Crimes where victims are intentionally selected because of their race, sex, ethnicity, etc.

[Lederman, Marty]

Eugene writes:  "My guess is that if prosecutors were really looking for "hate crimes"
enhancements in all cases where the formal criteria are satisfied, a huge
range of crimes would qualify.  This in turn raises the question of exactly
how prosecutors are selecting which cases to bring as hate cases, which may
(or may not) pose a First Amendment problem."

I suspect that prosecutors select cases to prosecute as hate crimes based on the strength and clarity of the evidence of the impermissible motive.  Of course, as Tom Grey suggests, clear and unambiguous evidence of improper motive usually comes in the form of speech.  But why would that pose a First Amendment problem, in light of the fact that, in criminal and civil trials all over this country, every day, speech is used as a principal indicia of motive?  (Note that Wisconsin v. Mitchell was a unanimous opinion.)  On this question, I commend to interested readers Carol Steiker's book review of Jacobs's and Potter's Hate Crimes, 97 Mich. L. Rev. 1857 (1999).  Steiker shows that numerous criminal law doctrines treat a defendant's reasons for acting as partially or wholly exculpatory, or as grounds for enhanced culpability; and that speech is, more often than not, the best evidence of such motives.  Why, then, do folks worry about First Amendment questions only when the motives are race- or sex-related?  Steiker:  "[N]ormative evaluation of reasons for action--of belief and attitude--are hardly foreign to the criminal law as it now exists and as it has long existed.  Thus, to bar the door at hate crime laws is a bit like barricading a house against an intruder who is already in the living room with his feet up: the controversy over 'content neutrality' should not start with hate crime laws, but with the law of homicide through and through." . . . .   No one, and certainly not Jacobs or Potter, argues that racial hatred (or other group-based animosity) is a social good.  So why should the negative valuation of such motivations in the criminal law be so controversial?"

Marty Lederman

-----Original Message-----
From: Volokh, Eugene
Sent: Thursday, March 09, 2000 12:37 PM
To: CONLAWPROF at listserv.ucla.edu@inetgw2
Subject: Crimes where victims are intentionally selected because of
their race, sex, ethnicity, etc.


        I think Wisconsin v. Mitchell got the matter right as a question of
constitutional law; but it seems to me that group-based motives for crime
are not particularly rare.

        Recall that the law at issue in Mitchell provided for a penalty
whenever the defendant "[i]ntentionally selects the person against who the
crime . . . is committed . . . because of the race, religion, color,
disability, sexual orientation, national origin or ancestry of that person."
This of course covers rare cases such as the one in Mitchell, where a group
of young black men and boys who had just been discussing "Mississippi
Burning" intentionally beat up a white boy (Mitchell asked the group "Do you
all feel hyped up to move on some white people?" and told them "There goes a
white boy; go get him").  But it also covers

        *  pretty much all sex crimes (except the rare one where the
criminal is genuinely indifferent as to whether he will rape or molest a man
or a woman);

        *  crimes where someone picks on a disabled person because he's an
easier target (for instance, because the criminal thinks it's easier and
safer to steal from a blind person than from someone else);

        *  crimes where a member of one ethnic gang attacks a member of
another gang, and part of the reason for the attack is the ethnicity of the
gang;

        *  crimes where someone robs a white or Asian passerby on the theory
that they are likely to have more money, or that they're less likely to be a
local resident and thus less likely to identify the criminal;

        *  and many others.

My guess is that if prosecutors were really looking for "hate crimes"
enhancements in all cases where the formal criteria are satisfied, a huge
range of crimes would qualify.  This in turn raises the question of exactly
how prosecutors are selecting which cases to bring as hate cases, which may
(or may not) pose a First Amendment problem.

        True, in each of these cases the victim's race, sex, etc. is only
part of the reason for the attack, but surely that's enough to qualify under
the law -- otherwise, there'd never be hate crime prosecutions, since there
are always other reasons (e.g., the victim is in the wrong place in the
wrong time, the victim seems vulnerable [as in Mitchell], the victim isn't
wearing a police officer's uniform, the victim said or did something that
somehow provoked the offender, etc.).