Tuesday, May 12, 2009

Hate Crime Legislation Makes Thought Illegal

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." ~ U. S. Constitution, fourteenth amendment

Over at our team blog, American Descent, Marshall Art has posted an entry referencing a couple of articles he read about a hate crime bill. Both of the articles' authors indicate a belief that the latest hate crime legislation enacted in the U.S. House of Representatives includes a prohibition against hate speech, ostensibly making it unlawful to voice an opinion that could be considered hateful to certain groups.

Particularly, groups of a certain race, color, religion, national origin, gender, sexual orientation, gender identity, or disability.

I've read all four versions of this bill, and I see nothing that could be construed to mean hate speech will be made illegal.

Perhaps some reader who is more of a legal expert than I can copy and paste the part of the bill that specifies that speech will be determined a hate crime. As I see it, it only adds a couple of other minority groups to the original wording of the two decade old original bill.

If I am proven mistaken, I will be appreciative.

However, what I do see in the bill, is a superfluous and unnecessary added penalty for violent crimes if the accused is ascertained to have been motivated by hate for the above mentioned "minority" groups.

This determination of motive is problematic at best.

Aside from the obvious fact that adding the appellation, "hate crime" to a crime of violence is superfluous because violent crimes are already illegal, and thus, haven't any need for an addendum based on motivation, just how will a prosecuting attorney determine what could possibly be in the mind of the accused during the commission of a violent crime?

Has some kind of mind reading contraption been invented recently that "Popular Science" doesn't even know about?

If it hasn't, aside from a perpetrator willfully admitting "I did it 'cause he was a homo", or some similar self incriminating statement, there can be no way of knowing, beyond a reasonable doubt, what is in the mind of a criminal during the commission of his crime.

Since I am not an attorney, I will again ask any attorneys reading this if I am accurate when I maintain that motivation is not necessary to obtain a conviction in a court of law. No doubt, knowing the motivation helps determine guilt in some cases, but it isn't necessarily needed to obtain a conviction.

And, unless I'm mistaken, according to the rules of jurisprudence (ideally), the guilt of the accused needs to be proven beyond a reasonable doubt in any court of law in this country before a guilty verdict can be reached.

The way I understand it, under hate crime legislation, motivation is itself a crime.

Additionally, as Art and the two authors indicate, hate crime legislation expressly violates the fourteenth amendment to the Constitution of the United States, specifically, word for word, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws".

If race, color, religion, national origin, gender, sexual orientation, gender identity, or disability is a criteria for determining a harsher sentence, whether it be in favor or against any individual or individuals representing any of these particular minority groups, it is, according to the fourteenth amendment, unconstitutional.

If any legislation would create "Thought Police", it is this legislation.


Susannah said...

So now we have DA's, etc. 'diving' the thoughts, intentions & motives of alleged criminals. Isn't murder, murder, whatever the reason? Isnt' the person just as DEAD??

I don't get it...unless, as you say, it's the path to restriction of political speech.

Susannah said...

oops! I meant to type 'divining,' not diving!

Mark said...

I don't say it's a path to restriction of political speech. I don't see that in the bill at all.

What I do see is prosecuting people for what prosecutors think they think.

Most Rev. Gregori said...

Mark, no matter what the motive behind the "Hate Crimes" legislation, they are unconstitutional, on the grounds that they violate the equal protection clause as they place certain groups in a "special status" afforded more protections then others. Secondly, it also violates the double jeopardy clause. I know of at least two cases in the past where an individual was charged with assault, and when tried in a civil court, in one case the defendant was found not guilty and in another, the defendant was found guilty, but was given a light sentence. In both cases the "victims" (in the first case the victim was black, and in the second the victim was gay)were not happy with the results and managed to convince the government to try them under "Hate Crimes" legislation. As a result, both defendants were found guilty and received very harsh sentences.

Mark said...

Well Father, we know the motive behind hate crimes legislation. It's discrimination. Against white anglo-saxon religious people.

Same as affirmative action.

Some call it reverse discrimination or reverse racism. That would imply there is no racism or discrimination at all. In actuality, it's just plain old discrimination.

But you are correct. Hate Crime legislation is unconstitutional, as I said. It violates the fourteenth amendment clause of equal protection.

Joe said...

Just wait until President BO's mandatory "volunteers" with all the strength of the U.S. military is implemented. There will be "hate crimes" wherever those opposed to BO are found.

Krystal said...

If they pass a federal hate crime bill, a person may be charged twice. For example, if a person steals a purse in Nebraska, they get charged ONLY in Nebraska. If this law passes and they may be able to say that the purse stealing was driven by hate for **insert minority group here** and may then be charged in federal court as well.

Cute way to get around the whole double jeopardy thing...

I've not read the bill, but my understanding is that it will also be able to hush ministers from preaching against homosexuality as well. It could be deamed "hate speach".

Mark said...

Krystal, you can read it for yourself. I linked to it in my post.

As far as I can tell, there is no reference to any kind of speech, hate or otherwise, in the bill.

It does, however, make the motive for a violent crime a crime itself, which is practically impossible to tell unless one admits to committing the crime because he hates someone.

It also elevates one groups status over another group, which is a direct violation of the equal protection clause of the fourteenth amendment.

Jim said...

Mark, good for you for pointing out and insisting that there is no element of the bill that restricts speech or thought (or preachers) in any way. Right on!

Now, on to the next point. I'm no lawyer, but it seems to me that a person who commits homicide may be charged and convicted of one of several crimes depending on the person's motive: Murder 1, Murder 2, Manslaughter (voluntary and involuntary), etc. Seems to me it's up to the prosecution to make the case for motive, that is what was the perpetrator thinking, and the Jury becomes the trier of fact.

Any problem with that?

There are also crimes where a perpetrator is subject to harsher penalties because of "special circumstances" and "aggravating factors".

Any problem with that?

So what's your problem here, really?

Joe, put away the tinfoil hat. No such thing. The volunteer program is like Vista or Peace Corps. It is not in any way military force.

Mark said...

Well, Jim, Since so many Conservative columnists have brought the point up, I figure there must be something in the bill that punishes hate speech, but I just don't see it in there.

As I said, (and I have a asked a well respected, albeit, Liberal Attorney about this), an establishment of motive is not necessary to convict. Yes, it certainly helps to obtain a conviction, and in the case you cited, it helps the jury decide the seriousness of the crime.

But, you kind of make my point there.

We already have crimes like murder, manslaughter etc, in varying degrees. Why add hate crime legislation to it to further muddy the waters?

A jury could reach a verdict of murder. But then they have to decide if it's 1st or 2nd degree murder, or just manslaughter, and then, to what degree?

Then, after all that is decided, they will have to agree on if the perps motive was hatred? Naw, I don't see the necessity.

Incidentally, Dan Trabue and I have gone round and round about this legislation and he always insisted motive needed to be proven to obtain a conviction. This is why I asked an attorney.

His name was George Rawlins. My wife once worked for his law partner many years ago, and she told me he was such a good attorney that he could get the Devil himself off. Apparently, he was very good before he got into trouble over embezzlement, and lost his license. He was also once a Democrat State delegate, who, according to newspaper accounts was instrumental in making the Democratic party in Virginia more Liberal. Not that it matters, but he was gay, too.

I didn't know him well, but I talked with him a few times. He died a few weeks ago. I liked him.

Mark said...

I'll let Joe respond to that last statement, if he wants. But, I kind of know what he'll say.

Susannah said...

You're right, Mark, you didn't say anything about political speech. I re-read your post. Sorry about that.

I do, though, think that this could very well be skewed in that direction, a la Joe's example, with or without Jim's tin foil hats.

Just look @ what's going on in the MSM right now. Private citizens who make statements contrary to what the Left likes (esp. if they're perceived as threats to Obama) are publicly excoriated & some careers are being destroyed (Don Imus, Sarah Palin, that Miss USA gal, Rush Limbaugh, Sean Hannity, Tea Party goers, etc.) - in order to SILENCE THEM! The MSM does this with glee, with giggles, with vehemence, with rancid venom. And they get away with it. The Journalistic Community applauds it. The White House basks in it, though they don't officially sanction it. JUST IMAGINE if an OFFICIAL Gov't sanctioned entity were given license to prowl communties enforcing PC ideas, thoughts, motives...

This sounds like tin-foil-hat talk to you, Jim, I know, but you probably don't believe the MSM is biased, either. (Or do you??)

As for Hate Crimes...the argument the prosecutors establish motives in order to draw down harsher penalties, therefore "what's the difference" w/ 'hate crime' as an aggravating motive...the difference, as Mark so clearly elucidates, is that it separates out groups of people - bursting the concept of equal protection in favor of those people. Would my life ostensibly be of less value - rendering lesser punishement if I were a violent crime victim - because I'm NOT gay, minority, etc.?? Besides, provisions for aggravating factors already exist in the current system. This is superfluous lawyer-speak intended to promote special interest agenda. Period.

eyes wide open said...

No question, as we view the tactics of the left in many other issues, they would love to silence their opposition. Socialism and communism has always depended on silencing free speech and the skilled use of propaganda. Moreover, when it comes to Christianity, the principles of freedom are integrally entwined with Christianity, the tyrant intuitively knows this. True religion has always been one of the primary focuses of the gestapo. This legislation appears to be yet another tactical step toward these goals. Let us face the facts, if they were to play their hands to early we would revolt. This is just another tightening of the noose.

Jim O said...

Motive helps in establishing that a crime was committed, as a matter of fact. In other words, it's easier to convince a jury that the defendant did it if the defendant had a motive to do it. "Motive, means and opportunity," as they say. But the idea that an objectively criminal act should be punished more severely because of defendant's motive? That's thought crime - anathema to our system of justice. Or, at least, it used to be.

Jim said...

Susannah said,

"Private citizens who make statements contrary to what the Left likes (esp. if they're perceived as threats to Obama) are publicly excoriated & some careers are being destroyed (Don Imus, Sarah Palin, that Miss USA gal, Rush Limbaugh, Sean Hannity, Tea Party goers, etc.)"

Um, these are not private citizens. And last I checked, neither Limbaugh or Hannity have been silenced nor their careers destroyed. Same for Palin or any Tea Party goers. And Miss CA is certainly not silenced. She's making the rounds of all the TV shows.

Mark said...

Liberal Jim,

Susannah did not say anyone was silenced, however, I believe if Liberals had their way, many Conservatives would be silenced.

Limbaugh, Hannity, Imus, Ms California, and certainly tea party attendees are most definitely private citizens. They are famous, but nevertheless, they remain private citizens.

Sarah Palin is the only public figure on the list because she is a political leader. Hannity and Limbaugh are merely talk show hosts, not politicians. They are private citizens.

Imus's career was temporarily destroyed, and if Liberals had their way, he would still be off the air, and you know it.

And there is no question at all that all of the above mentioned have been mercilessly excoriated for their beliefs and opinions, so Susannah was exactly correct in everything she said.

Palin's career wasn't destroyed but her reputation has been severely damaged by personal and false attacks on her during the election year. She will likely carry the false perception that the left created in her the rest of her life, much the same as others who made the leftists nervous, such as Newt Gingrich.

Personally, I don't care too much for Gingrich, but he was never guilty of the specific accusations leveled at him by the Libs when he was Speaker of the House. But that false stigma will haunt him the rest of his life, and by the way, perhaps his career wasn't destroyed by the left, but his political career certainly was.

It remains to be seen if Palin's political career will suffer as a result of the unconscionable attacks on her during the campaign.

Susannah said...

Hi Jim~ No sir, I distinctly said the following: "in order to SILENCE THEM" ...which implies as EFFORT to silence, not actual success at such effort (which I'm certain frustrates the Left no end - thus the exhumation of the 'Fairness Doctrine' threat). And, um, those folks I mentioned are indeed private citizens (w/ the exception of S. Palin). And that includes myself - a Tea Party goes - who was ABSOLUTELY maligned & ridiculed by the MSM (if not by name, then by association w/ Tea Parties). If you don't believe it, please see my posts on it. I wrote a few.

Mark - EXCELLENT response. Thank you.