to guarantee free access to free markets by consumers and potential employees or to prevent largely unpunished crimes. (Emmitt Till was a while ago but Harvey Milk is pretty recent by civil rights legislation standards). The market and a democratic society will take care of themselves.

    2) The government has a compelling interest and it ought to approach the problem by punishing crimes and discrimination committed with clear discriminatory intent. This would include advocating hate crime laws and enforcing intent-based civil rights legislation like the 1964 civil rights act and the pre-1982 Voting Rights Act.
    3) The government has a compelling interest and ought to approach the problem by looking for clear patterns of discrimination and require remedy regardless of the orginal intent of the policy or action. This position would support the post-1982 Voting Rights Act and other Impact-based legislation while not being particularly comfortable with hate crimes laws.

    4) The government has a compelling interest and ought to combat, in varying degrees, both discriminatory intent or patterns of discrimination.

    I think that I fall somewhat into camp 4. I can see the need for emmitt till prevention – especially when a burgeoning civil rights movement would, quite correctly, guaranteed anarchy in southern states without it. I grow uneasy when one uses it as a panacea for all ills but I am not sure that I don’t want a prosecutor to have it in their arsenal when they think that the potential punishment does not fit the crime based on the history of discrimination.

    The position I don’t think you can rationally take (and this has been my argument from the beginning) is to hold discriminated individuals to the standard of divining intent when we ignore this standard, arguing “Let’s judge deeds, not try to peer into souls.” when it comes to punishing criminals who engage in hate crimes.

  24. Boy, maybe I don’t understand the CRA of 1964 very well, but I thought it criminalized actions designed to deprive people of their rights guaranteed by the federal government in the fourteenth and fifteenth amendments – free access to public services, the right to vote, etc.

    Yes, the law was later used to try one specific lynching case a second time in a federal court so that a more just result could be obtained. But I don’t remember anything in the law saying “and if you commit a crime punishable at the state level we reserve the right to try you again at the federal level until we get a result we like”. Seriously, should the Milk case have been retried as a federal civil rights case because the accused was acquitted? What if he were to be acquitted again during the federal trial? Do you bring him to trial again and again until you get the result you want?

    On a more general level, the federal government has a compelling interest in stepping in to stop a situation in which state courts tacitly condone a wave of violence against minorities, but ignoring the double jeopardy provision of the fifth amendment when convenient is a dangerous precedent.

  25. The redistricting and Detroit Orchestra examples show how legislatures simply go around the evidence and completely pervert the sense of the law.

    It seems there are two issues here, if you separate them very carefully. There is a legal issue and political issue. The orchestra met the letter (and intent) of the law. But that left unresolved the larger *political* issue; there were no blacks in the orchestra. The legislature attempted to resolve the political issue regardless of what the law said.

    I’ve been thinking about the ‘intent’ question for two days now. I’m coming to agree that intent is probably impossible to divine in discrimination cases. But one needs to be very careful with how results are interpreted. I think you need to be able show beyond a reasonable doubt that you were denied a benefit because of your race/gender/etc. For example, that you were demonstrably the most qualified for a promotion but didn’t receive it, or were denied a house despite having all the best financial indicators. Still, how does that affect the person who WISHES to sell a house to a particular person for reasons of their own; for example, to their son or daughter?

    Thing is, that still doesn’t get us much closer to legislating human perfection. I can still be denied a promotion because my boss likes someone else better than me. If I’m not a protected group I have no recourse. I may be denied a job because I’m better educated and more accomplished than my potential supervisor and he doesn’t want the competition around. My only recourse in both cases is to find a different job. Freedom is my recourse, however imperfect that is.

  26. No one is trying to legislate perfection. No one, really, is even saying we can eliminate discrimination. What is being said is that clear pattrerns have been developed in society that in an overwhelming amount of instances affect historically discriminated groups and, as such, force us to look for a remedy. The “it cant be perfect without being oppressive, so lets not do it” argument simply doesn’t hold water. Just because we cannot approach 100% perfection doesn’t mean we should not at least be trying for 50 or 60%.

  27. I tend to favor pattern-based remedies – once again because of the problems with “peering into the soul” as you described. However, I also see the necessity of some intent based legislation for crimes that are frequently overlooked by lower courts due to local prejuduice. I see anti-lynching laws as one of those things.

    Once again, I think it is important in these situations not operate in hypotheticals. Legislatures, prosecutors and judges need the flexibility to take action whenever a broad pattern (and by broad I mean on the level of societal discrimination against people of color) of discrimination is evident – and to move away from such application if those patterns appear to be remedied or if there is a misunderstanding as to how best apply the remedy. What does that mean for employers and others? What standard do they live by? They need to be proactive in their methods and due extensive due dilligence to ensure that they are not falling into patterns of discrimination.

  28. Glenn Brown wrote:

    What is being said is that clear pattrerns have been developed in society that in an overwhelming amount of instances affect historically discriminated groups and, as such, force us to look for a remedy.

    The existence of such patterns does not prove, or even imply, that they were caused by discrimination. Differing patterns of achievement, and of occupational, residential and other preferences among members of different ethnic groups, are a universal fact of human history. Even if a particular ethnic or racial pattern is the result of hostile discrimination, it is far from obvious that the best remedy is more laws and governmental oversight. Indeed it may be best for everyone if the government imposes fewer rules, because rules designed to promote some mandarin notion of fairness tend to constrain economic growth, and economic growth is the best source of alternative opportunities for people who can’t get a fair shake in a particular place or profession.

  29. Glenn Brown wrote:

    [. . .]Legislatures, prosecutors and judges need the flexibility to take action whenever a broad pattern (and by broad I mean on the level of societal discrimination against people of color) of discrimination is evident – and to move away from such application if those patterns appear to be remedied or if there is a misunderstanding as to how best apply the remedy. What does that mean for employers and others? What standard do they live by? They need to be proactive in their methods and due extensive due dilligence to ensure that they are not falling into patterns of discrimination.

    In other words, we can’t identify the crime, the criminals or the victims, so let’s base our definition of the crime on a fallacy of statistical inference, and then give government officials arbitrary power to punish business owners and others who don’t show the proper deference.

  30. Glenn,
    Don’t you worry about your ability to prioritize values and “peer into other’s souls”? While you admit that perfection can’t be legislated, isn’t judging human intention aimed at such legislation?

    In my lame way, I tried to argue that our values vary and what Bradstreet might have thought was the highest of goods of intention, Franklin would think was unimportant–each would think the other’s value system dealt based on trivia. But both would agree, whether sins or errata, that actions were wrong.

    These deal with the good, the well-intentined. The Nazis believed in a twisted and evil truth; Stalin believed that it was good to kill quantities of people to control the populace (the show trials didn’t aim at a truth – twisted or not). Both were evil.

    Lynching was wrong because it was murder; the courts that excused these acts were unjust. Hate crime legislation isn’t going to make man good. Even the slow and open arguments within a society will only slowly draw man to see that the way of looking at the world of that lynch mob was wrong (and meanwhile, we are likely to develop other biases).

    But we can establish as just a court system as possible to deal with actions, so that such cases are tried on the facts.

    By the way, what do you want to do with the tiresome case of O.J. Simpson? Do you believe that he was exonerated on the facts? Do you believe the jury thought with its passions rather than its head? Do you think the police thought in terms of revenge and racism? Or do you think the jury found him innocent because of an attitude toward white women? I listened to very little of the commentary and none of the trials – I have no opinion. But I suspect that using the Till lynching becomes (whether you mean it to or not) an appeal to our heart rather than our minds, to the natural sympathy we feel not only for innocence but also for youth, for the tragedy of slavery and the stubborn and vicious nature of the South. The “Eyes on the Prize” someone mentioned is the kind of thing that has influenced all of us.

    And I’m glad you all have made the rest of us think about this so much.

  31. I think that “hate crime” legislation should only be enacted at the federal level to counter egregious state judicial decisions, e.g., 1930s federal “anti-lynching” laws to counteract some states’ inability to even conceive of a white man being found guilty of murdering a black man.

    A state having special statutes for “who” is murdered is the opposite side of the same coin that would exonerate a murder because it was one of “them”.

  32. Keith, are you saying you only want the Feds to overturn “egregious state judicial decisions” that are in the hate crime category? Or do you really mean the feds should overturn all similar micarriages of justice?

  33. Michael,

    I’m afraid I’m being as sloppy in my thinking as I think those who’d want to enumerate endless “hate crime” catagories are.

    My point (admittedly visceral) is that, as you clearly stated in your initial example, criminal indictment and conviction should be based on the act and consequences, not the imputed opinion of the actor.

    By “egregious state judicial decisions” I meant to convey a willful decision by those who should be administering justice to forfeit their responsibility and the necessity of a higher authority to both counter those decisions and hopefully change that culture – that killing a black, homosexual, or paraplegic is murder, not either a “special” kind of murder or, indeed, not a crime at all.

    The “hate” I’m writing about countering isn’t the individual muderer’s hate but the institutional hate that would try to hide behind a morally currupt “states rights” ploy.

  34. The concept of “hate crimes” is thought policing..nothing less…and any measures to enforces such punishment accordingly is doomed to utter failure..as there is no way in hell that this could ever be applied equitably and fairly across the board…not even close….

  35. Ginny,
    You gotta bring up OJ????!!!! :)
    I guess my inclination is to believe that he probably committed the crime but the showed (and I hope this affected public policy in Los Angeles) that not only just about every African American, but a significant number of Anglo’s did not believe that the LAPD could leave racial prejudice at the door when investigating a crime. It proves at least that they couldn’t trust a cop who went on record as having planted evidence in the past to convict African Americans to do so.

    I would hope the Till argument appeals to both hearts and minds. There are, in my opinion, very practical reasons why we need government intervention in these situations. I would even suggest that promoting increased I would even submit that the evidence has shown that such intervention has been, largely, successful. Thank you for your nice words, I suspect, however, we will have to agree to disagree on this issue.


    Aside from the fact that you demagogued
    the issue and created a paper tiger out of my argument you have also failed to provide any evidence that an end of government intervention in cases of pattern based or intent based discrimination would create a more free, more tolerant society or that past intervention of the government to do so has failed to do so or created an oppressive environment for non-marginalized groups.

    Basically you have said nothing I couldn’t get from the Libertarian party platform.

    I would submit to you that you have a dataset consisting of 80 years of history between the end of reconstruction and the civil rights movement to try and prove your point.

    If you would like, I can provide ample evidence of my position. Unless you speak in something other than inflammatory sentences or ask for more information, my discussion with you is over.

    For everyone else, thank you for an interesting debate.

  36. Glenn,

    The burden of evidence is on you, as you are insisting that the government should “intervene” — i.e., punish selected individuals — in order to create particular societal outcomes. It isn’t my job to prove that you are wrong. The burden of proof is on people who advocate government actions against individuals, to show why such actions are justified. That’s an easy test for most crimes, where someone hurt someone else and the government is justified in punishing the guilty party.But you are trying to argue that Group B should be punished because some of its members hurt some members of Group A. So far your evidence consists of assertions that differences in group outcomes must have been caused by discrimination and must be remedied by governmental action. You haven’t shown why these assertions are valid, and I don’t believe that they are. If you want to provide real evidence you are welcome to do so.

  37. Mr. Brown,

    I would like to engage again because, frankly, I think this vision is truly pernicious.

    Mr. Gerwith’s arguments as usual have the strength and clarity of the head while I tend toward the discursive and anecdotal. So, I’ll try to explain why the latter supports, it seems to me, the former arguments. First of all, Mr. Brown, you want to talk about reconstruction. That was evidence of what Mr. Gerwith is (I believe) speaking of, as well as was Mr. Hiteshaw. It was a period in which fallible men commited many sins. Their sins were hardly those of following facts and attempting to arrive at a justice that appreciated the divine in every man, that saw all as equal before the law. Wasn’t that exactly the problem?

    Those of us that disagree with you want to talk about human nature, about truth, about the way that facts should be honored and the subjective given relatively short shrift in the courtroom. I suspect that the others believe (as I do) that these are values we value precisely because of the sins of which man is capable – post-Reconstruction American south a good example. That was a time when the color of a man’s skin influenced the kind of justice he was likely to get. But in other places and other times, color of skin has been less important than other characteristics. Remedies that look at that problem alone ignore human nature, the tendencies of human nature.

    The OJ case is pretty, well, low level for the arguments I’ve been impressed by on this site, but it is an example of what most of seem to believe was probably an unjust verdict – he probably did it. Mr. Brown doesn’t have much trouble with the acquital because it demonstrates principles he thinks are important (that the police force should be above suspicion). Whether or not they deserve that suspicion may be up for argument – I don’t know. I suspect that some of the suspicion is justified – there seems quite a bit of evidence that the LAPD had lost a sense of the importance of justice and had little respect for the inhabitants of the city through which they moved. That that suspicion was demagogued is also, I suspect, true. But the point is, the right people were disbelieved, the right people by Mr. Brown’s standards were “punished” by what went on in that lengthy battle. But a woman (a good deal less youthful and innocent than Till, perhaps, but hardly one deserving a bloody death) is dead and the justice system did not do justice. It did not do justice because for many people in that courtroom and on that jury the facts were not important. That bothers me. It doesn’t keep me awake nights – I’m sure a lot of guilty people aren’t convicted. And it would be worse if (and I’m sure there are many cases of this as well) if an innocent man were in jail. The state is the system is “the man.” When it makes mistakes that punish, it is a worse injustice than when it makes mistakes that acquit. Still, OJ’s guilt seems to not only be the general consensus, but Mr. Brown’s belief and his reaction to that gives me pause. For one thing, it seems to me that Mr. Brown is a bit too willing to teach us lessons, to – to get back to Mr. Hiteshaw’s early point – peer into another’s soul and judge.

    We have spent thousands of years trying to develop a system that overcomes our tendency to act not out from some attempt at justice but rather from our instinctive identification with our kind. (We have a pretty sure sense of who Mr. Brown sees as his kind – I do not mean that un a snarky way, I have no doubt he is a quite nice man. Still it is “his kind” he would reward and those that are not “his kind” he would punish.

    Traditionally our kind has been our tribe, but the tendency is powerful and sometimes it is political, ideological, class, religion, gender, geographic identity. Mr. Brown would throw over the lesson we have learned and only with difficult are able to apply – the fact that examining the facts is going to get us closer to the abstraction of justice and that our personal passions need to be subsumed to that difficult task. Who someone is, how we feel isn’t the deal – what someone did is. Mr. Brown would argue, I assume, that the emotions of those who lynched Till are at fault and he is trying to teach them an appropriate lesson. Well, right now, in this place, most of us would think Mr. Brown’s “lesson” is appropriate – the murder of someone becaue of their color is a great wrong. It seems to me that such incidents are the very lessons that prove Mr. Brown is wrong.

    But, if we looked at the world as Anne Bradstreet did, we might judge another’s worth on their acceptance of a particular dogma. Certainly how someone thought were the grounds for deaths in Stalin’s Russia and the Spanish inquisition, who you were sent you to concentration camps in Hitler’s German. Franklin cuts his son out of his will because that son chooses England and the King over America and the revolution; he can rot in jail, he pretty much says.

    Even today some of us may think today that those old priests had the “truth.” One of my old boyfriends, a medievalist, thought the worst thing in the history of the world was the Reformation. With such a view, how much would the world have been saved by breaking a man on a wheel for thinking? I don’t care if he thinks that – I do care if he had acted and tortured me until I accepted his religious vision.

    But the gift we have been given is John Adams defendiing British soldiers. It is a vision that transcends; it comes to us in John Donne’s “Never send to know for whom the bell tolls” because “every man’s death diminishes me.” One man’s death is not more important, more tragic than another – and our justice system should never imply that it is.

    Okay, I’m not a lawyer; others on this site are, I’m sure, more lawyerly. This may seem discursive – but I don’t think it is irrelevant. You say, these are libertarian talking points. Ah, no, they are the core beliefs of western civilization, they are the greatest gift we can give to our children. I do know the law but I do know what ennobles us. And we have learned this with much pain.

  38. Ginny,

    My argument about the O.J. case has little to do with who I think should be punished or not because of society’s ills. My argument about it (and I really dont want to go on about this because I think the media on both sides of the issue overdid the whole thing) is this:
    1) People are only to be deprived of life liberty and property in this country by due process of law (those who have looked at my arguments about civil rights would know that I argue that even in pattern-based determinations of discrimination).
    2) The way we have determined to arrive at criminal guilt is via a jury trial where the jury unanimously finds the defendant guilty by reasonable doubt.
    3) The likelyhood that a police officer who had gone on record saying they had planted evidence to convict african americans in the past can be reasonably assumed to be someone who would do so in the future and, therefore in the case in question. Therefore, reasonable doubt.

    There may or may not be more damning evidence for Mr. Simpson of which I am not aware – I, like you, got all the information I had from brief glimpses of the evening news. If there was, I would probably have sent him to jail.

  39. Charles Murray also seems to think equality of result is the legal standard in discrimination cases. I’m only half way through Losing Ground (can you believe i’m only getting around to reading it now??? Baka baka DAI baka!)

    In chapter 7 “Education”, pg 109 he cites Green vs. County School Board 1968:

    … the court said that “freedom of choice” solutions were inadequate unless they actually resulted in mixed classrooms, and that desegregation must be ended “root and branch” by whatever means worked.

    Murray traces the switch from equality of opportunity to equality of results to a “Kuhn like paradigm shift” even earlier than Sowell marks the change. He spends the first part of chapter 3, “Implementing the Elite Wisdom” discussing the shift among “people who deal professionally in ideas” and contrasting it to the shift in the New Deal, which had a broader base of support. On pg. 43:

    We may debate the list of new premises and their order of priority. Theodore White (among others) describes the shift from “equality of opportunity” to “equality of outcome” as a fundamental change. The sponsors of the Civil Rights Act of 1964, with Hubert Humphrey in the lead, had come down adamantly on the side of equality of opportunity – the nation was to be made color blind. The wording of the legislation itself expressly disassociated its provisions from preferential treatment. Yet only a year later, speaking at Howard University commencement exercises, Lyndon Johnson was proclaiming the “next and most profound stage of the battle for civil rights,” namely, the battle “not just [for] equality as a right in theory but equality as a fact and equality as a result.”

    He cites as further evidence the notion that, since “the system” was at fault for holding people back, even the working poor were entitled to public support. This contrasts with the pre-1965 notion that having a job meant you were doing OK.

    Matya no baka

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