ACLU: September 2007 Archives

Well George, you missed it by 10 years, and that's not so close considering you made your prediction as recently as 1949 with your novel "1984".  It wasn't until 1994 that federal law created thoughtcriminals by passing a law against hate crimes. ^[1]  Not only were you 10 years too early, but we still don't have a special branch of Thought Police to 'protect' us.  As for Big Brother; let's leave that for another time.

On the surface, I find the justifications for hate crime legislation pretty convincing.  After all, the legal concept of mens rea -- literally 'guilty mind'; usually used synonymously with "intent" -- has been a fixture in western jurisprudence for a long, long time, and the person committing a hate crime ^[2] certainly intends to commit a crime. (And 'criminal intent' is required to be culpable, therefore punishable; the law often forgives 'accidents'.) These particular crimes are also said to produce greater suffering for the victim, ^[3] as well as harm the victim's community. ^[4] 

On the web I have found a plethora of sites defending, justifying and legitimizing hate crime legislation, ^[5] and a dearth of sites challenging this legislation. ^[6]  Since so many states have passed hate crime legislation and so many Supreme Courts have upheld them, ^[7] maybe the disparity between the number of sites, Pro and Con, can be explained because the issue has been debated enough and is now closed; hate crime legislation won.

This may be the case with our legal system, yet many claim that system has become so radicalized, its opinion doesn't count for much anymore.  As evidence, they point to the fact that the General Counsel for the ACLU - from 1973-1980 - is now sitting on the Supreme Court of the United States --  Ruth Bader Ginsburg. I wonder ... With such credentials, if Justice Ginsburg isn't legitimately labeled a radical, who in America could be?  Or have we moved so far that the ACLU is no longer radical; is now so much closer to the middle of the road as to be only liberal?

Here's an amusing twist: vegetable hate crimes.  (Is it interesting that the ACLU seems to be defending the hatred of vegetables while working to criminalize the hatred of certain people?)

If you look into the Pros & Cons of hate crime legislation and the judicial rulings surrounding them, you will find lots of references to the perpetrator's motive and motivation, as well as what the perpetrator intends to do, -- their intention; and how these apply to the law.  If you then look up the definitions of these words, you'll find reference to the words: believe and belief; thought and think; opinion and of course hate.

Take note of the subtle, esoteric similarities and differences in the definitions of these words.  For instance:

• The noun thought is defined as: 1a) the action or process of thinking; and 2b) the power to imagine.  It is also defined as: 3b) a developed intention or plan.
• The verb think is defined as: 1) to form or have in the mind; 3a) to have as an opinion; 4a) to reflect on.  It is also defined as: 2) to have as an intention.
• The verb intend is defines as: 4a) to have in mind as a purpose or goal.

Notice particularly that to intend (mens rea) is to "have in mind", and to "have in the mind" is to think. 

Can the case be made that the esoteric reasoning surrounding the legitimization of hate crime legislation is mere sophistry?  Whatever your answer to this question, it must be admitted that stating in public something like: "I hate XXXXXs"; ^[8] or "I enjoy it when a XXXXX is hurt"; or "I like to hurt XXXXXs"; or "I want to hurt XXXXXs"; is constitutionally protected.  It must also be admitted that thinking and/or announcing these thoughts while committing a crime against a XXXXX is now illegal.

Maybe the proponents of hate crime legislation ^[9] are correct (a lot of good minds think so).  That despite the possible confusion of terms, hate crime legislation does not make the thinking, or speaking, of a thought illegal.  What is clear is that reasonable folks of goodwill disagree regarding this claim. 

But the larger question is why our lawmakers and courts are so willing to tread so close to the line ^[10] of making certain thoughts ^[11] illegal, if they haven't crossed it already? ^[12] Our Supreme Court has often avoided entanglement in certain issues because they feel they are not properly involved in such areas or not competent as a body to render judgments in some areas.  Is the freedom of thought one such area?   In other areas, the court said there was a wall of separation which so many deem so important.  Why is the line between criminalizing behavior and criminalizing thought practically impossible to see and comparatively so unimportant?

With the line between thought and action so blurry, how will one know when one has crossed it?  Heck, maybe it won't even matter in our politically correct times:

"In the end we shall make thoughtcrime literally impossible, because there will be nowords in which to express it". Syme; one of Big Brother's henchmen from Orwell's 1984

 

Notes:

[1] On September 13, 1994, the Omnibus Crime Control and Safe Streets Act of 1968 was amended, to make hate crimes illegal, via the Violent Crime Control and Law Enforcement Act of 1994 (H.R.3355, Public Law No: 103-322) to include the following:

SEC. 280003. DIRECTION TO UNITED STATES SENTENCING COMMISSION REGARDING SENTENCING ENHANCEMENTS FOR HATE CRIMES.

(a) DEFINITION- In this section, `hate crime' means a crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime, because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person.

(b) SENTENCING ENHANCEMENT- Pursuant to section 994 of title 28, United States Code, the United States Sentencing Commission shall promulgate guidelines or amend existing guidelines to provide sentencing enhancements of not less than 3 offense levels for offenses that the finder of fact at trial determines beyond a reasonable doubt are hate crimes. In carrying out this section, the United States Sentencing Commission shall ensure that there is reasonable consistency with other guidelines, avoid duplicative punishments for substantially the same offense, and take into account any mitigating circumstances that might justify exceptions.

[2] According to the Federal Bureau of Investigation's Hate Crime Statistics for 2004, there were 7,649 criminal hate crime incidents, out of 1,367,009 violent crimes and 10,328,255 property crimes; 0.065% of crimes committed in 2004 were hate crimes.    In perspective, according to the National Safety Council, or NSC, in 2003 there were 4,500 accidental workplace fatalities and 13,900 fatalities due to accidental poisoning.  I wonder how many of the hate crimes were fatal to the victim?

[3] In testimony before the House Judiciary Committee, the American Psychological Association, or APA, said:

"... the experience of a serious hate crime has more severe psychological ramifications for the victim than a random crime of similar severity ..."

[4] According to the Anti-Defamation League, or ADL,

"Hate crimes demand a priority response because of their special emotional and psychological impact on the victim and the victim's community."

[5] Some interesting reading supporting hate crime legislation, soon to be called 'bias-crimes':

• University of Tennessee: Hate Crimes Laws: Progressive Politics or Balkanization? 
• Boston College: THE RHETORIC OF LEGAL BACKFIRE [against hate crime legislation]
• Harvard Symposium Essay: AGREEING TO AGREE: A PROPONENT AND OPPONENT OF HATE CRIME LAWS REACH FOR COMMON GROUND. (This is a particularly thoughtful, scholarly essay.)

[6] Some criticisms of hate crime legislation:

• A 'Google book'  excerpt of Jacobs' and Potter's book "Hate Crimes: Criminal Law and Identity Politics"
• FraudFactor: Fixing Criminal Justice System Weakness Only for a Select Few
• The Any Rand Institute, Op-Ed piece: Criminal law should not be used to enforce ideological orthodoxy.

[7] In Wisconsin v. Mitchell (1993), the U.S. Supreme Court reviewed and upheld Todd Mitchell's enhanced sentence for committing a hate crime.

[8] For XXXXX, substitute any particular race, color, religion, national origin, ethnicity, gender, disability or sexual orientation.

[9] Criminal law:

• North Carolina Wesleyan College: Basic Intro to criminal law.
• From Northwestern Law School: What is a crime Outline.
• Boalt Law School: Criminal Law Outline.

[10] Quotes surrounding freedom of thoughts:

• Benjamin Franklin: "Without freedom of thought, there can be no such Thing as Wisdom"
• Victor Frankl: "The last of the human freedoms is to choose one's attitudes".
• William O. Douglas:  "Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us."

[11] "A History of Freedom of Thought"; The University Press, Cambridge, U.S.A., 1913

[12] "I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations."  James Madison.