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.

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Are You SURE You Want Those Emails?

When I read about this the first time, I was sure it was a story from the Onion.

It wasn’t.

As everyone not living on Mars is aware, the Republicans’ six hundredth Benghazi Investigative Committee (okay, so maybe I exaggerate a bit) forced disclosure of emails from Hillary Clinton’s private server. It turned out that some of those emails were from the prior administration, and one of them– from then Secretary of State Colin Powell to President George Bush–confirmed Tony Blair’s promise to sign on to the Iraq conflict a year before the invasion began… a time when Blair and Bush were assuring their respective countrymen that they were taking great care to confirm the presence of weapons of mass destruction and that no definitive decision to invade had been made.

The British press has made much more of this revelation than the American media, but even here, it has been fairly widely reported. If the members of the Benghazi Inquisition were capable of embarrassment, you’d think they’d rethink their approach. But of course, they aren’t.

Then, this week, we had Clinton’s much-anticipated 11 hour testimony, and a whole series of further embarrassments centered on the committee’s obsession with her emails. (For a detailed “take down” of the day’s effort by a Clinton partisan, you can read this diatribe from Kurt Eichenwald, who noted–among many, many other things–the absence of similar expressions of concern over the twenty-two million Bush Administration emails that mysteriously disappeared.)

The continuing revelations about his brother should keep Jeb! quiet, but he weighed in with a tweet to the effect that the security failures at Benghazi were evidence of Clinton’s “incompetent” foreign policy; that prompted a post at Daily Kos “reminding” Jeb! that his brother’s administration had overseen not just 9/11, but deadly attacks on at least thirteen overseas American embassies and consulates as well as numerous other successful attacks against American diplomatic personnel and their staff.

It’s fair to assume that this week’s hearings did little to sway partisans on either side. But I was struck by a Facebook post by a friend who is a well-respected foreign policy expert at another university–someone I know to be a Republican, someone who has previously shared lukewarm-at-best feelings about Clinton, and who reported watching the whole thing.

If there is one truth that has come out of this ridiculous committee hearing for me, it’s that the search for wrongdoing in Benghazi is a tempest in a tea pot. The death of four Americans in a terrorist attack is a tragedy. But I wish the Republicans controlling Congress would have spent 1/10 of the time and energy (and the $4.7 million) investigating the decision to go to war in Iraq and all the decisions made after that that destroyed Iraq, killed over 4,000 American servicemen and over 100,000 Iraqi civilians. Why isn’t that worthy of at least one investigation (let alone eight)?

I think Kevin McCarthy accidentally answered that question.

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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?

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Ben Carson, Joan Gubbins and Identity Politics

People usually use the term “identity politics” to mean blocs of voters who cast their ballots for people with whom they share an identity.

For example, during the last two Presidential elections, opponents of President Obama often attributed his huge advantage among black voters to his skin color. Of course, “they” would vote for one of “their own.”

If that were true, of course, African-Americans would be lining up to support Ben Carson. They clearly aren’t, and a lot of Republicans don’t understand why. The confusion lies in a profound misunderstanding of what we should probably call “communities of interest” rather than “identity politics.”

Most readers of this blog, even those who lived in Indiana at the time, will not remember Joan Gubbins, a particularly unpleasant woman who served in the State Senate in the 1970s. Gubbins was a forerunner of today’s social conservatives–among other things, she opposed the Equal Rights Amendment and memorably campaigned against her opponent in one primary by going door-to-door and explaining that the voter’s choice was between “a good conservative Christian and a damn liberal Jew.”

The Women’s Political Caucus (of which I was a member) endorsed her male opponent, who supported a number of women’s rights measures.

Women’s organizations like the (now defunct) Political Caucus and Emily’s List usually support women candidates–but not those with positions inimical to women’s rights. In the 2008 Presidential race, no self-respecting advocate for women’s equality was persuaded to vote Republican because Sarah Palin was on the ticket.

Latinos support candidates with reasonable positions on immigration and other policies relevant to that community. Whatever Ted Cruz’ ethnicity, he’s not going to get the Latino vote.

Women don’t disproportionately support Hillary Clinton because she’s female; they do so because she has championed women’s issues. (Sorry, Carly. As Sara Palin’s candidacy should have demonstrated, female plumbing isn’t enough.)

In 2016, African-Americans aren’t going to vote for a monumentally unqualified Ben Carson, whose positions suggest that he suffers from something akin to Stockholm Syndrome.

Anyone who thinks that “identity politics” means voting for someone who “looks like me” just doesn’t get it.

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What’s It All About?

Forgive the personal nature of this post. I’m not in a very “political” or “policy” mood right now.

A couple of days ago, a close friend died unexpectedly.

A couple of months before that, my best friend in the world–someone I talked to almost every day for fifty years, someone who shared my life so thoroughly that it’s hard to know who I would be if she hadn’t been part of it–died after a brief battle with cancer.

Even with months to prepare for the inevitable, I couldn’t write about that first death until now, couldn’t talk about it much, couldn’t come to terms with it. (I still haven’t.) The second one was a shock–a single male friend who we had semi-“adopted” into our family, who shared Thanksgivings and birthdays and weddings with our “clan,” and was only 62.

It’s times like these when you confront your own mortality, and wonder once again what it all means. Are there lessons in life’s fragility, and if so, what are they?

Like my best friend, who was a student of philosophy–and like my mother, who wasn’t–I don’t believe in an afterlife. We’re here, and then we’re gone, and to the extent our lives have meaning, it’s meaning we create. So we are responsible for thinking carefully about what it means to be a human being with free will (or something that feels like free will), and about the nature of morality, of good and evil, and our responsibilities to our fellow humans and the planet we share with them.

My friends each left a legacy of kindness. Neither was petty or self-aggrandizing. They both had a passion for justice, and an aversion to the sort of self-righteous judgmentalism that is all too common among less thoughtful and/or reflective people. They both lived full and authentic lives, and they both left their corners of the world better than they found it.

At the end of the day, I suppose that’s really all that anyone can hope for or aspire to.

The size of the holes left in our lives when wonderful, loyal people die is a testament to the value they added to ours. But those holes are really, really painful. We can walk around them, but they can’t be filled.

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