Category Archives: Criminal Justice

Hate and Crime and Punishment

Can the law protect members of disfavored groups against hate crimes without running afoul of the First Amendment?

Indiana is one of a very few states that does not currently have a hate crimes statute, and a number of very well-meaning people point to that as evidence that we are condoning acts motivated by animus based upon race, religion, ethnicity or sexual orientation. Although animus may well explain some part of the opposition to such measures, there are legitimate reasons to go slowly when we consider criminalizing “hate.”

The American Constitution differentiates between actions which government is entitled to prohibit and/or punish, and ideas–no matter how harmful or despicable–that government is prohibited from sanctioning. (This distinction escapes too many of us; it is the reason that those “beleaguered” bakers and florists are free to disapprove of same-sex marriage–and to voice that disapproval–but not free to refuse service to same-sex customers.)

That brings us to another misunderstanding–a conflation of criminal intent with motive. 

In order for government to prove that a crime has been committed, a prosecutor must show that the accused actually intended to commit a crime. An affirmative answer to “Did the accused know it was rat poison when he put it in the stew he fed to the deceased?” establishes criminal intent. If the defendant can prove it was an accident–that he thought that tin contained paprika–he can be punished for negligence, but not for a crime.

His motive for putting rat poison in the stew, however, is irrelevant to the punishment.

Many proponents of so-called “hate crimes” legislation want to add punishment for the motive that led to the criminal act.  (For example, if I beat you senseless after we fought over money, I might face a sentence of 2-4 years, but if I beat you senseless because I hate  Episcopalians, the sentence range would increase to 3-5. We’d add a year based upon the motive.)

Opponents note that this approach effectively criminalizes the thought–the idea– that prompted the attack.

Proponents argue that these statutes send a message–that they are an important signal of our collective disapproval of bias.

Fortunately, there is a middle way that should satisfy the concerns of both camps.

When a defendant has been found guilty of a crime–murder, battery, vandalism, whatever–the typical statute provides a range of fines or sentences. The Judge decides whether to impose a sentence at the top or the bottom of that range, and s/he makes that determination after taking into account all mitigating and aggravating circumstances.

For example, if a first-time offender is facing 2-4 years, and has exhibited remorse, the Judge may opt for two years; if the defendant is a repeat offender with an “attitude,” the Judge may opt for four years.

There is no reason why the existence of bias cannot be an aggravating circumstance. (I would be surprised if it isn’t already part of the sentencing calculus in most courts.) Such an approach–explicitly used in several jurisdictions–avoids setting a fixed penalty for “bad thoughts” without requiring the criminal justice system to ignore the kinds of hateful influences that we collectively deem socially detrimental and (truly) unAmerican.

Hate crimes legislation is just another example of the cautionary adage: how you do something is every bit as important as what you do.


The Real Bottom Line

Washington Monthly’s Political Animal blog recently considered the impact of recent revelations that Exxon had covered up–lied about– decades of its own research on climate change.

In a move that echoes similar scandals involving the tobacco industry and cancer research, Exxon conducted research into fossil fuels and global warming, discovered it had a major problem that threatened public safety, and quickly decided to start intentionally misleading the public and peddling doubt and uncertainty rather than confront the problem.

Exxon could have chosen to expose the problems with fossil fuels and become the world’s leading investor in and producer of renewable energies. It would have been risky and reduced short-term profits, but it would potentially have set the company up for massive long-term growth. It would also, of course, have been the right thing to do. But that’s not the path Exxon chose. Exxon chose to lie, cheat, cover up, collude with other oil companies, and bring the entire world to the brink of global climate disruption and destruction.

When does a company’s efforts to protect its bottom line become criminal?

When small businesses engage in fraudulent behaviors–the auto mechanic who lies about the work your car requires, the doctor who performs unneeded procedures, the jeweler who sells you a “gold” necklace that isn’t–we prosecute those responsible.

The powers-that-be have deemed certain financial institutions “too big to fail”– and also, evidently, too big to prosecute. Is “big energy” similarly exempt from the laws that govern the rest of us?

Does the sheer magnitude of the harm they’ve done somehow insulate them?

What’s the real bottom line?

Complicated Problems, Bumper-Sticker Solutions

A recent column in the New York Times reminded me (as if such a reminder was needed!) of American lawmakers’ penchant for “solving” problems by passing “quick and dirty” laws that may placate a constituency, but do little to actually solve the problem at hand–and often do considerable collateral damage.

A particularly pernicious example is the one highlighted by the Times, 

a wave of laws around the country restricting where people convicted of sex offenses may live — in many cases, no closer than 2,500 feet from schools, playgrounds, parks or other areas where children gather. In some places, these “predator-free zones” put an entire town or county off limits, sometimes for life, even for those whose offenses had nothing to do with children.

Protecting children from sexual abuse is, of course, a paramount concern. But there is not a single piece of evidence that these laws actually do that. For one thing, the vast majority of child sexual abuse is committed not by strangers but by acquaintances or relatives. And residency laws drive tens of thousands of people to the fringes of society, forcing them to live in motels, out of cars or under bridges. The laws apply to many and sometimes all sex offenders, regardless of whether they were convicted for molesting a child or for public urination.

I vividly remember a friend’s anguish when his younger brother–who had just turned eighteen–was placed on Indiana’s sex offender registry for “molesting” his sixteen-year-old girlfriend, despite her protests that she had initiated their voluntary encounter.

I understand the desire to “do something” when a genuine molestation occurs. I understand the pressure on lawmakers to respond to a parent’s demand for action (particularly when that parent is politically active or connected). But at some point, everyone needs to take a deep breath and recognize the unintended–and pernicious– consequences of “solutions” created by people who fail to understand the complexity and dimensions of the problem.

This Is Why We Can’t Have Nice Things….

Like reasonable laws.

Recently, Indianapolis City-County Councilor Kip Tew sponsored an ordinance that would  require people to file a report if a gun they owned was lost or stolen.

Laws requiring gun owners to report loss or theft of a weapon help police in several ways:  they deter gun trafficking and discourage straw purchasing; they  facilitate the return of the guns, if found, to their lawful owners; and they help police disarm people who aren’t legally eligible to possess firearms.

As an officer friend pointed out recently, timely reporting of gun thefts and losses allows police to trace guns more effectively, and makes the successful prosecution of users of stolen guns more likely.

A very small step, granted, but a step in the right direction.

Currently, however, there aren’t enough votes to pass the measure. Not because council members are opposed to it, but because several of them worry that it might violate a relatively recent provision of the Indiana Code–a provision so ridiculous I couldn’t believe it was real.

Here are the relevant parts of Indiana Code 35-47-11.1 – 7.

Except as provided in section 4 of this chapter, a political subdivision may not regulate:
(1) firearms, ammunition, and firearm accessories;
(2) the ownership, possession, carrying, transportation, registration, transfer, and storage of firearms, ammunition, and firearm accessories; and
(3) commerce in and taxation of firearms, firearm ammunition, and firearm accessories.

Anyone “adversely affected” by such an action is authorized to sue for damages.

This is yet another example of the legislature telling local governments what they can and cannot do (my Home Rule complaint). And in this case, what our local folks can’t do is anything that even smells of gun regulation.

But the rest of this abomination is even worse:

A person is “adversely affected” for purposes of section 5 of this chapter if either of the following applies:
(2) The person is a membership organization that:
(A) includes two (2) or more individuals described in subdivision (1); and
(B) is dedicated in whole or in part to protecting the rights of persons who possess, own, or use firearms for competitive, sporting, defensive, or other lawful purposes.

Sec. 7. A prevailing plaintiff in an action under section 5 of this chapter is entitled to recover from the political subdivision the following:
(1) The greater of the following:
(A) Actual damages, including consequential damages.
(B) Liquidated damages of three (3) times the plaintiff’s attorney’s fees.
(2) Court costs (including fees). (3) Reasonable attorney’s fees.

Short version: if Indianapolis tries to protect its citizens by controlling guns or ammunition in any way whatever, the “membership organization” (i.e. the NRA) can sue the city and recover attorney’s fees and punitive (“liquidated”) damages from our tax dollars.

Think about that.

I can’t imagine what “damages” the NRA would suffer from the passage of an innocuous and helpful measure like reporting stolen guns. (For that matter, putting on my lawyer hat,  I don’t think that “theft” comes within the definition of “ownership, possession, carrying, transportation, registration, transfer, and storage,” but I do understand council members’ concern that it might.)

If you ever want an example of the way a well-heeled lobby overrides the will–and the welfare–of mere citizens, this one’s a doozy.

“Urban” Family Dysfunction and Red Christian America

In the wake of the protests in Ferguson and Baltimore, there has been a lot more finger-pointing than sound analysis, with progressives accusing police of systemic disregard for the lives of black citizens and conservatives blaming “urban” (aka black) family dysfunction for a culture of lawlessness to which police justifiably respond. (If people don’t break the law, the meme goes, they have nothing to fear from the police.)

As with all gross generalizations, both of these broad-brush descriptions are wrong. Worse, to the extent they become common wisdom, they get in the way of our ability to solve real problems.

Are some police officers racists? Sure. But most aren’t–most are trying to do difficult jobs in situations that are often dangerous. That said, many more–especially but not exclusively in smaller communities– have been inadequately trained or badly managed, and those are issues that we can and should address.

The stereotype about black families has long been a staple of apologists for official misbehavior. It undoubtedly fits some urban families. But ironically, recent research suggests that the stereotype is much more likely to  apply to white families in deep-red, rural America. As Thomas Edsall recently reported

In the fall of 1969, Merle Haggard topped the Billboard country charts for four weeks with “Okie from Muskogee,” the song that quickly became the anthem of red America, even before we called it that.

“We don’t smoke marijuana in Muskogee, we don’t take our trips on LSD, we don’t burn our draft cards down on Main Street, we like livin’ right and bein’ free,” Haggard declared. “We don’t make a party out of lovin’, we like holdin’ hands and pitchin’ woo.”

Times have changed.

Today Muskogee, Okla., a city of 38,863, has nine drug treatment centers and a court specifically devoted to drug offenders. A search for “methamphetamine arrest” on the website of the Muskogee Phoenix, the local newspaper, produces 316 hits.

In 2013 just under two-thirds of the births in the city of Muskogee, 62.6 percent, were to unwed mothers, including 48.3 percent of the births to white mothers. The teenage birthrate in Oklahoma was 47.3 per 1,000; in Muskogee, it’s 59.2, almost twice the national rate, which is 29.7.

Maps of social dysfunction–out-of-wedlock births, drug use, domestic violence, divorce, etc.–show these behaviors largely concentrated in Southern, bible-belt states. Similarly, a recent study by the Centers for Disease Control soundly rebutted the widely-held stereotype of the absent black father; the CDC found that black dads are, if anything, more likely to be involved with their children than fathers in other racial categories.

The problem with stereotypes–of police, of urban dwellers, of racial groups–is that they prevent us from seeing individuals and situations as they are. Pat answers and dismissive characterizations don’t solve problems–they perpetuate them.