Punishing crimes because of the beliefs that led the criminal to commit them

[Volokh, Eugene]

        Wisconsin v. Mitchell, I think, is right in holding that the 1st Am
doesn't bar extra punishment based on *discriminatory victim selection*.
Likewise, I agree that the 1st Am also doesn't bar extra punishment based on
what one was trying to accomplish through the crime -- the law may indeed
increase punishment for those who kill in order to inherit money, or who
beat someone in order to deter that person from exercising his right to vote
or to use integrated public facilities.

        It is clear, though, that it's constitutional to bar extra
punishment based on the beliefs that lead one to commit a crime?  Let's say
that in the midst of an upcoming South China Sea War, Congress enacts a law
saying:  "Persons who vandalize property because they believe that the War
is wrong shall be punished by five extra years in prison."  Is that
constitutional?  What about a 1950s law saying "Persons who vandalize
property because they believe that 'all property is theft' shall be punished
by five extra years in prison"?

        If not, then how would a law saying "Persons who attack victims
because they believe in a racist ideology -- or because they believe that
the victim deserves hatred because of his race -- shall be punished by extra
time in prison" be different?  (Again, note that Wisconsin v. Mitchell did
*not* confront such a law.)

        Incidentally, I'm not sure that the "because they believe that the
War is wrong" law is unconstitutional; maybe it is, and if it is then so are
the "because they believe in a racist ideology" laws.  But it seems at least
a tough question, one much tougher than the one posed by the discriminatory
victim selection law or the "because they're trying to accomplish a
particular goal" law.



> -----Original Message-----
> From: Lederman, Marty [SMTP:Marty.Lederman at USDOJ.GOV]
> Sent: Thursday, March 09, 2000 11:59 AM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Crimes where victims are intentionally selected because
> of their race, sex, ethnicity, etc.
> Sensitivity:  Personal
>
> 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 a!
> re 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.).
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