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

Thu Mar 9 12:44:18 PST 2000

        Dan is quite right as to the Wisconsin law, and I appreciate the
correction.  Some states, though, do include sex in the list, e.g., Illinois
Stat sec. 5/12-7.1; Iowa Code Ann sec. 729A.2.

> -----Original Message-----
> From: Conkle, Daniel O. [SMTP:conkle at INDIANA.EDU]
> Sent: Thursday, March 09, 2000 10:02 AM
> Subject:      Re: Crimes where victims are intentionally selected because
> of th eir race, sex, ethnicity, etc.
> Small point of clarification:  I think the law in Wisc. v. Mitchell did
> not include sex-based selection as a criterion for enhanced punishment.
> Dan Conkle
> -----Original Message-----
> From: Volokh, Eugene [mailto:VOLOKH at MAIL.LAW.UCLA.EDU]
> Sent: Thursday, March 09, 2000 12:35 PM
> 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.).
>       -----Original Message-----
> From:   Leslie Goldstein [SMTP:lesl at UDEL.EDU]
> Sent:   Thursday, March 09, 2000 4:30 AM
> To:     CONLAWPROF at
>       Replying to Jim Maule's latest post:
> Do you really not see the significance between a group-based motive for a
> crime, which I would suggest is pretty darn rare , and individual
> antagonism or individual circumstances as the motive?  (or are you just
> being argumentative?) Robbing rich people is not robbing them becasue they
> are rich but because they happen to be carrying money--a non-rich person
> who just left an ATM machine is a better target than a rich guy carrying
> just credit cards.  Not only do hate crimes present the potential to
> intimidate (and thereby cut down on the liberty of) a sizable number of
> group members, but also, especially in an ethnic and racial context, they
> present the additional disruptive potential of gang war, group based
> retaliation, etc.  This is much less likely when crimes are matters of
> individual antagonism or particular circumstances opportunism.
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