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August 01, 2007

That Whole Pace Hate-Crime Dealio

I've stayed away from it because it's a pretty difficult issue to shorthand, and I really didn't feel like getting into a whole big thoughtful post on it. I also didn't know what the hell I could possibly say about so-called hate-crimes that hasn't been said a thousand times before.

Allah's post here sort of demonstrates how hard it is to untangle all these issues.

This case illustrates the problem with these laws all along: They purport to criminalize that which is not only non-criminal but also constitutionally protected.

In most cases the actual effect of a hate-crime "enhancement" is fairly small, or fairly unobjectionable. If a convicted murderer has his sentence enhanced by a hate-crime provision, do we notice or even much care? Many crimes are under-penalized as it is. And, in the case of James Byrd's killers, tagging them with a hate-crime rap would hardly have made their penalties harsher: Two were sentenced to death and the third to life in prison, even without a hate-crimes law on the books.

In this case, of course, we see a "crime" that really isn't a crime in the sense that most of us casually mean it -- it's a misdemeanor, and a petty one at that -- trumped up to the level of full-on felony by application of the state's dubious hate-crimes laws, with a possibility of four years in prison for what would, in most other circumstances, not even result in police involvement. If Pace University routinely calls in the cops when it's leftist students destroy conservative newspapers, advertisements, or posters, I haven't heard of it. All of these things are crimes, and yet no one ever thinks of prosecuting the "criminals" for their offenses.

Here we have a guy stealing and destroying a five or ten dollar Koran. This doesn't even rise to the level of petty crime. But, because it's asserted his intent was to "intimidate" the Muslim community, he's charged with crimes that could theoretically put him in prison for four years.

This is obviously not the case where a hate-crime enhancement adds a bit to a the sentence of a serious crime, where the serious crime itself justifies a fair amount of incarceration. In this case, it is the "hate crime" -- and only the hate crime -- aspect of the "crime" that is being prosecuted. In this case, it is only the constitutionally-protected right to free speech, and only the thoughts of the "criminal," which expose him to criminal liability.

This is a true "thoughtcrime" -- apart from his thoughts, there is simply no other crime being prosecuted here. Unless, of course, one claims that ten bucks worth of vandalism is actually the crime here we're interested in deterring.

With a four year prison sentence.

As a purely technical matter, yes, it is the fact that he stole the Koran he flushed that exposes him to criminal liability. But obviously it is the flushing of the Koran that's actually being prosecuted here, and not the penny-ante theft. Had he bought the Koran himself, presumably he'd face no prosecution (or at least the prosecutors would be required to contort themselves in a different way to find a grounds for prosecution).

So:

Flush a Koran (the thing we're actually punishing) that belongs to you: No charge.

Flush a Koran (the thing we're actually punishing) that belongs to Pace University: Possible four years in prison.

At this point it might also be useful to remind the left, and the state, that unpopular speech is protected as well as state-approved speech. Or did they suddenly forget that?

The state will have to prove he intended to "intimidate" Muslims by flushing a Koran. Good luck with that. There are many ways to actually intimidate someone, and soaking a book in toilet water is not not one of them.

What the state is really trying to penalize is not intimidating Muslims at all, but someone making plain his dislike of Muslims. Does he hate Muslims? More than likely.

But this case, more than any high-profile hate crimes prosecution before it, makes clear that in a hate crimes rap what is actually being punished is the hate and not the crime at all, the thought and not the act.

And that is simply impermissible.

As WFB, Jr. once observed, "Oh, if liberals only hated crime as much as they hate hate."

Little Advice To The Prosecutors: Unless you really want to jeopardize the constitutional status of most if not all hate crime statutes, I'd think twice about going forward with his prosecution another step.

This case makes it very difficult to hide the essential unconstitutionality of these laws. You can smuggle in an extra year on a six year sentence without making justices think too much about what they're really penalizing.

Increasing a sentence by infinity percent -- which is what you do when you go from 0 to any larger number -- purely on the basis of the fact someone doesn't like Muslims leaves judges with considerably less breathing room to pretend these are merely "enhancements."

This is not an "enhancement." The hate here is the whole magilla.


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posted by Ace at 05:58 PM

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