State Assemblyman Raul Bocanegra, D-San Fernando, recently introduced legislation that would “establish the California Hate Crimes Registry,” as his office put it. The registry his Assembly Bill 39 envisions would aim to provide a public database of individuals convicted of hate crimes in California.
Bocanegra claims, “The Hate Crime Registry will be an important public safety tool to better protect individuals and communities from hate crimes, help reverse this deeply troubling trend, and significantly reduce hate crimes in California.”
He cites statistics from a California Department of Justice report, which finds the number of reported “hate crime” incidents increased a little over 10 percent from 2014 to 2015, from 758 in 2014 to 837 in 2015. However, Bocanegra fails to note that actual convictions for hate crime offenses in California are very low. Indeed, the same DOJ report shows there were only 59 hate crime convictions in California in 2015.
With such a large discrepancy between the number of reported hate crimes and convictions for hate crimes, one should be cautious forming policy. And there are a couple of additional issues that make this bill fundamentally flawed. First, there are basic problems with hate crime laws, and second, registries are ineffective and unfair.
Hate crime laws jumble the distinction between bad actions and bad thoughts. Criminal enhancements, like longer prison sentences, for perceived thoughts, motivations or feelings are hard to disprove from a criminal defendant’s standpoint. How can one argue against the state that “hate” didn’t motivate a certain action? And how do we define “hate”? ..Continue.. by Lauren Krisai
Neb. Rev. Stat. Ann. § 28-110 (2010)
—A person in the State of Nebraska has the right to live free from violence, or intimidation by threat of violence, committed against his or her person or the destruction or vandalism of, or intimidation by threat of destruction or vandalism of, his or her property regardless of his or her race, color, religion, ancestry, national origin, gender, sexual orientation, age, or disability.
Neb. Rev. Stat. Ann. § 28-111(2010)
—Imposes additional penalties on any person who commits one or more of the following criminal offenses against a person or a person's property because of the person's race, color, religion, ancestry, national origin, gender, sexual orientation, age, or disability or because of the person's association with a person of a certain race, color, religion, ancestry, national origin, gender, sexual orientation, age, or disability, unless such criminal offense is already punishable as a Class IB felony or higher classification.
9-6-16 Nebraska:
A 30-year-old Lincoln man pleaded not guilty to breaking into a woman's home and sexually assaulting her.
Chad E. Drewes faces 10 felony charges, one of them filed as a hate crime, in connection with a home-invasion robbery June 24 at the woman's rural Seward County home, according to the criminal complaint.
Seward County District Judge James Stecker set his trial in January.
A 77-year-old Seward woman told deputies a shirtless man kicked in a side door to her garage and began strangling her, then bound her feet and hands and dragged her into a bedroom and raped her.
Afterward, she said, he untied her and told her to stay in the bathroom, as he ransacked her house.
Scared, the woman stayed in the bathroom for another hour after he left, then rested out of exhaustion before walking to a neighbor's house to report the attack around 6:30 a.m.
Sheriff's deputies working with police found Drewes near the woman's stolen SUV at Ninth and Court streets in Lincoln and arrested him on suspicion of the crime.
Prosecutors charged him with first-degree sexual assault, enhanced as a hate crime because of the victim's age, first-degree assault, robbery, theft by unlawful taking over $5,000, burglary, first-degree false imprisonment and several other felonies. ..Source.. by Lincoln Journal Star
On a Federal Level "Hate Crimes" are determined by the motivation for the crime: The actual or perceived race, color, religion, national origin, ethnicity, or gender of any person. And in 2009 the Matthew Shepard Act added crimes motivated by a victim's actual or perceived gender, sexual orientation, gender identity, or disability, and dropped the prerequisite that the victim be engaging in a federally protected activity. However, many individual states go further than that, so it is up to the Washington Legislature to decide this one.
3-8-2011 Washington:
SEATTLE - Right now, people can't be denied jobs or housing because of race, sex or disability. Should those with a record be a part of that class?
"We're people we're not monsters. We've just made a different type of mistake than someone else," said 34-year-old John Collins, who served 4 years in prison for drugging and raping his estranged wife.
Collins is currently living in a house with five other men, all of them convicted felons. His landlord, Jim Tharp, was the only one who would rent to him. Collins says he actually understands why other landlords would turn him away.
"You group people into classes, even criminals. It's not the class you have to look at, it's the individual and how are you going to look at the individual?" he said.
Julie Nelson with the Seattle Office for Civil Rights thinks landlords should take that time to look at the individual and not just the checked box on the application.
"Once people have done their time we want them to be successful and people cannot be successful if they cannot find housing or employment," she said.
Nelson believes landlords should take the discussion further with the potential tenant.
Landlord Jim Tharp says it's not that simple.
"I don't think it's fair to the landlord or to the most recently released person," he said.
The men who live in Tharp's house are all in therapy, with strict rules. They're learning how to re-enter society. Tharp thinks more programs like this are what ex-convicts really need.
"I don't want to see the city asking landlords to take on something they have no ability to deal with," he said.
Under the provision, Nelson says those who have an arrest record for minor crimes would also be protected. The city is looking for public input, a meeting will be held Wednesday, March 16, from 6-8 p.m. at Seattle City Hall. ..Source.. by TONYA MOSLEY / KING 5 News
Today, President Obama is scheduled to sign the Matthew Shepard Hate Crimes bill, which will expand the scope of the federal hate crime law to include that committed on the basis of gender, sexual orientation, gender identity, or disability.
Some Republican critics have argued that the hate crime law singles out evil "thoughts" for special punishment and therefore targets "thought crimes," the sort of offense that would be anathema to a people that values the freedoms of speech and thought.
In this column, I examine the argument that hate crime laws punish thought crimes, and situate the contention in the context of criminal law and anti-discrimination law more generally. Ultimately, I conclude that the argument is flawed and that upon close examination, a prohibition on hate crimes does not amount to a thought crime statute.
What is a Hate Crime Law?
Though the phrase is somewhat vague, references to "hate crime" laws generally encompass criminal statutes that identify what would already be criminal conduct and treat that conduct as worse (by federalizing the offense, for example, or by enhancing its penalty) because of its connection to invidious discrimination on the basis of such qualities as race, sex, national origin, or religion.
To give a simple example, a hate crime law might take a garden-variety assault and battery prosecution and allow for harsher penalties if the perpetrators chose to attack the victim because of his race.
The Supreme Court Strikes Down One Type of Hate Crime Law
In 1992, in R.A.V. v. City of St. Paul, the Supreme Court invalidated a bias-motivated crime ordinance on First Amendment grounds. The act alleged in the particular case was the burning of a cross on a black family's lawn. The law in question had prohibited "the display of a symbol which one knows or has reason to know ‘arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.'" The state court interpreted the ordinance to reach only "fighting words," a category of speech that the U.S. Supreme Court had previously held was unprotected by the First Amendment. (The Court had defined fighting words as "those that by their very utterance inflict injury or tend to incite an immediate breach of the peace.")
Importantly, in striking down the law, the Supreme Court did not hold that cross-burning is protected speech under the First Amendment. What it held, instead, was that the ordinance under which R.A.V. was charged impermissibly singled out those "fighting words" that expressed discriminatory messages about forbidden topics, a form of content and viewpoint discrimination that the Court concluded violated the First Amendment.
Even though fighting words (and, of course, acts of burning things on other people's property) are not protected speech, the Court said, it is nonetheless unlawful for the government to draw distinctions between different kinds of fighting words on the basis of their content or viewpoint. To do so constitutes illegal censorship, because the law focuses on the communicative element of the conduct.
The Court Provides More Guidance on Hate Crime Laws, After R.A.V.
After R.A.V., then, one could not prohibit some fighting words but not other fighting words, if the basis for the distinction was the disapproved content or viewpoint expressed by those words.
R.A.V. left lawyers and scholars unsure about the scope of the Court's ruling – would all hate-crime legislation now fail First Amendment challenges, because it singled out crime on the basis of expression?
Then, one year later, the Court decided Wisconsin v. Mitchell. In Mitchell, the defendant participated in an aggravated assault by a group of black men and boys on a white boy, chosen as a victim because of his race. The attack left the victim unconscious, and he slipped into a coma. Wisconsin law provided that if a perpetrator, in committing a crime, selected his victim on the basis of her race, religion, color, disability, sexual orientation, national origin or ancestry, then he would be eligible for enhanced "hate crime" penalties.
The Justices unanimously upheld the statute in Mitchell, ruling that the government may single out criminal conduct on the basis of the actor's motivation for that conduct and punish acts that stem from that motivation more severely than otherwise identical acts. We see instances of such enhancements, for example, in capital sentencing schemes that identify a financial motive for murder as an aggravating factor that juries can take into account in deciding whether to impose the death penalty.
What's the Distinction? The Difference Between the R.A.V. and Mitchell Statutes
At first glance, it might seem arbitrary and purely semantic to distinguish between the statutes at issue in R.A.V. and in Mitchell, respectively. In both cases, after all, the law authorized punishment (or more severe punishment) for committing a crime because that crime was connected with race, sex or another prohibited category. Is it not superficial to hold that expressing invidious hatred is protected by the First Amendment, but being motivated by invidious hatred is not?
The distinction makes sense, however, once we examine it more closely. One confusing aspect of the problem is that many hate crimes do both things addressed by the First Amendment cases – they communicate racial hatred (as does, for example, the act of burning a cross on a family's lawn), and they also reflect a motive of racial hatred (because the reason the perpetrators selected the victim family was its members' race). Notwithstanding the overlap, however, it is possible to distinguish between these two features of such acts and, accordingly, to distinguish between the laws that target each feature.
Crimes Expressing Hate, Versus Crimes Reflecting Hate
To the extent that an act is penalized because it expresses or communicates hatred, its regulation implicates the First Amendment. To give one example, the law might prohibit you from committing arson, but it may not prohibit you from committing only that subset of arson that shows contempt for the American flag.
Of course, when racial hatred is involved, many people (including some Supreme Court Justices) would find that a narrow and well-defined law condemning the communication of racial hatred through threatening action (like cross-burning), if properly tailored, would survive First Amendment scrutiny. The majority's ruling in R.A.V., however, was that a state law may not single out active expressions of racial hatred for special punishment, any more than it could single out expressions of opposition to the country or its policies (through flag burning) for special punishment.
Given that legal principle, the question is how the special punishment of racially motivated crime is in any way different from the special punishment of expressions of racial hatred. Doesn't illicit motivation come from the brain and therefore represent a thought crime? If anything, isn't it worse to punish a person for the thoughts motivating her actions, than it is to punish her for the expressive content of her actions? The latter at least inflicts a concrete injury with its message; the former is completely internal, is it not?
The reason to answer this question "no" is both logical and practical. From a logical point of view, there is an important distinction between thoughts (e.g., "I dislike that group") and motives for actions (e.g., the hatred of a group, which drives the killing of a member of "that group"). Motivation is inextricably linked to action, in a way that thought alone is not.
Hypothetical Cases Show the Difference Between Thought Alone and Thought as Motivation for Action
To take one example, consider a person who attacks a Catholic man and also hates Catholic men, but who selects his victim for non-religious reasons, such as the latter's cutting him off in traffic. Such a perpetrator will not (and may not) be punished for his hatred of Catholic men (To punish him for that would represent the prosecution of "thought crime.") Now consider another person, who attacks a Catholic man because he is Catholic. The latter person is actually doing something quite different from the former – and many would say that he is doing (and not just thinking) something worse.
Consider, now, a third person, who robs a drug store to get life-saving medicine for his children. We might view such an act, though illegal, to be morally distinct from that of a fourth person who robs the same drug store because he wants to cook methamphetamines for a weekend party. We might even excuse the third person as having acted under a kind of duress, because of the nature of his motivation. And in the death penalty area, we view some motivations (such as financial ones) as permissible aggravating factors that can mean the difference between a sentence of death and one of life imprisonment.
The reason for a perpetrator's actions can therefore matter a great deal in assessing the depravity of those actions, regardless of whether or not the perpetrator wishes to send a message with what he does. To state this differently, the aspect of conduct that permissible hate crime legislation targets is not the expression of ideas but the driving motivation behind the crime, because some motivations are rightly considered more culpable than others.
Anti-discrimination Law Similarly Focuses on Particular Motivations for Action
To put these arguments into a familiar context, consider anti-discrimination law. A law that prohibits an employer from firing an employee on the basis of that employee's race is singling out one kind of reason for acting (race-based motivation) and differentially penalizing actions taken for that reason, by permitting the terminated employee to sue the employer for employment discrimination. When anti-discrimination law does not apply, by contrast, an employer may generally fire people "at will," for any reason or for no reason at all.
This provides an interesting contrast with hate crime sentencing enhancements, which operate on conduct that is already criminal. By comparison, anti-discrimination law takes conduct that is otherwise entirely legal (firing an employee within an at-will employment arrangement) and designates that conduct as illegal precisely because of its motivation. The only difference between what is legal and what is illegal, in other words, is the motivation – what opponents of hate crime legislation characterize as merely the thought in the actor's mind.
Yet opponents of the recent hate-crime bill have not raised this issue with respect to anti-discrimination law. Quite to the contrary, they have in general been the same people who consistently oppose affirmative action on the ground that it unfairly discriminates against white men.
This means that when an employer or academic institution fails, respectively, to hire or admit a white male applicant because he is not a minority group member or a woman, some of the same people (typically, Republicans) who oppose the hate crime law believe an injustice has occurred and are prepared to litigate, under either constitutional or statutory anti-discrimination principles, to hold the employer or school accountable for its improperly motivated behavior. In other words, they are happy to look at motivation – and to punish it – in a racially-motivated decision not to hire a white man, but they refuse to look at motivation – and to punish it – in a sexual-orientation-motivated decision to attack, say, a gay man.
Why Would Those Who Happily Look to Motivation in the "Reverse Discrimination" Context Oppose the Hate Crimes Bill?
It appears, then, that those who assert that the hate crime bill represents a prohibition on "thought crime" either do not understand or do not truly believe what they are saying. In other contexts, they are comfortable and even enthusiastic about condemning the behavior of actors whose reasons and motivations offend them. And this is true even in areas in which, absent the relevant motivation, the conduct would – unlike in the hate crime context – be perfectly legal (such as the area of at-will employment).
If opponents are not truly of the view that hate crimes are "thought crimes," however, what explains the opposition?
As with any attempt to identify motive, my efforts to explain conservative opposition to the hate crime bill's expansion may turn out to be mistaken. My hypothesis, however, is that those who dislike gay people (one of the groups whose status was added in the hate crime bill amendment, under "sexual orientation") might not like the idea of singling out crimes committed on the basis of the victim's perceived homosexuality for more severe punishment. Such opponents might, in fact, view an action that is taken out of animus toward gay people to be understandable and less worthy of condemnation than other similar crimes.
What basis do I have for making such an accusation? One answer is that the stated rationale ("thought crimes") for opposing the legislation is so weak and unpersuasive, as I explained above, that it is very hard to believe that those who mouth it truly find it convincing. And when people falsely identify their reasons for doing something, it is likely that the real reasons are less savory and harder to defend.
An unspoken animus toward gay people is the most obvious alternative account of the opposition to including gay, lesbian, bisexual, and transgender people among the groups protected by existing hate crime legislation. And it is also consistent with the religious right's campaign against those who violate traditional ideas about family values (including heterosexual, married, and patriarchal norms).
If I am right in my hypothesis about what has motivated many conservatives' opposition to the hate crime bill, then it is fair to say that by their actions, they are essentially condoning prejudice-motivated crimes against gay men, lesbians, and transgender persons. Such persons (along with disabled individuals and women) are especially vulnerable to hate crimes, because of the prejudice they continue to face. When government officials – including legislators – oppose the protection of such individuals, without offering a plausible account of the basis for their opposition, they effectively express the view, in their official capacities, that hatred of such vulnerable persons is not an especially bad reason for committing a crime, perhaps even a good reason. Such an approach should be anathema in a nation committed to equal treatment of its people. ..Source..
Maryland has become the first state in the nation to protect homeless people under a hate-crimes law.
Gov. Martin O'Malley signed a bill Thursday that explicitly outlaws targeting people for crimes because they are homeless.
The bill was sponsored by a conservative state senator who opposed extending hate-crime protections to gays and lesbians. Since then, Republican Sen. Alex Mooney has lobbied to expand the hate-crimes law to include other groups.
Mooney says the homeless are a particularly vulnerable population. He introduced the bill four years running before it was finally approved.
Similar legislation is being considered in several other states, including California and Texas. The Maryland law takes effect Oct. 1. ..News Source.. by BEN NUCKOLS
There just might be a problem with adding "Sexual Orientation" as a new basis for hate crimes. The debate on this is heated! Further, the issue of "Religious Speech" possibly being curtailed, I think is overblown. So far the discussion on that issue seems to misconstrue normal discussion into hateful speech and thus being prosecuted for such.
Rep. Paul Broun [R-GA] posts YouTube Video: Dr. Broun stands up for free speech and against the unconstitutional hate crimes legislation
Main opposition to the bill:
Rep. Lamar Smith [R-TX]: Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, every year thousands of violent crimes are committed out of hate, but just as many violent crimes, if not more, are motivated by something other than hate--greed, jealousy, desperation or revenge, just to name a few. An individual's motivation for committing a violent crime is usually complex and often speculative.
Every violent crime is deplorable, regardless of its motivation. Every violent crime can be devastating, not only to the victim and their family, but also to the larger community whose sense of safety has been violated. That's why all violent crimes should be vigorously prosecuted.
Unfortunately, this bill undermines one of the most basic principles of our criminal justice system--equal justice for all. Under this bill, justice will no longer be equal. Justice will now depend on the race, gender, sexual orientation, disability or other protected status of the victim. It will allow different penalties to be imposed for the same crime. This is the real injustice.
One of the most troublesome aspects of this bill is that it divides America. It divides America by race, again, gender, sexual orientation, disability, or other status. We should focus on the opposite, uniting America, not dividing our country.
.The bill also could have a chilling effect on the words of religious leaders or members of religious groups. For example, religious individuals who feel strongly about some values may hesitate to discuss their personal beliefs about homosexuality or gay marriage for fear of criminal investigation.
Some of my colleagues on the other side claim that the bill protects religious speech. But religious leaders could still be subjected to criminal investigations and be reluctant to preach the teachings of their faith as a result of this bill.
In addition, the bill itself is probably unconstitutional and will be struck down by the courts. There is little evidence to support the claim that hate crimes impact interstate or foreign commerce, an important consideration for any Federal court reviewing the constitutionality of this legislation.
In 2000, the Supreme Court in United States v. Morrison struck down a prohibition on gender-motivated violence. In that case the court specifically warned Congress that the commerce clause does not extend to "noneconomic, violent criminal conduct" that does not cross State lines.
Nor is the proposed legislation authorized under the 14th and 15th Amendments. Those amendments extend only to State action and do not cover the actions of private persons who commit violent crimes.
While the 13th Amendment reaches private action such as individual criminal conduct, it is difficult to argue that one's religion or national origin constitutes a "badge" or "incident" of slavery, the subject of the 13th Amendment.
Also this bill purports to federalize crimes that are being successfully prosecuted by our States and local governments. Furthermore, FBI statistics show that the incidence of so-called hate crimes has actually declined and substantially declined over the last 10 years. In 2007, for example, of the approximately 17,000 homicides that occurred in the U.S., only nine of the 17,000 murders were determined to be motivated by bias.
This legislation blurs the lines between violent belief, which is constitutionally protected, and violent action, which is not. If we go down this road, where does it end? With speech monitors and thought police?
I urge my colleagues to oppose the bill.
Mr. Speaker, I reserve the balance of my time.
Additional discussion regarding pedophilia and other philias.
The issue of pedophiles etc. came into the discussion during consideration of a "Transexual Amendment" to the hate crimes bill, and that amendment was voted down:
Rep. Louis Gohmert TX:
Rep. Alcee Hastings FL:
Rep King's speech and printed testimony are not the same:
Rep. Steve King [R-IA]: I thank the gentleman from Texas for his leadership in opposition to this issue and for yielding.
The gentleman, the previous speaker, just said this bill only punishes violent crimes. I take you to the language from the bill. Here's the definition of a crime of violence. It means an offense that has, as an element, the threatened use of force against the property of another. If one threatens to use force against the property of another--this is verbatim from the section that is referenced in the existing code--property crimes are included in this, threats against property crimes are included in this. Hate crimes, the definition of hate crimes in the Federal statutes means a crime when the perpetrator selects property because of the property owner's actual or perceived sexual orientation.
This isn't just violent crimes. It is in some of the Federal segment of it but not in the assistance that goes to local governments. And in local governments it also states in the bill that any local jurisdiction's hate crimes ordinance or legislation can be supported by supporting the prosecution of the local hate crimes legislation that's there.
And so whatever local jurisdiction may determine is a hate crime is covered under this bill. It might be a city, a county, a municipality; it might be a parish, it might be a State. It might be San Francisco's ordinance that says, Thou shalt not discriminate against the short, the fat, the tall, or the skinny. That is hate crimes ordinances that could be prosecuted with Federal assistance under this bill. The short, the fat, the tall, the skinny. That will cover some regular people, I think.
And so I would ask this: Why are you dividing us? Why are you pitting Americans against Americans? That's a rhetorical question, Mr. Speaker. This divides us and pits Americans against Americans. And the definitions in this bill are broad, ambiguous and undefined anywhere with any consensus, even among the professionals that deal with this on a daily basis.
In the committee, I asked specifically the question, "What is the definition for sexual orientation?" The answer that I got back from the gentlelady from Wisconsin was, "This bill only covers homosexuality and heterosexuality." Now it presumably excludes bisexuality, but in the rule debate, the gentleman from Florida (Mr. Hastings) said, "No, no. Here's what we have," and he read through a whole list of philias, he called it.
There are 547 specific paraphilias that are listed by the American Psychological Association. About 30 of them have been read into this RECORD. I've got a list of these 30 philias. Among them pedophilia--the obsession with children--which specifically was excluded from the bill when I offered the amendment by the Judiciary Committee.
So, Mr. Speaker, we're going down the path here of no one really knows. Am I going to buy into the statement made by the very senior member of the Rules Committee who says I want to protect all philias whatsoever no matter what the proclivity? And many of them are perversions, Mr. Speaker. We're going to grant that protected status to people who are actually breaking the law if they act on their particular sexual orientation, or are we going to limit it to--as the gentlelady from Wisconsin says--homosexuality and heterosexuality, not bisexuality.
I tried to explain this to the press as they asked me questions. And finally my answer became, "If this sounds confusing and gibberish, it is." And it leaves it open to any judge, any lawyer, anyone for anything that is in their head or might be their plumbing or might be in the perception of the perpetrator as well as, and/or, the perception of the alleged victim.
There is no precedent for this in law, this broad, broad idea that we're going to punish what is in the head of the perpetrator by dividing what may or may not have been in the head of the victim. That's where this legislation takes us.
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