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.


  1. I learned Indiana has no Hate Crime laws after being attacked, injured and robbed on my driveway 18 months ago. (Still waiting for resolution to that case.) I was elderly woman #3 of 4 who were attacked and robbed during a two week time span. After the criminals were arrested, I asked the IMPD detective if Indianapolis had “granny bashing” laws…his response was a blank stare and to ask me what that was. The following week, a 79 year old, wheelchair-bound man was beaten and robbed in a home invasion robbery. A few months later a 69 year old woman was badly beaten and pistol whipped but drove off her three armed young male attackers and kept possession of her van.

    I believe we can all agree the recent attack in Bloomington was a hate crime – it doesn’t matter that he was drunk – his actions and his words defined who and what he is and why he committed the crime. Being drunk or on drugs is a normal condition for most criminals – it is called “false courage”. I’m sure the woman was not specifically targeted; he was hate filled and happened to be drunk when he noticed her. So many crimes are blatantly hate motivated that is should be criminal NOT to consider and charge them as such. Other crimes, such as the rash of attacks on the elderly which included myself, could be questionable even though we are all elderly. We were easy targets…except for the brave woman who fought off three armed young men to keep her property:) Ya gotta love her!

    My battles with the local Prosecutor’s Office includes their refusal to file charges for all crimes Mark and Lindsey committed against their four known victims; including no Battery, Fraud and Forgery in my case alone. The reason I was given is “…the more charges we file, the more charges we have to prove…” This is their job; they do NOT want a Hate Crime law added to the books…it would mean more work for police and prosecutors. In my case; some of my injuries are permanent but I have never received a Release of Information form to obtain my medical records from Methodist ER. Nor have I received Release of Information forms for my financial records; Mark and Lindsey Jones used my two credit cards a total of eight times that day…all fraud and forgery crimes but they are not and will not be charged for them. Only one Fraud charge has been or will be filed.

    Do we need a Hate Crime law in this backward state; you betcha’ Will we get one…No way, Jose…unless we remove the inept current administration and replace them with leaders who know and UNDERSTAND the law as it is currently written and where changes/additions are needed. We have racial, LGBT and anti-religion problems which need to be faced head on. Ex Marines are obviously not qualified to do this; look closely at our current “Public Safety Department” for issues and answers to find solutions.

  2. Excellent treatment of this often misunderstood topic, Sheila. Unfortunatey it’s one area where First Amendment advocacy and civil rights advocacy (LGBT and otherwise) are in tension….but that is what the concept of “balancing” between more than one “absolute” constitutional rights is all about.

  3. I have to agree with you, Sheila. It should not be against the law to BE BAD…Just DO BAD. With all that is wrong with our criminal justice system, the last thing we need is another emotionally conceived idea of justice layered upon the mess.

  4. Hmm…thought provoking. The way it was described to me is that there must 1) be a crime committed, then 2) you targeted that individual specifically because of bias towards a protected class. So what that says to me is that society (which makes the laws) sees targeting someone for a crime based on bias towards a protected class is, in itself, a crime -but only punishable if accompanied by another crime.

  5. First, isn’t precision in thought and word spellbinding?

    The good professor raises an issue in Constitutional law. What do the bylaws of American government permit or prevent it from doing? Then she ponders a societal issue. Is additional punishment for bias against certain proscribed groups as a motivation for criminal behavior an effective deterrent against future similar criminal behavior?

    It seems to me that the Constitutional law issue is a technical one and I suppose needs to be ultimately resolved by the Supreme Court if and when challenged by the defense of a specific incident. Sheila’s narrative didn’t indicate the status of that process.

    It’s appropriate though for a forum like this to ponder the societal issue. Is bias against certain identified groups of people as a motivation for criminal behavior against a member of such a group an additional crime that merits additional punishment in order to reduce the incidence of such “hate” crimes.

    I’ve never thought much about it but here and now for food for thought I would suggest no it is not. As dysfunctional as an extreme emotional response to large groups of different people is, it seems to me it is a condition that is beyond the law both in terms of mitigation and definition.

    An example: let’s say that you are a young white woman walking at night and coming towards you is a young black man fully outfitted in his best thug costume with a malicious smile on his face. You’d be uncomfortable, right? For sure. Let’s say that discomfort escalates to extreme fear for your life and you happen to have a gun in your purse and your emotions consume your common sense and you shoot him and kill him. The crime of murder for sure for which punishment is proscribed.

    Was legal hate involved and does it merit additional punishment and would that discourage future occurrences? It sounds like a legal mess to me and so technical and hard to comprehend that it would be unlikely to overcome the emotions that motivated the crime.

    The issue needs much more thought than that but from the perspective of a few minutes of thought I see problems in making additional “hate” punishment a matter of law compared to a matter of judicial discretion. (Which BTW has its own set of issues like fairness.)

  6. So… how does this compare against “assault with intent to commit murder?”

    The crime was assault, but they look directly at your *intent* to up the charges.

    The definition of intent is “intention or purpose.”

    Public Law #103-322A, a 1994 federal law, defines a hate crime as:
    “a crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime, *because of* the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person.”

    *because of* = purpose

    In hate crime legislation, doesn’t this go to intent?

    Side note:
    There is a commonality between protected classes; they are attributes that a person does not have the power of choice over. Except one… (no, it isn’t sexual orientation).

  7. I find the term “protected classes” confusing; I thought the law is written, at all levels, to protect all of us. Hate Crimes is a newer specific issue in recent years when targeted individuals or groups became the issue and the “freedom of speech” 1st Amendment began to be used helter-skelter, willy-nilly too often as an excuse – not a reason.

  8. As a prosecutor I observed that all the tough on crime legislators were increasing penalties for the same crimes that we’ve been committing since the start of civilization and or removing the Judges discretion to take the defendants individual circumstances into account.

  9. Victims, I would think, often look at the purpose of law and punishment as retribution. Understandable but shouldn’t the true objective be to reduce future occurrences? A committed crime is all past. It can’t be undone. Retribution may feel good but reduction in future occurrences is real progress.

    Again, the question about hate crimes is about an additional crime and punishment on top of an original crime.

    Does that additional law reduce occurrences of additional incidences?

    Considering what might be assumed as the criminal
    mindset that seems to me to be a level of sophistication quite beyond the emotion of “hate”. Criminals are driven to crime, especially crime against persons, by emotions overcoming reason. Consideration of additional risks imposed by hate crime statutes requires reason. Reason is not in control of the criminal, the emotion of hate is.

  10. Gailgoddard: “…or removing the Judges discretion to take the defendants individual circumstances into account.”

    The “defendant’s individual circumstances” in my case are these, Mark Jones (47) is the blood uncle/live-in-boyfriend/father of Lindsey Jones’ (27) child, this information came from the IMPD officer who is investigator for the Prosecutor’s Office. Both Mark and Lindsey have lengthy drug criminal histories, he has served prison time for same. His defense attorney (public defender) for some unGodly reason is the lead defense attorney for the Richmond Hills case. If you are not in Indianapolis; that case involved 2 murders, numerous injuries, the almost total destruction of an entire affluent neighborhood totally many million of dollars due setting up a gas explosion to claim insurance money. These people were thoughtful enough to board their pussy cat for the weekend while they left town to gamble during the explosion. WHY would she be assigned any other cases almost 2 years after being assigned that case?

    Per the deputy prosecutor; Mark Jones has written letters directly to her asking to be allowed to plead guilty and offering to serve longer prison terms in each letter. His defense attorney is, of course, too busy to be bothered with this mundane case. The deputy prosecutor mailed me a letter – to the wrong address – stated in the letter that the “above address is incorrect” and asked for my correct address. Luckily, my intelligent mail carrier recognized my name and delivered the letter. One court date was set and then continued but she forgot to notify victims or witnesses of this continuance. Don’t know about the other victims but I am not a happy camper. Whether or not selecting elderly women as victims would be classed as a hate crime is irrelevant; this entire situation sucks. Consider this; Mark Jones’ right to a speedy trial is being denied…that is another of this “defendant’s individual circumstances.”

  11. While I agree with the general thrust of your article, the example of the baker and the florist doesn’t make any sense. No one is claiming the free speech clause protects the actions of the baker and the florist. The claim is that their actions are protected is based on the Free Exercise Clause of the United States Constitution, state constitutional religious freedom provisions and by federal and state RFRAs.

  12. Paul; the bakers and florists were not using freedom of speech section in the 1st Amendment; they were using what THEY considered the free exercise of THEIR religion being infringed upon. They are allowed to be of any religion they choose but if they have a business, open to the public, that public will always contain persons they do not like, do not approve of and whose views they do not support. If they are going to pick and choose who they serve or sell to, they need to become a private organization so they can refuse service of goods to any who do not belong to their membership. They can, however, refuse to provide any specialty orders or items not on display for sale or service. Sheila explained this different during Pence’s RFRA and “fix” fiasco.

  13. Paul, I’m sure that you know this but as a reminder from Wikipedia:

    “The Free Exercise Clause is the accompanying clause with the Establishment Clause of the First Amendment to the United States Constitution. The Establishment Clause and the Free Exercise Clause together read:

    “ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof… ”
    In 1878, the Supreme Court was first called to interpret the extent of the Free Exercise Clause in Reynolds v. United States, as related to the prosecution of polygamy under federal law. The Supreme Court upheld Reynolds’ conviction for bigamy, deciding that to do otherwise would provide constitutional protection for a gamut of religious beliefs, including those as extreme as human sacrifice. The Court said (at page 162): “Congress cannot pass a law for the government of the Territory which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation.” Of federal territorial laws, the Court said: “Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices.””

  14. JoAnn Green, gunman A enters a room and randomly shoots five people. Gunman B enters a room, asks which ones believe in God (Allah, Buda, insert deity here) and shoots them. To the individuals shot, all lives should rate the same. However, the majority of society find the “targeting” particular heinous and part of the purpose of laws is to create a “code of conduct.” I too find this hard to wrap my head around. If there is other commonality amongst gunman A’s apparent randomness (they were all wearing glasses) is that not equally heinous?

    Then there is the “vulnerable” bias (already in Indiana law, I believe – ?) that comes down harder on the person who targets and scams the elderly out of their retirement funds vs scams anyone and everybody out of their savings. Same crime, but again, society find it particular heinous and sends that message via legislation.

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