Speaking Of Thought Crimes…

Or, in this case, a crime against thought.

A couple of readers alerted me to a rambling, incoherent and profoundly inaccurate “op ed”opposing hate crimes legislation that was sent to a number of smaller Indiana newspapers by four members of the Indiana House of Representatives: Bruce Borders, Matt Hostettler, Christopher Judy and Curt Nisly. I don’t know any of them, but I do know that if students of mine displayed so profound a disconnect from reality, they’d get failing grades.

The letter began by asserting that the proposed hate crimes bill is “an attack on Western Civilization,” and they ramp up the hysteria from there.

They do make one valid point: in our legal system, we punish behavior, not ideas. If the legislation proposed to sanction hate speech, they’d be correct to oppose it. But that isn’t what a hate crimes bill does–and contrary to their assertion that passage would usher in an Orwellian world of thought control (and no, I am not making that up, that’s part of their screed), that thought control has yet to emerge in the 45 states that have had similar laws on their books for a number of years.

Indiana’s version has yet to be finalized, but here’s the general way these measures operate: let’s say person X beats up person Y. Let’s further assume that the crime of battery carries a statutory sentence of 2-4 years. The judge must decide what portion of that time X will serve, and will make that determination after weighing what lawyers call mitigating and aggravating circumstances.

Let’s say X had previously been law-abiding, had too much to drink, and Y insulted his wife. Those are mitigating circumstances, and the Judge is likely to give him the minimum sentence called for by the statute.

But what if X had previous arrests or convictions, showed no remorse, and attacked Y out of the blue? The judge would consider those facts to be “aggravating,” and would undoubtedly hand down a sentence at the high end of the statutory range.

The judicial system recognizes a number of specific elements that are considered mitigating or aggravating, and that Judges should take into account in determining the punishment for a criminal act. Currently, in Indiana, motivation due to bigotry is not one of those standard elements. A hate crimes bill will add it.

Battery is a crime, a criminal act. In my hypothetical, it carries a sentence of 2 to 4 years. (I have no idea what the statutory range really is, this is for illustration.) If Indiana passes a hate crimes act, and X beats the you-know-what out of Y while shouting racist or anti-semitic or homophobic epithets, the Judge will be required to take that evidence into account when determining the length of X’s sentence.

In all probability, some judges would consider the hateful motivation even in the absence of a law, but there is no requirement that they do so. Having such a law on the books is recognition that criminal acts prompted by bigotry are not only unAmerican, but cause fear and anxiety in members of the victim’s targeted group.

Please note, we are talking about criminal acts. If Representatives Borders, Hostettler, Judy and Nisly want to tell the world they hate gay people or Jewish people or black people, they remain free to do so. If they want to “hold beliefs contrary to governing authorities,” this measure will not unleash the “Thought Police,” despite their hysterical assertions to the contrary.

They just can’t communicate those thoughts through anti-semitic graffiti on a synagogue wall–because that would be an act— the crime of vandalism.

I don’t know whether the letter is evidence of a lack of candor or a lack of basic understanding of the legal system, but if its authors are representative of our representatives, it explains a lot about the Indiana General Assembly.


  1. This was hard to read today because I could barely get past the part about Bruce Border asserting that hate crime legislation is an attack on western civilization. This from a hillbilly who dresses up and pretends to be Elvis!!!
    I’m still laughing.

  2. When I was mugged, permanently injured and robbed on my driveway at 11:00 on a Monday morning in 2014; I asked the IMPD Detective assigned to my case if Indiana had a hate crimes law or a “granny bashing law”. He couldn’t answer my question; as an IMPD Detective he certainly should have been aware of what laws he was working to uphold. As for the “granny bashing”; that is not a hate crime but a crime of cowardice on the level of child molest and abuse. The “perps” were caught and arrested the following week but; as I moved further into the “judicial” system here I quickly learned that those arrested for crimes are NOT charged with all crimes committed in any instance. This lack of charges was explained to me by a Deputy Prosecutor “because every charge we file is a charge we must prove”. They refused to file Battery charges against the 47 year old man who attacked me 1 week before my 77th birthday. My hospital record of injuries and the news films of my condition (which continued for 2 weeks) would have provided proof. They also refused to file charges for 8 times the 27 year old female “getaway drive” signed her name to use my two stolen credit cards within 4-5 hours after the attack.

    I say all that to get to this point; if they refuse to charge arrested suspects with blatantly obvious crimes, how can they charge – and prove – anyone committed a crime based on hate which is a thought. Wouldn’t it take a series or history of such crimes; and remember not all criminals are charged with all crimes committed in each instance, how will a record of their hatred be maintained?

    I FULLY SUPPORT all states enact a hate crime bill in their criminal systems but the legal and judicial systems need to change their current process regarding criminal charges. Having worked in the Marion County Municipal Court Probation Department for more than 5 years I saw more plea agreements to drop charges to lower levels (from felony to misdemeanor) to clear caseloads than I saw evidence of justice for victims. What is the thought process within our legal and justice systems which allows this to continue unchallenged; as Sheila stated below, “we are talking about criminal acts”.

    “Please note, we are talking about criminal acts. If Representatives Borders, Hostettler, Judy and Nisly want to tell the world they hate gay people or Jewish people or black people, they remain free to do so. If they want to “hold beliefs contrary to governing authorities,” this measure will not unleash the “Thought Police,” despite their hysterical assertions to the contrary.”

  3. Let’s call in Mike Pence for his take on this…”Hoosiers are good people who respect the bible and values.”

    If that were the case, who could be offended by a hate crime law?

    And, why are bigots always under attack?

    And, how did these people escape high school without getting their asses kicked?

    Oh, yea, we still allow segregation in this state so they are above the law…or are privileged in their thoughts, so any attempts to point out the wrongness of those thoughts are forms of thought control.

    But, God forbid if a person of color who happens to also be non-Christian attacks a white Christian person…oh, the hate!!!

    You know it’s a great country when one brand of hate has more rights and acceptable than others…that kind of country would also do their damnedest to keep out people of color.

  4. So, I used to feel that punishing people for the motivation for their crime was an issue. A fellow student gave me this, which I think is he key: Hate crimes are not more problematic just because of bigotry. They are more problematic because they speak to a community in a hateful way, intended to cause fear. Hate crimes are terrorism upon a group with specific traits. We have no problem prosecuting terrorism above and beyond the crimes that the terror acts would indicate. We have no problem prosecuting extortion or coercion. We should have no problem prosecuting hate crimes.

  5. This is another opportunity for our state legislature to look the other way on an issue that is important to citizens of the state and will send a message to outsiders about what we’re really like in Alabama. Sorry, Indiana.

  6. At sentencing, under Indiana Code 35-38-1-1.7, a judge in Indiana begins with the statutory advisory sentence – what used to be called the “presumptive” sentence (until a pair of SCOTUS decisions around 2001 and 2002). She or he then considers aggravating factors and mitigating factors to determine whether to increase the sentence over the advisory or decrease the sentence. Executed time cannot be suspended for some categories of offenses. Some aggravators are listed in I.C. 35-38-1-7.1. That list is not exclusive and a judge can state other aggravators. Acting out of prejudice or in a hateful way toward someone because of that person’s race, age, gender, or any other similar factor can be used, under statutes as they exist, to aggravate a sentence. If that becomes an element of the offense, that is one more element the State must prove beyond a reasonable doubt. The same problem does not exist at sentencing. If someone beats someone else nearly to death, the motivation of the attacker should be a factor in sentence. I think the General Assembly should address this as a statutory aggravator. That is a policy statement by Indiana to protect people.

  7. In a world where corporations are people and money is speech, perhaps Representatives Borders, Hostettler, Judy and Nisly believe that battery is also speech. I certainly wouldn’t want to test it before the current Court.

  8. Hate crime legislation began in the United States fifty years ago, in 1968. Since Indiana is generally fifty years behind the times this should be the year we catch up with the rest of the country as it was fifty years ago.
    I’m breathless with the pace of things here.

  9. “…considers aggravating factors and mitigating factors to determine whether to increase the sentence over the advisory or decrease the sentence.”

    mark small; I copied and pasted the portion of your comments because I question the sentence (the actual results of the sentence) of my attacker. After 2 years in jail, the case finally went to court in 2016 and the Judge sentenced him to 46 years for 4 counts of Robbery and 1 count of Fraud against 4 senior women due to his lengthy criminal history and past prison sentences. Approximately half of his life. He was to serve 25 of the 46 years in prison, 12 of the suspended years to be on probation. The letters from Indiana Department of Correction arrive regularly informing me he is scheduled to be released in 2026; according to my math figures that is only 10 years, if you add his 2 years sitting in jail, that is still only 12 years served. He spent the last year in jail writing to the Deputy Prosecutor offering to plead guilty, offering to server longer terms with each letter but he was ignored. His rights were ignored as well as his victims. I made that part of my Victim Impact Statement when we finally got to court 2 years and 1 month after the crimes. What good are sentencing guidelines and actual sentences if they are ignored? And who makes these decisions?

  10. Prof K says
    ” If Representatives Borders, Hostettler, Judy and Nisly want to tell the world they hate gay people or Jewish people or black people, they remain free to do so.”

    I think they just did

  11. The new Indiana Senate Pro Tem has stated that he will take over any Hate Crimes legislation to be on committees he controls. He is doing this to attempt it to move forward, even though the majority of citizens and businesses in Indiana are in favor of hate crimes legislation.

    Let’s not serve our citizens……let’s serve our major donors who are used to getting what they want.

    The legislators who wrote this crazy op ed are religious conservatives who want to be able to continue bashing those with whom they disagree, without any chance of being questioned or threatened for their own hate speech.

    Nisly is an extremist who has attempted to pass legislation against all abortions and Judy is also among the conservative religious right who believe they should have more rights for their own beliefs than other citizens deserve for their beliefs. Judy is very good friends with Rep Banks who is owned by the Koch brothers and I think Banks helped get Judy elected. I imagine all four of these creeps are owned by the Kochs to some extent.

  12. This sentence in my first post was typed incorrectly “He is doing this to attempt it to move forward”

    I meant to state he is attempting to keep it from moving forward.

  13. Let’s talk judges. I have talked with many judges while both a deputy prosecutor and as defense counsel in Indiana many years ago, and I have not heard one of them who didn’t complain about his (there were no hers) crowded docket. All seemed to go to most any extreme to reduce his caseload. I have been in conferences where the judge told both the prosecution and defense counsel to “settle this case” (felony to misdemeanor, for instance) or he would find this way or that. I thought that dictatorial and still do since the judge had heard no testimony or other evidence but seemed willing to make a premature finding on the merits in order to reduce “his” caseload.

    While a police court deputy before moving up to the Criminal Court with felony jurisdiction, I was accosted one morning before court started by a policeman who offered me a bribe of $115 (a goodly sum then) for each defendant he had arrested for DUI if I failed to ask the venue question (a then necessary element of proof without which the court would dismiss the case). I told him where to go and immediately walked back into the judge’s chambers and told him that I had just been offered a bribe by a police officer, naming him. To my shock, the judge said “Oh, Jerry, don’t worry about it. We know who those people are.” To this day I still wonder if the judge wasn’t “one of those people,” especially when he called me into chambers one day after court and told me that he had looked over my record and that I had a 92% record of DUI convictions, and I said so? He said “That’s too high. It should be sixty six and two thirds,” and I said that it could be 0 or 100 percent or anywhere in between, depending upon the case by case evidence. He apparently disagreed, because I started losing cases I had previously won based on identical evidence.

    I know that what I have just written is off-topic to Sheila’s topic of evidence a court may consider and its effects on sentencing guidelines under a rather subjective measure of how to treat bigotry in connection with a crime. The legislators proposing it should go back to the cave.

  14. A Hoosier free human like me might conclude that there are Hoosiers who don’t see any specific evil in terrorism. It seems that if I was in the business of terrorism I would take that into account in planning my next intimidation effort.

    Or if I was a hateful Hoosier I’d feel empowered that my state sees my hatred as an insignificant ingredient in any crimes I might commit against those who I hate.

    I guess hate as a criminal motivation is considered a form of free speech there.

  15. These 4 representatives are not living in the 21st century. It sounds to me like they would not object to lynching by the KKK, killing LGBTQ people, Jews, Muslims Hindus, atheists. I suspect the only people they believe are children of God are male heterosexual White Anglo-Saxon Protestants. To me bigotry is an assault on the democratic ideals in this country. Obviously they are extremely threatened by the increasing diversity of the citizens of America and Indiana.

    Of course they have a legal right to their opinion and they have free speech. It just makes me wonder about the people who voted for them. I will bet they also voted for Trump.

    The sad truth is that there is no vaccination for bigotry, and it will always be a part of the cultural landscape of our country. The question is how do we immunize our children from such attitudes? Where is the plague of bigotry in Indiana the most prevalent? How do we change attitudes in those communities? How do we change the bigoted attitudes of these 4 representatives since they sound like the kind of people who would abuse any of their children who were LGBT or who converted to another faith? They would probably kick a gay child out of their home.

    I support a hate crimes bill but I don’t think we will legislate our way out of bigotry.

    My father was very bigoted. My mother worked hard not to be bigoted. I decided to follow in my mother’s footsteps in my adolescence thanks to her and our minister who had been part of the civil rights movement in Mississippi.

  16. I am a little confused ny Mark Small’s comment, unless I am misunderstanding it. I took it from Sheila’s post that the contemplated legislation was in the nature of a sentencing enhancement for existing criminal offenses, as opposed to creating a new, separate criminal “hate” offense (with a “mens rea” element that focuses on motivation). But Mark’s post seems to imply that is not the case (in that he urges the legislature to take the sentencing enhancement approach). Is there a proposed bill out there somewhere to look at?

  17. WOW! Indiana Republicans are almost as backward, hateful and prejudicial as Texas Republicans. Almost. It must be that song of “Father knows best, and he goes to church to learn more about how to keep being white, straight and honorable”. Republicanism is wrong everywhere.

  18. Jo Ann @8:19AM
    I’m not sure I have sufficient facts to correctly or definitively answer your questions about your attacker’s release date. I will say this — it’s been a few years since I worked in Indiana — but it was my experience that the folks who figure the length of sentences and release dates at the Indiana Dept. of Corrections almost always had them figured correctly.

    First. Yes. If your attacker spent 2 years in jail before he was found guilty (or pled guilty) and was sentenced, he gets “jail time credit” toward his aggregate sentence for that 2 years spent in jail (and as further explained below, they can also earn “good time credit” toward their aggregate sentence based on the amount of “jail time credit).

    What I suspect is going on and that accounts for the difference you note is likely “good time credit” and/or possibly “educational credit time.” Under Indiana Code 35-50-6, “offenders,” as the DOC refers to them, can earn good time credit by behaving themselves while in prison and not getting any disciplinary actions against them. The Legislature also enacted “educational credit” laws that allow offenders to earn additional credit towards their sentence(s) by pursuing and obtaining GED’s or certain types of college credits or degrees.

    Lots of people object to good time credit laws on the basis that criminals in prison shouldn’t be rewarded simply because they did what they are supposed to do; not get in trouble or get disciplinary actions. Actually the biggest advocates for “good time credit” laws are the DOC and prison guards. It provides a form of leverage over the offenders. Not only do they get some reward — hence motivation — for behaving, but if they do get a disciplinary action, they can lose some or all of the “good time credit” they had previously earned. Believe me, virtually every offender can tell you their exact release date based on how much credit time they think they will earn, and it is very important to them not to lose their credit time.

    The theory behind “educational credit” is that since the vast majority of “offenders” will someday be released from correctional institutions back into society, “offenders'” chances of being reformed/rehabilitated and their likelihood of not re-offending is increased, if they have obtained GED’s or college degrees.

    How much “good time credit” your attacker may have legitimately earned is beyond my ability to figure. For one thing, the Legislature has tinkered with and changed the amounts of good time credit that can be earned and which class of offenders can earn how much in recent years. But as I said at the start, my experience was that the DOC was rarely, if ever, wrong in calculating the proper release dates.

  19. Nancy @ 9:16, thank you for the link. This convoluted letter is weaved with false hoods. It reminds me of some of the comments I read on Face Book, where the Reactionary Right will simply “share” out right lies and deceptions.

    The predominant theme in this op ed is that mere “thought” is enough to constitute a crime. As is noted by fellow bloggers here “thought” – intent- must be coupled with an action and a crime. I would hazard a guess that the average Reactionary Right Wing Republican has never read the book 1984. It is another way for the Neo-Confederates to muddy the water, by confusing beliefs no matter how reprehensible with a “thought crime”, you could be arrested for.

  20. David F. 10:56 am; I do understand “good time credit” but I began receiving these letters approximately 2 month after he was sent from court to prison. How could they figure this almost as soon as he walked through the prison gates? Especially for a “career criminal” who had already spent half of his life in jail and prison and his latest crime was mugging and robbing old ladies, 77, 84, 85 and 90 years old, for drug money. Of course; there would be no old ladies in prison to attack which could be taken into account.

    Gerald; maybe both of us were a bit “off topic” today but IF, and that is a huge IF, Indiana passes a hate crime law, we have brought out problems within the judicial system which would be faced with a new element to be considered from prosecution, defense and the bench. DUIs were, and probably are, still considered misdemeanor rather than felony cases because drinking is legal. An Indianapolis police officer was using lights, siren and driving 70 miles an hour to drive about 2 miles to OFFER unasked for assistance to a fellow officer serving a warrant. The speeding office was drunk; sped through a highly congested signal light intersection to hit three people on motorcycles stopped for a red light. He killed one man outright and permanently disabled a second man and a woman, totaled all motorcycles and the police car. He was allowed initially to aid investigating the accident; when told to stop, he was allowed to clear all personal belongings out of the police vehicle, the officer who was driving him to have a BAC done stopped at a fast food place on the way. Took him to a facility not authorized to take the BAC test long after the accident. It took 3 years and a 2nd drunk driving accident hitting a bridge, his was the only vehicle involved, in another county before he was taken off the streets. The judge in that county didn’t play; put his butt in jail with high bail due to his pending charges systematically being ignored in Marion County. As an attorney, how many times did you hear the plea of being under the influence used as an excuse for a crime?

    We may be off topic but Sheila hit a nerve with this blog; a touchy nerve involving much in our legal and judicial systems. A hate crime law will spawn many new defense excuses to cover up hate crimes.

  21. JoAnn@12:20 pm.
    Sorry to bog down the discussion with something off topic.

    I can’t answer your question, but someone at DOC should be able to.

    If I had to guess, I would guess that at the time of an offender’s commitment to the DOC, the DOC initially calculates each offender’s earliest possible release date based on how many days of good time credit the offender should earn. Offenders are statutorily entitled to earn that good time per the statute, unless some or all of it is subsequently administratively taken away, after a due process hearing, as result of disciplinary infractions inside the correctional system.

  22. David F; we do appear to be off target but at the same time, we do need to have some understanding of what was going on in the minds of those who commit crimes. We must also have some idea what is or was going on in the minds of the legal and judicial systems when their decisions were made. Sorting hate from circumstances isn’t being the “thought police”; it is seeking answers to provide justice for victims and a just sentence for those convicted and knowing what is in the minds of the legal and judicial system is also at issue; they too are humans, sometimes with their own human failings.

    This is a tough old world; and it’s getting tougher.

  23. Are there any ways Hoosierdom does not represent worthiness of being called”Mississippi” of the north?

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