Robert:

The thing that is really wrong with hate crimes legislation is that it is simply bad law. It codifies prejudice and uneven enforcement of the law – an injustice it was purportedly created to remedy. A white killing a black because of race has still committed murder – the racial motivation is no more hateful in and of itself than any of the other heinous reasons people have for offing each other. And is it intrinsically worse than black-on-black crime? Or black-on-white crime? Is the victim any less dead?

It is also quite possible that racially-motivated murders will take place and, because the racial motivation is not apparent, will be punished under a less stringent standard.

Silly. Murder is murder, rape is rape, torture is torture, harrassment is harrassment. Subjective motivation is just that: hard to judge and, by and large, unknowable to outsiders. Let’s try to stay in the realm of the known and leave the psychobabble to Barbara Streisand and her ilk.

Cass,

We largely agree, though the part I dislike the most—and find the most heinous—is the notion that people are being treated differently, i.e. prosecuted, for thoughts. The crime is no worse in and of itself and the victim is no less dead, raped, etc. regardless of motive.

I’m not a fan of hate crime legislation either, but I don’t think it can be dismissed merely because it involves “subjective motivation.” We distinguish, and rightly so, between a murder that is a “crime of passion” and one committed “with malice aforethought.” That’s subjective motivation. Even the difference between homicide and negligent manslaughter is a matter of subjective motivation.

I think the problem with hate crimes legislation is that it denies equal protection to someone on the basis of their political beliefs, even if those beliefs are altogether odious. That’s a more narrow distinction than claiming that motives should never be taken into account.

Brock,

I skipped the motives stuff, but don’t we routinely judge a criminal’s motives in the sense of “did he intend to commit a crime”? That’s why I avoided it. It just seems to me that even hateful views are protected by the constitution, and it is the actions themselves that are proscribed. Agree?

It’s the actions themselves that are proscribed, but motives frequently make the difference between the most serious of crimes (A shot B because A wanted to take B’s money), a not-quite-as-serious crime (A shot B because A caught B in bed with his wife), and not a crime at all (A shot B because A believed that B was going to kill him).

Somehow, I think we have to say that racism, religious hatred, etc., are in a special class, “political beliefs,” and that a crime cannot be made more serious (or mitigated) by those beliefs, even if they motivate the crime. That’s not entirely satisfying, but that’s the best I can do.

Brock, I’m not sure I claimed motives should never be taken into account – it was a mercifully short comment (rare for me – I decided to take pity on you guys for once).

I’m not sure it matters WHY you hate someone though. Do you hate them because they keep leaving lengthy and vapid comments on your blog, or because they slept with your wife, or because they’re black, or because they’re white, or because they’re ugly, or have an unsightly mole that annoys you, or because they have an annoyingly whiny voice, or voted for the Shrub or for Kedwards who lost the election but they still won’t take that (*&^^ enormous sign down 6 weeks after the election??? :)

We do recognize crimes of passion, but not if there is sufficient time for “cooling off” – even there, if you had time to clear your head, the law won’t let you off. You can grab a gun and waste everyone if you do it right after you surprise Roto-Rooter Man as he’s inspecting your wife’s plumbing, but if you leave and come back a week later, most juries are not going to be too sympathetic. It is now cold-blooded murder.

Well, it’s alive, but I’m not sure about well. I expect the enforcement of McC-FG to become more restrictive in light of this previous campaign cycle. There are surely people looking hard at attempting to regulate the blogosphere for political content in light of the election and had one of the innane provisions of that bill been openly violated, someone would be getting prosecuted for it. I’m not paying close enough attention either; maybe someone will yet.

Meanwhile, a judge is fined and placed on probation for a tasteless, offensive costume, but nevertheless this act causes no real harm beyond offense. If the judge is suspected of bias or racism in his court then I assume there is a record that can be examined for what would be a real crime.

Finally, free speech isn’t exactly healthy at many higher ed institutions. The degree to which resources must be expended to defend controversial (read: ‘non-progressive’) speech is significant.