"Hate crime" prosecution for flushing Koran down a toilet

Rosenthal, Lawrence rosentha at chapman.edu
Tue Jul 31 15:02:30 PDT 2007


Motive is important because of what Peter Rubin has called the "impulse to discriminate."  Because of the prevalence of racial etc. animus, bias represents a stronger and harder-to-deter motive than many other types of motives that induce crime.  There is not an epidemic of people destroying their own property in this country; but perhaps people destroying their own property as part of a campaign of racial or religious harassment is a serious problem in some jurisdictions (e.g. cross burning).  Because of the potency of discriminatory animus, persons who have that animus require additional deterrence.  So rather than overdeterring everyone to stop the crimes of a few, hate crime laws use motive as a trigger for identifying those offenders in need of additional deterrence.  Mitchell tells us that such a regime does not violate the First Amendment.  And as I suggested earlier, the need for such deterrence may be present even when the defendant has not harmed the person or property of an identifiable victim -- such as the campaign of harassment that appears to have been carried out by Shmulevich.
 
Larry Rosenthal
Chapman University School of Law

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Tue 7/31/2007 2:47 PM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: "Hate crime" prosecution for flushing Koran down a toilet



        But if we focus on fortuities, what about the fortuity of his
having desecrated a University Koran rather than his own (perhaps one he
got for free)?  If he had gotten his own, he'd have been able to dump it
in the toilet and defecate on it to his heart's content (setting aside
possible charges in case he actually clogged up the toilet), even though
this would generate much the same "social evil" -- offense to Muslims,
and a sense that others hate their religion.

        Ah, one might say, but there's a big difference:  That wouldn't
involve destruction of another's property.  Sure, that's an important
distinction.  But why isn't equally an important distinction whether
someone is destroying property *of a Muslim chosen because he was a
Muslim* (the classic Mitchell hate crime scenario) versus just
destroying property of someone else?  True, the offense to the Muslims
would be the same in these two scenarios, but it would be the same in
the destroying-one's-own-Koran scenario.  But one difference is that in
the Shmulevich case (unlike the classic Mitchell case, but like the
destroying-one's-own-Koran scenario) Muslims have no basis for
perceiving themselves as being the targets not just of insult, but of
discriminatory damage to their property.

        More broadly, Mitchell clearly says, by analogy to Title VII,
that discriminatory selection of a victim may lead to extra punishment.
Very well.  But why does it follow that simply the motive of creating
religiously-based animosity or insult (even when no-one's property or
body is discriminatorily damaged) may lead to extra punishment?

        Eugene

Larry Rosenthal writes:

> These hypotheticals ingeniously (to be expected considering
> the source) demonstrate that the line between Mitchell and
> R.A.V. can be indistinct.  That said, as a legal matter
> (putting policy concerns about the wisdom of enhancements in
> these cases aside), given the way the New York statute has
> been drafted, the statute, at least on its face, appears to
> me to be permissible under Mitchell, because enhancement is
> based on the defendant's motive and not an expressive element
> of the offense.  Still, hypos two and perhaps three involve
> such broad applications of the statute, on facts where there
> is little reason to believe that the offenses create the kind
> of social evils normally thought to justify hate crime laws,
> that a court could properly conclude that the statute was
> invalid as applied, since it has effectively become a pretext
> for viewpoint discrimination, at least in my judgment. 
> Constrast that, however, with what may be the actual facts of
> the Smulevich case, in which the defendant was trying to
> harass identifiable students.  The fortuity that Smulevich
> desecrated a Koran belonging to the University rather than
> one belonging to one of the Islamic students seems to me to
> provide no reason to distinguish Mitchell.
> 
> Larry Rosenthal
> Chapman University School of Law
>
>
> ________________________________
>
> From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
> Sent: Mon 7/30/2007 3:34 PM
> To: CONLAWPROF at lists.ucla.edu
> Subject: RE: "Hate crime" prosecution for flushing Koran down a toilet
>
>
>
>          Well, let me be precise.  Imagine five
> hypotheticals, all of which involve laws much like New
> York's, which mandates an enhancement for "intentionally
> commit[ting] the act or acts constituting the offense in
> whole or in substantial part because of a belief or
> perception regarding the race, color, national origin,
> ancestry, gender, religion, religious practice, age,
> disability or sexual orientation of a person, regardless of
> whether the belief or perception is correct."  (By the way,
> let me correct something I'd said earlier; I thought
> Shmulevich flushed his own copy of the Koran -- a different
> news story I read reports that he stole the Korans from the
> Pace University meditation room.)
>
>         1.  Stanislav Shmulevich steals a Koran from Pace
> University, puts it in the toilet, and covers it with feces.
> He is prosecuted not just for the misdemeanor of damaging a
> book (which he seems to be guilty of), but for a felony hate
> crime, because he is acting "because of a belief ...
> regarding the ... religion ... of a person," there some
> Muslims with whom he had been having an argument -- perhaps
> he thought that the Muslims were bad because of their Islam,
> and he wanted to blaspheme against Islam as a way of getting
> back at them. (Note that he did not choose his victim because
> of the victim's religion; the victim of the property damage
> is Pace University.)
>
>         2.  Shawn Eichman comes to New York to burn another
> flag, which he owns; but he burns it "recklessly" in a way
> that causes over $250 of damage to a bystander's property
> (which is to say with the awareness that his burning poses) a
> substantial and unjustifiable risk to such property). He is
> prosecuted not just for the misdemeanor of recklessly
> damaging property, but for a felony hate crime, because he is
> acting "because of a belief ... regarding the ... race, ...
> national origin, ... or religion ... of a person." Say, for
> instance, he was burning the flag to protest the lack of
> enough blacks or Hispanics in various parts of the
> administration (race), to protest what he sees as various
> Republican leaders' wrongheaded and excessive religiosity
> (religion), or to protest what he sees as the misconduct of
> American troops (assume that New York courts interpret
> "national origin" to include American citizenship or
> participation in American isntitutions).
>
>         3.  An artist creates a display with a cross covered
> in human excrement, to protest what he sees as the historical
> crimes of Christianity (or, if you prefer, the Catholic
> Church's actions with regard to child molestation by
> priests). However, he does this on the premises of a public
> housing project, and refuses to leave when the public housing
> project authorities tell him to do so. Such failure to leave
> is normally a third-degree criminal trespass, which is a
> class B misdemeanor. But the artist is prosecuted for a class
> A misdemeanor because he committed the acts because of a
> belief regarding the religion of various Christians or
> Catholics against whom he is protesting.
>
>         4.  A minister comes to the home of a local
> Episcopalian Church leader to remonstrate against him because
> of the Church's willingness to approve gay bishops. The
> leader at first grudgingly agrees to let the minister enter
> and discuss the matter, but eventually demands that the
> minister leave. The minister refuses to leave, which would
> normally make him guilty of class A misdemeanor second-degree
> criminal trespass -- but because the minister was motivated
> by a belief regarding the sexual orientation of the confirmed
> bishops, the minister is prosecuted for a felony hate crime.
>
>         5.  Assume that New York law is revised to cover not
> just the offenses that are now specified in the hate crime
> statute, but also any other crime, such as blocking traffic
> and the like. This means that anyone who acts illegally in
> the course of a protest motivated by someone's race,
> religion, religious practice, sexual orientation, and the
> like -- for instance, steps out on the street in a way that
> blocks traffic, throws papers on the ground in violation of a
> littering ordinance, and the like -- would be eligible for
> extra punishment because of why he was protesting.
>
>         Constitutionally permissible?
>
>         Eugene
>
> > -----Original Message-----
> > From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
> > Sent: Sunday, July 29, 2007 5:41 PM
> > To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> > Subject: RE: "Hate crime" prosecution for flushing Koran
> down a toilet
> >
> > As I understand the line between Mitchell and R.A.V.,
> enhancement may
> > be based on motive but not on an an expressive component of an
> > offense, then R.A.V. forbids enhancement, but if the
> statutory trigger
> > for enhancement is motive, then enhancement is permitted. 
> Professor
> > Volokh does not tell us what the relevant statutes say in his
> > hypotheticals, but to the extent that he is hypothesizing statutes
> > that use some variant of "giving offense to others"
> > as the trigger for enhancement, then I believe that
> enhancement would
> > be precluded by R.A.V.  If, however, the statutory trigger for
> > enhancement is the defendant's motive, then I take it that
> enhancement
> > is permitted unless the defendant can prove pretext under the
> > principles articulated in Wayte v. US
> >
> > Beyond that, while I am happy to agree that sentencing enhancements
> > should not be used as a vehicle for viewpoint
> discrimination, at least
> > absent pretext (which may well be present in some of the
> > hypotheticals), I see no problem with limiting enhancement to those
> > offenses in which special social harms flow from the
> offense.  I think
> > it anomalous to conclude that the only way that the government can
> > generate adequate deterrence for conduct that poses special social
> > harms and requires special deterrence, such as crime motivated by
> > religious animus, is by increasing penalties on all such crimes. 
> > Shouldn't the legislature be free to act surgically, enhancing
> > punishment only for the subset of offenses that pose
> special dangers,
> > rather than being put to an all-or-nothing choice on
> enhancement?  Do
> > we really need to treat as felons all persons who damage
> books merely
> > because only a few (those who desecrate holy books) threaten to
> > produce broad social strife?
> >
> > Larry Rosenthal
> > Chapman University School of Law
> >
> >
> > ________________________________
> >
> > From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
> > Sent: Sun 7/29/2007 3:00 PM
> > To: CONLAWPROF at lists.ucla.edu
> > Subject: RE: "Hate crime" prosecution for flushing Koran
> down a toilet
> >
> >
> >
> >         Well, it seems to me far from clear that Mitchell supports
> > extra punishment not just for the act of choosing a target based on
> > race, religion, etc., but for the message that the actor is
> trying to
> > communicate, and the offense that he is trying to cause.
> >
> >         But let me ask Larry and others who agree with him
> what they
> > would do with these examples:
> >
> >         (1)  Someone burns a flag.  He is prosecuted for
> violating a
> > law that bars the burning of objects in high fire danger
> zones; assume
> > he is guilty of that.  But instead of this being a petty
> misdemeanor,
> > he gets jail time as a sentence enhancement, because he was
> burning a
> > flag, and because this was seen by the state as creating an extra
> > social harm of offending people, desecrating an important national
> > symbol, etc.
> >
> >         (2)  Someone puts up an art installation with a crucifix in
> > urine or excrement.  He is prosecuted for violating a law that bars
> > the placement of human waste in public places; assume he is
> guilty of
> > that.  But instead of this being a petty misdemeanor, he gets jail
> > time as a sentence enhancement, because he was desecrating a holy
> > object (assume it's one that belonged to him), and because this was
> > seen by the state as creating an extra social harm of offending
> > people, arousing religion-based antagonism, making members
> of certain
> > religious groups feel put upon, and so on.
> >
> >         (3)  Someone posts on a telephone pole Communist propaganda
> > expressing hatred of capitalism and capitalists, and
> praising violent
> > revolution.  He is prosecuted for violating a law banning attaching
> > things to city-owned telephone polls.  But instead of this being a
> > petty misdemeanor, he gets jail time as a sentence enhancement,
> > because he was expressing a hateful view, and one that creates an
> > extra social harm of offending people, creating an
> atmosphere in which
> > people fear violence, and exacerbating social divisions.
> >
> >         (4)  Someone who is engaged in a stridently anti-Chinese
> > "freedom for Tibet" demonstration in front of the Chinese
> consulate,
> > is standing on the street, without a permit to demonstrate in the
> > street.  He is prosecuted for blocking traffic.  But
> instead of this
> > being a petty misdemeanor, he gets jail time as a sentence
> > enhancement, because his speech was seen by the state as
> creating an
> > extra social harm of offending people, potentially causing friction
> > with the Chinese government (cf. the dissent, and Judge
> Bork's lower
> > court opinion, in Boos v. Barry), and making some Chinese feel put
> > upon and unfairly singled out in ways that they feel are ethnically
> > bigoted.
> >
> >         I take it that in all these situations, the view of
> those who
> > support the sentence enhancement for Smulevich would be
> that enhanced
> > penalties are perfectly constitutional, right?
> >
> >         Eugene
> >
> >
> > Larry Rosenthal writes:
> >
> > > We know very little of the facts of the from the brief
> > article, but we
> > > do know that the People believe that they can prove beyond
> > reasonable
> > > doubt that the books were desecrated by Smulevich, and that
> > they can
> > > prove Smulevich's animus beyond reasaonable doubt.  This
> > suggests to
> > > me that Smulevich was not engaged in some sort of private
> > ritual; he
> > > was probably taunting Islamic students.  (I also doubt
> that he was
> > > desecrating his own books, but I doubt that this matters for
> > > constitutional purposes, although a jury might be more
> > sympathetic to
> > > him if that turns out to be true)
> > >
> > > The First Amendment protects "speech," not "motive."  The
> > protection
> > > for speech, at least arguably, supports R.A.V.'s holding
> > that criminal
> > > laws that make a form of expression a basis for enhanced
> punishment
> > > are unconstitutional.  But Wisconsin v. MItchell is clear
> that when
> > > enhancement is based on motive, there is no First Amendment
> > > protection, since the legislature is free to conclude
> that certain
> > > motives warrant an extra measure of punishment or
> > deterrence.  Surely
> > > taunting fellow students based on their religious
> > preference, in our
> > > society, qualifies as a circumstance in which the
> legislature could
> > > think additional punishment or deterrence is warranted. 
> Nothing in
> > > MItchell requires that the motive be directed toward a particular
> > > individual in order to survive constitutional attack --
> although it
> > > may well be the case that a discrete group of Islamic
> students were
> > > the intended targets of Smulevich's acts.
> > >
> > > Larry Rosenthal
> > > Chapman University School of Law
> > >
>
>
>
>
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