NationStates Jolt Archive

I know this has been debated here before (and probably will again), hehe, but I haven't seen it in a while. The US House of Representatives is currently considering a bill that would include sexual orientation and gender identity under hate crimes legislation. I wrote to my rep about this and received, as part of his response, this paragraph:


While I understand the points you have made in favor of the Hate Crimes Prevention Act, I am concerned with differentiating “hate crimes” from other crimes. It is my belief that all crimes should be prosecuted equally. All criminal acts are committed with the intention of harming or depriving another individual, and trying to elevate crimes against certain individuals would be an arbitrary way to punish. Please know, however, I absolutely believe that those who commit crimes against anyone should be punished to the fullest extent of the law.

I see this quite often in discussions. People mistakenly label hate crime legislation as "elevating crime against certain individuals." That is not the purpose or the result of such legislation. Instead, the point is to further criminalize certain intent. We already look at motive and intent in the prosecution of crimes. A person, for instance, who kills for money is most likely going to receive a much higher sentence than one who kills in a crime of passion. I believe that the reason for this (besides the fact that most of us can understand one more than the other) is that the person who will commit murder or assault another person for money is much more likely to do it again - to be a further danger to society - than someone who did so in the heat of passion in a particular situation. We aren't elevating certain victims here. We are representing the particular harm done by the person - and why it was done.

Likewise, the purpose of hate crime legislation is to look at the reason for the crime. A person who attacks or kills a black person, a white person, an Asian person, a man, a woman, a homosexual person, or a transgendered person because of their status as a member of that group is a danger to every person within that group. As such, they should receive a higher sentence. It should be made exceedingly clear that such crimes will not be permitted and the person who commits them should be taken off the streets, where they are a danger to others.

I agree with your rep.

Is it good to deter hate-crimes through extra punishment? Yes.

Is it tolerable to liberty and justice to discriminate somehow whether "hate" is sufficiently involved in the crime, and to punish two people who *do* the same thing in different ways because one hated his victim? Probably not.

That there's called a paradox ;) And I sure don't have a solution.

I agree with your rep.

so, how goes the campaign against the unjust distinction between first and second degree murder?

Rather than have hate crime legislation as something that is a separate charge from the original charge, include it within the existing charge as an aggravating element. That makes sense to me, we already have other aggravating elements, why not just utilize this facet of the law?

Is it good to deter hate-crimes through extra punishment? Yes.

Is it tolerable to liberty and justice to discriminate somehow whether "hate" is sufficiently involved in the crime, and to punish two people who *do* the same thing in different ways because one hated his victim? Probably not.

That there's called a paradox ;) And I sure don't have a solution.

Hate crime legislation -- other than establishing data collection and research -- merely provide for additional punishment for crimes based on intent. As explained by the Supreme Court below, intent and motive have always been considered relevant to sentencing.

In the case of federal law, Section 280003 of the Violent Crime Control and Law Enforcement Act of 1994 merely provided for a sentence enhancement based on a hate crime intent.

That is codified in the Federal Sentencing Guidelines as follows:

§3A1.1. Hate Crime Motivation or Vulnerable Victim

(a) If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person, increase by 3 levels.

(b)(1) If the defendant knew or should have known that a victim of the offense was a vulnerable victim, increase by 2 levels.

(2) If (A) subdivision (1) applies; and (B) the offense involved a large number of vulnerable victims, increase the offense level determined under subdivision (1) by 2 additional levels.

(c) Special Instruction

(1) Subsection (a) shall not apply if an adjustment from §2H1.1(b)(1) applies.

Commentary

Application Notes:

1. Subsection (a) applies to offenses that are hate crimes. Note that special evidentiary requirements govern the application of this subsection.

Do not apply subsection (a) on the basis of gender in the case of a sexual offense. In such cases, this factor is taken into account by the offense level of the Chapter Two offense guideline. Moreover, do not apply subsection (a) if an adjustment from §2H1.1(b)(1) applies.

2. For purposes of subsection (b), "vulnerable victim" means a person (A) who is a victim of the offense of conviction and any conduct for which the defendant is accountable under §1B1.3 (Relevant Conduct); and (B) who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.

Subsection (b) applies to offenses involving an unusually vulnerable victim in which the defendant knows or should have known of the victim’s unusual vulnerability. The adjustment would apply, for example, in a fraud case in which the defendant marketed an ineffective cancer cure or in a robbery in which the defendant selected a handicapped victim. But it would not apply in a case in which the defendant sold fraudulent securities by mail to the general public and one of the victims happened to be senile. Similarly, for example, a bank teller is not an unusually vulnerable victim solely by virtue of the teller’s position in a bank.

Do not apply subsection (b) if the factor that makes the person a vulnerable victim is incorporated in the offense guideline. For example, if the offense guideline provides an enhancement for the age of the victim, this subsection would not be applied unless the victim was unusually vulnerable for reasons unrelated to age.

3. The adjustments from subsections (a) and (b) are to be applied cumulatively. Do not, however, apply subsection (b) in a case in which subsection (a) applies unless a victim of the offense was unusually vulnerable for reasons unrelated to race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation.

4. If an enhancement from subsection (b) applies and the defendant’s criminal history includes a prior sentence for an offense that involved the selection of a vulnerable victim, an upward departure may be warranted.

If you are familiar with the Sentencing Guidelines, then you know that sentencing enhancements are provided based on a very wide range of criteria -- including all sorts of things related to intent or motive.

The DoJ's National Criminal Justice Reference Service links to this site (http://www.adl.org/99hatecrime/intro.asp) for further explanation of hate crime legislation.

Anyway, the Supreme Court addressed this issue in Wisconsin v. Mitchell (http://laws.findlaw.com/us/508/476.html ) (92-515), 508 US 47 (1993). I find the majority opinion persuasive. Obviously others are free to disagree.

Traditionally, sentencing judges have considered a wide variety of factors in addition to evidence bearing on guilt in determining what sentence to impose on a convicted defendant. See Payne v. Tennessee, 501 U.S. 808 820-821 (1991); United States v. Tucker, 404 U.S. 443, 446 (1972); Williams v. New York, 337 U.S. 241, 246 (1949). The defendant's motive for committing the offense is one important factor. See 1 W. LeFave & A. Scott, Substantive Criminal Law 3.6(b), p. 324 (1986) ("Motives are most relevant when the trial judge sets the defendant's sentence, and it is not uncommon for a defendant to receive a minimum sentence because he was acting with good motives, or a rather high sentence because of his bad motives"); cf. Tison v. Arizona, 481 U.S. 137, 156 (1987) ("Deeply ingrained in our legal tradition is the idea that the more purposeful is the criminal conduct, the more serious is the offense, and, therefore, the more severely it ought to be punished"). Thus, in many States, the commission of a murder or other capital offense for pecuniary gain is a separate aggravating circumstance under the capital sentencing statute. See, e.g., Ariz.Rev.Stat.Ann. 13-703(F)(5) (1989); Fla.Stat. 921.141(5)(f) (Supp. 1992); Miss.Code Ann. 99-19-101(5)(f) (Supp. 1992); N.C.Gen.Stat. 15A-2000(e)(6) (1992); Wyo.Stat. 6-2-102(h)(vi) (Supp. 1992).

... Thus, in Barclay v. Florida, 463 U.S. 939 (1983) (plurality opinion), we allowed the sentencing judge to take into account the defendant's racial animus towards his victim. The evidence in that case showed that the defendant's membership in the Black Liberation Army and desire to provoke a "race war" were related to the murder of a white man for which he was convicted. See id. at 942-944. Because "the elements of racial hatred in [the] murder" were relevant to several aggravating factors, we held that the trial judge permissibly took this evidence into account in sentencing the defendant to death. Id. at 949, and n. 7.

Rather than have hate crime legislation as something that is a separate charge from the original charge, include it within the existing charge as an aggravating element. That makes sense to me, we already have other aggravating elements, why not just utilize this facet of the law?

Um. That is exactly how hate crime legislation is written.

Um. That is exactly how hate crime legislation is written.

Did I express any sentiments in favor of change? No, I'm just expressing my ideal option on the matter.

Hate crimes amount to Thought Crime. A concept I vehemently disagree with. It doesn't particularly matter why you beat the hell out of someone or why you killed 'em. They're still victims.

Just because you hate gays and you killed one doesn't make the guy any more dead.

Hate crimes amount to Thought Crime. A concept I vehemently disagree with.

Bullshit.

A thought crime would make it a crime to have certain thoughts. You can still have hateful thoughts and not commit any hate crime. You can even engage in hateful speech and not commit any hate crime.

But if you commit some other crime (like battery), your sentence may be enhanced or lessened depending on your intent or motive.

It doesn't particularly matter why you beat the hell out of someone or why you killed 'em. They're still victims.

Just because you hate gays and you killed one doesn't make the guy any more dead.

So you would eliminate the districtions between first-degree murder, second-degree murder, voluntary manslaughter, etc?

After all, it doesn't matter why you killed someone, it doesn't make the person any more dead.

I agree with your rep.

I agree with my rep, too. I just don't think it has anything at all to do with hate crime legislation, which has nothing at all to do with elevating crimes against certain individuals.

The idea is not that assaulting a person of a certain group is somehow worse than assaulting a person who does not belong to that group. Instead, it is an assault that occurs because the victim belongs to a particular group should be sentenced differently than assaults committed for other reasons. It is analogous to increasing the penalty for a crime because the crime was committed for monetary gain.

Ah, the Supreme Court decision TCT quoted said it much better than I:

Deeply ingrained in our legal tradition is the idea that the more purposeful is the criminal conduct, the more serious is the offense, and, therefore, the more severely it ought to be punished

Hate crime legislation -- other than establishing data collection and research -- merely provide for additional punishment for crimes based on intent. As explained by the Supreme Court below, intent and motive have always been considered relevant to sentencing.

In the case of federal law, Section 280003 of the Violent Crime Control and Law Enforcement Act of 1994 merely provided for a sentence enhancement based on a hate crime intent.

That is codified in the Federal Sentencing Guidelines as follows:

§3A1.1. Hate Crime Motivation or Vulnerable Victim

(a) If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person, increase by 3 levels.

(b)(1) If the defendant knew or should have known that a victim of the offense was a vulnerable victim, increase by 2 levels.

(2) If (A) subdivision (1) applies; and (B) the offense involved a large number of vulnerable victims, increase the offense level determined under subdivision (1) by 2 additional levels.

(c) Special Instruction

(1) Subsection (a) shall not apply if an adjustment from §2H1.1(b)(1) applies.

Commentary

Application Notes:

1. Subsection (a) applies to offenses that are hate crimes. Note that special evidentiary requirements govern the application of this subsection.

Do not apply subsection (a) on the basis of gender in the case of a sexual offense. In such cases, this factor is taken into account by the offense level of the Chapter Two offense guideline. Moreover, do not apply subsection (a) if an adjustment from §2H1.1(b)(1) applies.

2. For purposes of subsection (b), "vulnerable victim" means a person (A) who is a victim of the offense of conviction and any conduct for which the defendant is accountable under §1B1.3 (Relevant Conduct); and (B) who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.

Subsection (b) applies to offenses involving an unusually vulnerable victim in which the defendant knows or should have known of the victim’s unusual vulnerability. The adjustment would apply, for example, in a fraud case in which the defendant marketed an ineffective cancer cure or in a robbery in which the defendant selected a handicapped victim. But it would not apply in a case in which the defendant sold fraudulent securities by mail to the general public and one of the victims happened to be senile. Similarly, for example, a bank teller is not an unusually vulnerable victim solely by virtue of the teller’s position in a bank.

Do not apply subsection (b) if the factor that makes the person a vulnerable victim is incorporated in the offense guideline. For example, if the offense guideline provides an enhancement for the age of the victim, this subsection would not be applied unless the victim was unusually vulnerable for reasons unrelated to age.

3. The adjustments from subsections (a) and (b) are to be applied cumulatively. Do not, however, apply subsection (b) in a case in which subsection (a) applies unless a victim of the offense was unusually vulnerable for reasons unrelated to race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation.

4. If an enhancement from subsection (b) applies and the defendant’s criminal history includes a prior sentence for an offense that involved the selection of a vulnerable victim, an upward departure may be warranted.

If you are familiar with the Sentencing Guidelines, then you know that sentencing enhancements are provided based on a very wide range of criteria -- including all sorts of things related to intent or motive.

The DoJ's National Criminal Justice Reference Service links to this site (http://www.adl.org/99hatecrime/intro.asp) for further explanation of hate crime legislation.

Anyway, the Supreme Court addressed this issue in Wisconsin v. Mitchell (http://laws.findlaw.com/us/508/476.html ) (92-515), 508 US 47 (1993). I find the majority opinion persuasive. Obviously others are free to disagree.

Well, the fine people of SCOTUS have a solution, but it is still an open question for me.

Hate crimes amount to Thought Crime. A concept I vehemently disagree with.

No, it isn't. You can't be arrested for wanting to harm other people, no matter why you want to do so. You can only be arrested for doing so (or attempting to do so.)

It doesn't particularly matter why you beat the hell out of someone or why you killed 'em. They're still victims.

Just because you hate gays and you killed one doesn't make the guy any more dead.

It doesn't make that guy any more dead, but it does mean that the criminal is a danger to all homosexuals. It wasn't just that he was a danger to that one guy. It wasn't that he had a quarrel with that one guy. It is that he is willing to assault any gay person.

so, how goes the campaign against the unjust distinction between first and second degree murder?
Pre-meditation is an act, not a motive.

The trouble with hate crimes legislation is you're penalising someone for having a specific motive that can only apply to certain individuals. So, not only do those individuals receive extra protection under the law, but it's a useless distinction because you can't know why the perp commited the crime.

If I catch my wife with another man and kill him, that's second-degree murder.

But if I'm a known racist and the other man happens to be black, I've somehow commited a hate crime, even though my behaviour may not have been influenced by my hatred.

Motives aren't knowable, so they shouldn't have that much weight.

No, it isn't. You can't be arrested for wanting to harm other people, no matter why you want to do so. You can only be arrested for doing so (or attempting to do so.)
But the hate crime aspect relies on why I did it, not what I did. That's the thought crime aspect.

But the hate crime aspect relies on why I did it, not what I did. That's the thought crime aspect.

To be a thought crime, the thought itself would have to be illegal. It is not. Hence, it is not a thought crime.

Meanwhile, an enhanced sentence because you are a killer-for-hire relies on why you did it, not what you did. The fact that a murder committed in the heat of passion receives a lesser sentence than one committed during a bank robbery relies on why you did it, not what you did.

Why you did it is very pertinent to the question of what further threat you may pose to society, as well as the question of how heinous the crime in question was. Motive has always played a role in sentencing, for these reasons.

But the hate crime aspect relies on why I did it, not what I did. That's the thought crime aspect.

Repeating this argument is the intellectual equivalent of putting your fingers in your ears and chanting "I can't hear you", "I can't hear you"

I see this quite often in discussions. People mistakenly label hate crime legislation as "elevating crime against certain individuals." That is not the purpose or the result of such legislation. Instead, the point is to further criminalize certain intent.
How is that anything but a semantic difference? Criminalizing intent is adding extra criminal charges to certain crimes, thus elevating crimes against certain individuals.

Meanwhile, an enhanced sentence because you are a killer-for-hire relies on why you did it, not what you did. The fact that a murder committed in the heat of passion receives a lesser sentence than one committed during a bank robbery relies on why you did it, not what you did.
No, that's based on what I did. In robbing a bank, I'm engaging in a pre-meditated act. Any death that results directly from my pre-meditated act is felony murder.

Pre-meditation is an act. The absence of pre-meditation is what makes it second-degree, not the passionate motive.
Why you did it is very pertinent to the question of what further threat you may pose to society, as well as the question of how heinous the crime in question was.
Dealing with the second point first, how heinous the crime is is based on what I've done, not why I did it. How can my motive make my behaviour better or worse (or acceptable when it wouldn't be otherwise)?

On the first point, I've always objected to punishing people pre-emptively. And that's what you're doing when you're keeping someone locked up because you think he'll offend again. If you're willing to do that you're one step away from imprisoning people you think will offend before they've done it even once (like imprisoning all psychopaths as soon as they're discovered). That would certainly be a thought crime.
Motive has always played a role in sentencing, for these reasons.
Dumb reasons.

The punishment should be described precisely by the statute. The potential offender can then make his decision as to whether to offend based on what punishment he might face. If you then imprison him longer because you think he'll offend again, you've treated him unfairly.

But my greater concern here is that the offender's motive ISN'T KNOWABLE, so by making it a necessary component of these cases you're inviting inferrence and conjecture into your court. You'll be assigning penalties completely arbitrarily.

How is that anything but a semantic difference? Criminalizing intent is adding extra criminal charges to certain crimes, thus elevating crimes against certain individuals.

Wrong. Further criminalizing certain motives (I used the wrong word before) does nothing more than criminalize certain motives.

In order to "elevate crimes against certain individuals," the law would have to suggest that killing certain individuals was somehow worse than killing other individuals. For instance, a law that made the penalty for killing a black guy worse than that for killing a white guy would be "elevating crimes against certain individuals."

This is not what hate crime legislation does. Instead, it says that a crime committed because the victim is a ethnicity (for example) will receive a harsher punishment. It doesn't matter if the guy is white, black, Asian, Latino, etc. If your reason for killing him was his ethnicity, it qualifies as a hate crime.

It is analogous to "if your reason for killing him was that he has money and you were going to inherit it, we will give you a harsher sentence," or any other sentencing guideline based on motive. Whether or not something is a hate crime is based on the motivation of the criminal, not the specific victim.

If some racist bastard murdered a white guy who he thought was Latino, because he thought the guy was Latino, that would be a hate crime. It wouldn't matter that the victim was not actually Latino, as a desire to harm Latinos would have been the motive.


No, that's based on what I did. In robbing a bank, I'm engaging in a pre-meditated act. Any death that results directly from my pre-meditated act is felony murder.

If it simply had to do with premeditation, there would be no need for further sentencing guidelines. And yet, they are there.

Pre-meditation is an act. The absence of pre-meditation is what makes it second-degree, not the passionate motive.

I wasn't talking about difference in degree. I was talking about differences in sentencing based on motive. Two people may commit premeditated murder. However, if one did so for monetary gain, and the other did so because their spouse was cheating on them, many laws would call for a difference in sentencing.

On the first point, I've always objected to punishing people pre-emptively. And that's what you're doing when you're keeping someone locked up because you think he'll offend again.

No, it isn't pre-emptive. The crime has been committed. We are reacting to it.

If you're willing to do that you're one step away from imprisoning people you think will offend before they've done it even once (like imprisoning all psychopaths as soon as they're discovered). That would certainly be a thought crime.

That would be a problem. Hence the reason no one is arguing in favor of it.

Dumb reasons.

You're right. Society shouldn't worry at all about why they choose the sentencing they do. I forgot that you are in favor of killing people for stealing bubble gum as long as you kill everyone who steals bubble gum.

The punishment should be described precisely by the statute.

And it is. Any potential offender who cares to look into the law will know what punishment can be incurred by the crime, and what mitigating circumstances might increase or decrease that punishment.

But my greater concern here is that the offender's motive ISN'T KNOWABLE, so by making it a necessary component of these cases you're inviting inferrence and conjecture into your court. You'll be assigning penalties completely arbitrarily.

No more arbitrarily than assigning guilt in the first place. We can't know for certain that a given person committed a crime. We only know beyond a reasonable doubt. We can also examine a person's motives. We can't know them with absolute certainty, but we can look at all kinds of evidence for what they were.

Wrong. Further criminalizing certain motives (I used the wrong word before) does nothing more than criminalize certain motives.
No, it further criminalizes them.

In order to "elevate crimes against certain individuals," the law would have to suggest that killing certain individuals was somehow worse than killing other individuals. For instance, a law that made the penalty for killing a black guy worse than that for killing a white guy would be "elevating crimes against certain individuals."
Which is different than it is now or what you propose how?

Motives aren't knowable, so they shouldn't have that much weight.

and how is your campaign to get the concept of justifiable homicide abolished going?

and how is your campaign to get the concept of justifiable homicide abolished going?
Justifiable homicide isn't based on motives - it's based on actions. Usually the victim's.

No, it further criminalizes them.

Indeed.

Which is different than it is now or what you propose how?

That was explained in the rest of the post. Maybe you should have read it.

In short, it is different because it isn't the ethnicity/sex/etc. of the victim that matters. It is the reason that the crime was committed. Killing a black man, under hate crime legislation is no worse than killing a white man which is no worse than killing a Latino man and so on. Killing a person specifically because they belong to a specific ethnicity (any ethnicity), on the other hand, can receive a harsher sentence.

As I pointed out, if a criminal kills a white guy because he thinks the guy is Latino - and the motivation behind the crime is to harm Latinos, that is a hate crime. It doesn't matter that the victim wasn't actually Latino, because the issue being questioned isn't his ethnicity. It is the motivation behind the crime.

If a man is robbing a bank, and the teller he shoots happens to be black, sentencing will not be affected by hate crime legislation. If, on the other hand, a man runs into a bar frequented by members of the black community and shoots up the place, screaming, "You Goddamn N****RS!!!!", it probably will be. It isn't the ethnicity of the victim that this is based on, but the particulars of the crime committed.

Rather than have hate crime legislation as something that is a separate charge from the original charge, include it within the existing charge as an aggravating element. That makes sense to me, we already have other aggravating elements, why not just utilize this facet of the law?

Um. That is exactly how hate crime legislation is written.

oh ok, then i agree with it. i guess its never been explained to me the right way before.

If it simply had to do with premeditation, there would be no need for further sentencing guidelines. And yet, they are there.
Do you realise you just defined the law as infallible?
I wasn't talking about difference in degree. I was talking about differences in sentencing based on motive. Two people may commit premeditated murder. However, if one did so for monetary gain, and the other did so because their spouse was cheating on them, many laws would call for a difference in sentencing.
I would disagree with those laws. What I do matters. Why I do it does not.
No, it isn't pre-emptive. The crime has been committed. We are reacting to it.
So you're giving no heed at all to recidivism in sentencing? Didn't you just say otherwise?
That would be a problem. Hence the reason no one is arguing in favor of it.
You are if you're offering longer sentences for people at higher risk to re-offend.
You're right. Society shouldn't worry at all about why they choose the sentencing they do. I forgot that you are in favor of killing people for stealing bubble gum as long as you kill everyone who steals bubble gum.
You're reading the conditional backwards. I think that if you're killing some people for stealing bubble gum, you can improve that system by killing everyone who steals bubble gum.
And it is. Any potential offender who cares to look into the law will know what punishment can be incurred by the crime, and what mitigating circumstances might increase or decrease that punishment.
Circumstances that aren't knowable to the court. The court can't tell if I beat up this guy because I thought he was gay. As such, the court's perception of my motives isn't knowable to me (because the existence of these laws forces the court to reach a conclusion, but the court can't reasonably reach ANY conclusion, which makes all possible conclusions equally likely).
No more arbitrarily than assigning guilt in the first place. We can't know for certain that a given person committed a crime. We only know beyond a reasonable doubt. We can also examine a person's motives. We can't know them with absolute certainty, but we can look at all kinds of evidence for what they were.
Motives don't leave physical evidence. Actions do.

Do you realise you just defined the law as infallible?

No, I didn't. In fact, I did just the opposite. You are much closer to suggesting that the law is infallible when you suggest that every sentence for a crime should be the same, with no thought whatsoever given to mitigating circumstances.

The law is very, very fallible. It is made and enforced by human beings. That is a large part of the reason that the particulars of a crime must be taken into a great deal of account.

I would disagree with those laws. What I do matters. Why I do it does not.

In a world without, you know, actual human emotions - maybe.

So you're giving no heed at all to recidivism in sentencing? Didn't you just say otherwise?

Of course you consider recidivism in sentencing. But that is quite different from pre-emptive action. We are talking about crimes that have actually been committed. Recidivism is one variable which must be taken into account in deciding what to do about such crimes.

You are if you're offering longer sentences for people at higher risk to re-offend.

No, I'm not. Note the word re-offend. Notice how it means that a crime has already been committed. Thus, I am not arguing in favor of "imprisoning people you think will offend before they've done it even once."

You're reading the conditional backwards. I think that if you're killing some people for stealing bubble gum, you can improve that system by killing everyone who steals bubble gum.

Of course, the better thing to do would be to stop killing people for stealing bubble gum.

My point was what I've gotten from you in other discussions - which is your idea that the particular punishment doesn't matter. It doesn't matter if it fits the crime or, indeed, has anything at all to do with it. As long as we apply it and keep on applying it, it's all good.

Circumstances that aren't knowable to the court.

Nothing is completely knowable to the court. That is what evidence is for. In the end, it doesn't prove anything, but it does get close (hopefully).

The court can't tell if I beat up this guy because I thought he was gay.

Not with certainty. But, if you went into a gay bar and picked a fight with a guy you'd never met before, all the while flinging sexuality-related insults at him, it's pretty damn obvious. You can, of course, present other possible motives in your defense. If you did know him, you can claim he owed you money, or he let his dog shit on your lawn, or whatever.

As such, the court's perception of my motives isn't knowable to me (because the existence of these laws forces the court to reach a conclusion, but the court can't reasonably reach ANY conclusion, which makes all possible conclusions equally likely).

You're right. If it was well-known that a man was destitute. If, in fact, he was homeless and on the street, it's perfectly likely that he was killed because the killer wanted money. That is just as likely as any other motive.

Seriously, are you even trying to be logical?

Motives don't leave physical evidence. Actions do.

Actions don't always leave physical evidence - at least not physical evidence that can determine the particulars of a crime. Sometimes, we must rely heavily on witness accounts. And a person's motive can be made pretty obvious. If you've never met my husband, and I hire you to kill him, it's pretty damn obvious that your motivation was monetary gain. Sure, you might have been doing it because you thought I was hot or something. Of course, any person who we convict, no matter how much evidence we have might be innocent. If a man in a KKK uniform rushes into a bar frequented by black men, grabs a random guy he's never met before, and beats the hell out of him yelling racial insults, his motive is pretty clear.

Of course, just like with anything in the law, there are fuzzier issues. That's why we have judges, juries, and a standard to which such evidence must be held.

Justifiable homicide isn't based on motives - it's based on actions. Usually the victim's.

defense of self or others isn't a motivation?

in questionable cases where it is claimed some killing was justified, motive plays a huge role.

The punishment should be described precisely by the statute. The potential offender can then make his decision as to whether to offend based on what punishment he might face. If you then imprison him longer because you think he'll offend again, you've treated him unfairly.

So sentences should basically be a flat price for committing the crime? If a person is willing to go to prison for ten years to commit a murder, but not willing to go fifteen, he should be able to consider his options? What's next, publishing some sort of crime catalog? "For a limited time only, kill three people for the low low price of thirty years in prison!"

Dempublicants I dont buy this whole 'level of danger to society' business as justification or explanation for hate crime legislation. If person A kills someone for being a homosexual and person B kills someone because they like killing people, then person A is a danger to all homosexuals, where-as person B is a danger to all homosexuals and all non-homosexuals. Yet only person A's crime seems to fit the bill for extra punishment as a hate-crime. I dont see that person B's crime is any less reprehensible, any less unfair to the victim, nor any less indicative of the potential for future crimes against/harm towards society or its members than is person A's.

Dempublicants I dont buy this whole 'level of danger to society' business as justification or explanation for hate crime legislation. If person A kills someone for being a homosexual and person B kills someone because they like killing people, then person A is a danger to all homosexuals, where-as person B is a danger to all homosexuals and all non-homosexuals. Yet only person A's crime seems to fit the bill for extra punishment as a hate-crime. I dont see that person B's crime is any less reprehensible, any less unfair to the victim, nor any less indicative of the potential for future crimes against/harm towards society or its members than is person A's.

If you really show that B just likes killing, I'm almost certain his sentence will change in some manner, just not for hate crime.

I know this has been debated here before (and probably will again), hehe, but I haven't seen it in a while. The US House of Representatives is currently considering a bill that would include sexual orientation and gender identity under hate crimes legislation. I wrote to my rep about this and received, as part of his response, this paragraph:



I see this quite often in discussions. People mistakenly label hate crime legislation as "elevating crime against certain individuals." That is not the purpose or the result of such legislation. Instead, the point is to further criminalize certain intent. We already look at motive and intent in the prosecution of crimes. A person, for instance, who kills for money is most likely going to receive a much higher sentence than one who kills in a crime of passion. I believe that the reason for this (besides the fact that most of us can understand one more than the other) is that the person who will commit murder or assault another person for money is much more likely to do it again - to be a further danger to society - than someone who did so in the heat of passion in a particular situation. We aren't elevating certain victims here. We are representing the particular harm done by the person - and why it was done.

Likewise, the purpose of hate crime legislation is to look at the reason for the crime. A person who attacks or kills a black person, a white person, an Asian person, a man, a woman, a homosexual person, or a transgendered person because of their status as a member of that group is a danger to every person within that group. As such, they should receive a higher sentence. It should be made exceedingly clear that such crimes will not be permitted and the person who commits them should be taken off the streets, where they are a danger to others.

Wouldn't a hate crime be a crime of passion and not be elevated as far as a crime for monetary gain, at least by your logic?

Wouldn't a hate crime be a crime of passion and not be elevated as far as a crime for monetary gain, at least by your logic?

No, because a hate crime can be premeditated also. You can plan to do a driveby on the NAACP HQ.

If you really show that B just likes killing, I'm almost certain his sentence will change in some manner, just not for hate crime.
Which is my point entirely. The only aspects of A's crime that are aggravating apply equally to B so the law should make no distinction between the two. If the facts and the sentencing guidelines are such that the aggravating factors common to both cases will result in B being properly penalised, then they would result in A being properly penalised, hence an absence of any need for legislation that differentiates between the person A and person B's crime. Either person B's crime will be properly punished in which case person A's crime would also be dealt with adequately by the same provisions, or legislation falls short and enacting specific laws to fix this only in regard to 'hate crimes' isnt an adequate solution.

No, because a hate crime can be premeditated also. You can plan to do a driveby on the NAACP HQ.

He did not mention premeditation.

He mentioned that it hate crimes are on the basis of greater likelihood of recidivism or repeating the behavior, and the amount of danger posed to an entire group.

Since a person who kills for money is more likely to repeat than a hate crime offender, and since there are more people with money than possess minority characteristics, murder for monetary gain should have an extremely high elevation of punishment.

Which is my point entirely. The only aspects of A's crime that are aggravating apply equally to B so the law should make no distinction between the two. If the facts and the sentencing guidelines are such that the aggravating factors common to both cases will result in B being properly penalised, then they would result in A being properly penalised, hence an absence of any need for legislation that differentiates between the person A and person B's crime. Either person B's crime will be properly punished in which case person A's crime would also be dealt with adequately by the same provisions, or legislation falls short and enacting specific laws to fix this only in regard to 'hate crimes' isnt an adequate solution.

Sorry, I couldn't read that, it was sorta babbly.

As has been shown, motive, intent, or whatever; things such as this are and have been a part of sentencing. The intents of A and B are different, so their sentencings shall be different, for different reasons, and most likely independent of each other. I can't begin to comprehend your post or how it relates to this point. Seriously, read it out loud to yourself.

P.S. Furthermore, I cannot begin to fathom how it relates to my previous response, nor how my response is "exactly" your point.

Sorry, I couldn't read that, it was sorta babbly.

As has been shown, motive, intent, or whatever; things such as this are and have been a part of sentencing.
None of which (re: motive/intent) I disagree with. I dont see what is babbly about my last post. It's pretty simple really. If the current law will properly punish B despite B not qualifying as a hate crime then it would properly punish A without any need for specific hate crime legislation. If the law doesnt properly punish A without specific hate crime legislation then even with the hate crime legislation B isnt going to be properly punished. I fail to see what is complicated or incomprehensible about that.

The intents of A and B are different, so their sentencings shall be different, for different reasons, and most likely independent of each other.
The intent of a person that robs a store to buy booze is different from the intent of a person who robs a store to buy pornography, but it's not different in any way that is materially relevent at law. All other things being equal their sentencing will be the same for the same reasons and would be no more or less independent of each other than if they'd both robbed the store to get both booze and pornography.

I can't begin to comprehend your post or how it relates to this point. Seriously, read it out loud to yourself.
Your lack of reading and comprehension skills is not my responsiblity.

P.S. Furthermore, I cannot begin to fathom how it relates to my previous response, nor how my response is "exactly" your point.
As above.

The intent of a person that robs a store to buy booze is different from the intent of a person who robs a store to buy pornography, but it's not different in any way that is materially relevent at law. All other things being equal their sentencing will be the same for the same reasons and would be no more or less independent of each other than if they'd both robbed the store to get both booze and pornography.

Well, sure, if A and B are just robbing a store now, we're in a different situation from the one you originally posted. Yanno, with the killing?

....Unless Booze is supposed to be a parallel to killing homosexuals?

I love how those opposed to hate-crime legislation are reduced to the absurd position that intent and motive are irrelevant to sentencing -- despite the fact that intent and motive have been relevant to sentencing so long as there has been sentencing.

Well, sure, if A and B are just robbing a store now, we're in a different situation from the one you originally posted. Yanno, with the killing?
It's called an analogy, of course the detail isnt identical, it wouldnt be an analogy otherwise.:rolleyes:

....Unless Booze is supposed to be a parallel to killing homosexuals?
Lame dodge, very lame.

The concept being explicated by the analogy is that of 'material relevence'. In any criminal case there will differences in detail but only some of those differences are materially relevent to the court's view and subsequent actions in regards to a particular case.

The ultimate point illustrated by the analogy is that it's not true that the courts consider every detail of a fact case during sentencing for a crime and differentiate between crimes accordingly, and this applies to intent and motivation as much as to every other element the courts consider in reaching their decisions.

I agree with your rep.

So do I. I don't care for hate crimes laws.

HOWEVER, I DO believe that IF hate crime laws exist, crimes targeting sexual orientations etc. belong on the list.

I believe that a hateful motive, regardless of the target of that hate should be enough to guarantee a maximum possible sentence.

But the people whose poorly disguised homophobia leads them to believe that homosexuals don't deserve the same protections under the laws as is afforded to women, or religious groups annoy me. They make me want to release the attack weasels. *nod*

I love how those opposed to hate-crime legislation are reduced to the absurd position that intent and motive are irrelevant to sentencing -- despite the fact that intent and motive have been relevant to sentencing so long as there has been sentencing.
I love how some of those who support hate crime legislation are reduced to vague generalised and inaccurate rants about those who dont happen to have the same position as them.:rolleyes:

It's called an analogy, of course the detail isnt identical, it wouldnt be an analogy otherwise.:rolleyes:

Well, we already had a perfectly good example.

The concept being explicated by the analogy is that of 'material relevence'. In any criminal case there will differences in detail but only some of those differences are materially relevent to the court's view and subsequent actions in regards to a particular case.

The ultimate point illustrated by the analogy is that it's not true that the courts consider every detail of a fact case during sentencing for a crime and differentiate between crimes accordingly, and this applies to intent and motivation as much to every other element the courts consider in reaching their decisions.


All very interesting. But you've yet to make a point with it. Or at least, not very clearly.

P.S. Now see here...I remember A and B. A hated Homosexuals. He'd probably have his sentence adjusted according to hate crime, along with other factors. And B just liked killing. I'm almost certain that, should B's state of mind be demonstrated, his sentence would adjusted according to various factors, but probably not hate crime.

I don't see where a dilemma arises.

I love how some of those who support hate crime legislation are reduced to vague generalised and inaccurate rants about those who dont happen to have the same position as them.:rolleyes:

Oh come now, surely you have at least a modicum of originality to use for your snarky comments. :p

Well, we already had a perfectly good example.
I have no idea why you fail so spectacularly to keep track of a rather simple exchange. The analogy illustrated a specific point, one you failed to comprehend from the earlier example. Your response to the earlier example was to simply state that intent and motivation can be considered during sentencing. The point of the robbery analogy is that not every detail of intent and motivation are or ought to be considered in sentencing. The fact that we consider material gain as a motivation doesnt mean we ought the additional detail that the gain in question was money to buy booze as opposed to money to buy pornography.

In terms of the example of murderers A and B, there is nothing in their individual motivations that justifies hate crime legislation in terms of the factors suggested by Dempublicants. In fact Dempublicant's contention that hate crimes punish more harshly those that present the greatest danger to society is directly contradicted by the example I originally gave because hate crime legislation would only give additional punishment to the person who presented a danger to the lesser number of people.


All very interesting. But you've yet to make a point with it. Or at least, not very clearly.
It's not my fault you fail to comprehend a rather simple point.

P.S. Now see here...I remember A and B. A hated Homosexuals. He'd probably have his sentence adjusted according to hate crime, along with other factors. And B just liked killing. I'm almost certain that, should B's state of mind be demonstrated, his sentence would adjusted according to various factors, but probably not hate crime.
If demonstrating B's state of mind would result in B being punished appropriately even though hate crime legislation cannot be applied to B, then that means we dont need hate crime legislation to appropriately punish people according to their state of mind at the time they committed their crime. Either the law addresses such issues independently of hate crime legislation, therefore hate crime legislation is not needed, or the law fails to appropriately deal with every case where for all materially relevent purposes there is no distinction from a hate crime other than whether or not hate crime legislation is applicable.

I cannot see a single aggravating element that the courts ought to consider during sentencing and distinguish on the basis of, that is present in case A but absent in case B, and the whole point of hate crime legislation is that it requires a judge to make such a distinction and to pile on extra punishment accordingly. I dont see why person B ought to have any less of the law's weight thrown against them than person A, but that is exactly what is required by hate crime legislation.

I love how those opposed to hate-crime legislation are reduced to the absurd position that intent and motive are irrelevant to sentencing -- despite the fact that intent and motive have been relevant to sentencing so long as there has been sentencing.

well, do they have many other options open to them?

In terms of the example of murderers A and B, there is nothing in their individual motivations that justifies hate crime legislation in terms of the factors suggested by Dempublicants. In fact Dempublicant's contention that hate crimes punish more harshly those that present the greatest danger to society is directly contradicted by the example I originally gave because hate crime legislation would only give additional punishment to the person who presented a danger to the lesser number of people.

Presumably, the legislation 'punishes more harshly those that present the greatest danger to society' due to hate. I wouldn't expect hate crime legislation to cover psychosis.

So yes, if hate crime legislation was the only kind out there, I can see how you might consider that a point,

That was explained in the rest of the post. Maybe you should have read it.

In short, it is different because it isn't the ethnicity/sex/etc. of the victim that matters. It is the reason that the crime was committed. Killing a black man, under hate crime legislation is no worse than killing a white man which is no worse than killing a Latino man and so on. Killing a person specifically because they belong to a specific ethnicity (any ethnicity), on the other hand, can receive a harsher sentence.

As I pointed out, if a criminal kills a white guy because he thinks the guy is Latino - and the motivation behind the crime is to harm Latinos, that is a hate crime. It doesn't matter that the victim wasn't actually Latino, because the issue being questioned isn't his ethnicity. It is the motivation behind the crime.

If a man is robbing a bank, and the teller he shoots happens to be black, sentencing will not be affected by hate crime legislation. If, on the other hand, a man runs into a bar frequented by members of the black community and shoots up the place, screaming, "You Goddamn N****RS!!!!", it probably will be. It isn't the ethnicity of the victim that this is based on, but the particulars of the crime committed.
Then there is effectively no difference. Intent is proven by the gullibility and willingness of a jury to accept the shit the prosecutor is feeding them.

Presumably, the legislation 'punishes more harshly those that present the greatest danger to society' due to hate. I wouldn't expect hate crime legislation to cover psychosis.

So yes, if hate crime legislation was the only kind out there, I can see how you might consider that a point,

what if someone just hates people? you don't have to be psychotic to hate people in general.

what if someone just hates people? you don't have to be psychotic to hate people in general.

If someone just hates people, I don't know how that would be handled. I'm not really a lawyer, you see. Chances are there'd be psychiatric evaluations. *shrug* It could have an effect on how you are sentenced, ask a judge. If it would fall under hate crime legislation? I don't think so, no more than killing a particular person I hate would. That is to say, it's not just "hating the person you harmed". Again, I wouldn't know.

If someone just hates people, I don't know how that would be handled. I'm not really a lawyer, you see. Chances are there'd be psychiatric evaluations. *shrug* It could have an effect on how you are sentenced, ask a judge. If it would fall under hate crime legislation? I don't think so, no more than killing a particular person I hate would. That is to say, it's not just "hating the person you harmed"

so what's the deal then? if it's not 'hating the person you harmed'

so what's the deal then? if it's not 'hating the person you harmed'

Didn't Cat Tribes have a lengthy post containing some of the specific legislation? I'm sure he did. Don't ask me, I ain't been to no law school.

Presumably, the legislation 'punishes more harshly those that present the greatest danger to society' due to hate.
Such a presumption proves my point. The contention I was addressing is that the legislation at issue addresses the level of harm or the level of danger of harm. If in fact it merely punishes for what a person thinks in relation to the harm they present rather than the level, extent and likliehood of harm itself, then we're back to thought-crime territory.


I wouldn't expect hate crime legislation to cover psychosis.
The distinction your draw is not valid. Person A's hatred of homosexuals isnt necessarily any more or any less a manifestation of psychosis than person B's love of murdering people.

So yes, if hate crime legislation was the only kind out there, I can see how you might consider that a point,
I've got a point if other legislation already appropriately deals with the danger/harm purportedly addressed by hate crime legislation. I've got a point if hate crime legislation is necessary to deal appropriately with any crime whatsoever. Either way I have a point. We either have an unnecessary class of legislation that punishes based on thought and/or social trends/kneejerkiness (rather than on harm, liklihood of harm occuring, intent to cause harm or lack of consideration for harm caused), or we dont have the necessarily legislation to deal with the issues hate crime legislation is supposed to deal with.

Again the simple point is that either without hate crime legislation the tools used to adequately punish person B would adequately punish person A (therefore there is no need for hate crime legislation) or person B whom hate crime legislation doesnt apply to is not being punished appropriately and hate crime legislation is a distraction from the need to find a proper solution for a very real problem.

I love how those opposed to hate-crime legislation are reduced to the absurd position that intent and motive are irrelevant to sentencing -- despite the fact that intent and motive have been relevant to sentencing so long as there has been sentencing.

I love people who equate "it has always been this way" with "it should be this way".

Dempublicants I dont buy this whole 'level of danger to society' business as justification or explanation for hate crime legislation. If person A kills someone for being a homosexual and person B kills someone because they like killing people, then person A is a danger to all homosexuals, where-as person B is a danger to all homosexuals and all non-homosexuals. Yet only person A's crime seems to fit the bill for extra punishment as a hate-crime. I dont see that person B's crime is any less reprehensible, any less unfair to the victim, nor any less indicative of the potential for future crimes against/harm towards society or its members than is person A's.

If person B is shown, in court, to have a taste for killing people, I think we can be pretty certain that his sentence will reflect that fact. Hate crime status is hardly the only mitigating factor that might affect sentencing.

defense of self or others isn't a motivation?
It's not the first cause. The other attacker is the first cause. Without him there's no cause for defense.

In terms of the example of murderers A and B, there is nothing in their individual motivations that justifies hate crime legislation in terms of the factors suggested by Dempublicants. In fact Dempublicant's contention that hate crimes punish more harshly those that present the greatest danger to society is directly contradicted by the example I originally gave because hate crime legislation would only give additional punishment to the person who presented a danger to the lesser number of people.

You aren't being at all logical here. Your basic objection is, "ZOMG! HATE CRIME LEGISLATION DOESN'T COVER EVERYTHING!"

Well, that is obvious. It covers a specific subset of crimes. The laws that increase sentences when a crime is carried out for monetary gain don't cover hate crimes. They only cover the issue of carrying out crimes for monetary gain. Does that mean we should get rid of them?

Guess what, aspirin doesn't kill of bacteria. It treats pain. Antibiotics, on the other hand, kill bacteria, but generally don't treat pain. If we moved your objection into the world of medicine, you'd be saying, "Pain can be worse than bacterial infection, so antibiotics are bad because they don't treat pain!"

It's not my fault you fail to comprehend a rather simple point.

If demonstrating B's state of mind would result in B being punished appropriately even though hate crime legislation cannot be applied to B, then that means we dont need hate crime legislation to appropriately punish people according to their state of mind at the time they committed their crime.

We need legislation to establish the criteria under which "state of mind" will be evaluated.

I cannot see a single aggravating element that the courts ought to consider during sentencing and distinguish on the basis of, that is present in case A but absent in case B, and the whole point of hate crime legislation is that it requires a judge to make such a distinction and to pile on extra punishment accordingly. I dont see why person B ought to have any less of the law's weight thrown against them than person A, but that is exactly what is required by hate crime legislation.

Um...no. Once again, you are being entirely illogical. You fail to see that there are other sentencing guidelines that would apply. Hate crime legislation wouldn't affect the sentencing of a person who didn't commit a hate crime at all. There are other guidelines for that.

Once again, this is like saying. "Either one medicine treats it all, or taking antibiotics means that pain isn't important at all."

So, just so I'm clear on this, it's more acceptable, and less severely punished, to murder indiscriminately than discriminately?

Then there is effectively no difference.

If that were true, every crime would be prosecuted as a hate crime in those states with hate crime legislation. And yet, most crimes are not prosecuted as such. This is because you need actual evidence that the motivation behind the crime was ethnicity/gender/etc.

Intent is proven by the gullibility and willingness of a jury to accept the shit the prosecutor is feeding them.

If that's how you look at it, so is guilt.

Again the simple point is that either without hate crime legislation the tools used to adequately punish person B would adequately punish person A (therefore there is no need for hate crime legislation) or person B whom hate crime legislation doesnt apply to is not being punished appropriately and hate crime legislation is a distraction from the need to find a proper solution for a very real problem.

You talk funny; sorta roundabout, yanno? Let's focus on what you conviniently labeled as the simple part.

I imagine that B is being punished appropriately. Just not for hate crime. Hate crime legislation would not distract judges from sentencing person B. Hmm, and this other bit here...Why "the tools used to adequately punish person B would adequately punish person A"? How does that become one of the options in the either-or? I don't see why you'd reach that conclusion. Different situations may call for different legislation, different 'tools' if you will. I personally am fond of screwdrivers, but hammers have their merits.

You talk funny; sorta roundabout, yanno? Let's focus on what you conviniently labeled as the simple part.

I imagine that B is being punished appropriately. Just not for hate crime. Hate crime legislation would not distract judges from sentencing person B. Hmm, and this other bit here...Why "the tools used to adequately punish person B would adequately punish person A"? How does that become one of the options in the either-or? I don't see why you'd reach that conclusion. Different situations may call for different legislation, different 'tools' if you will. I personally am fond of screwdrivers, but hammers have their merits.

Precisely. There is no "one-size-fits-all" solution or legislation for all crimes, because every crime will be different. That's why we don't just have absolute set punishments for a given crime. We have a range of possible punishments, with aggravating factors that might reduce or increase those punishments. Hate crime status is one of those possible aggravating factors.

It's less punished by hate crime legislation. Work with me here. This legislation works in specific cases to affect sentencing. Other cases will likely have different legislation with different domains and having different effects.

That's ridiculous. Why can one criminal beat a man up on the streets and receive a different sentence to another simply due to their motivations? A crime remains the same, irrespective of the target.

So, just so I'm clear on this, it's more acceptable, and less severely punished, to murder indiscriminately than discriminately?

It's less punished by hate crime legislation. Work with me here. This legislation works in specific cases to affect sentencing. Other cases will likely have different legislation with different domains and having different effects.

No, I didn't.
Yes you did. You justified sentencing guidelines on the basis of their existence. They exist, therefore they are necessary - that reasoning presupposes infallibility.
The law is very, very fallible. It is made and enforced by human beings. That is a large part of the reason that the particulars of a crime must be taken into a great deal of account.
It's presently fallible mostly because humans try to take emotions and principles and motives into account. They should stop.
In a world without, you know, actual human emotions - maybe.
Since the court can't know the relevant emotions, it should ignore them.
Of course you consider recidivism in sentencing. But that is quite different from pre-emptive action. We are talking about crimes that have actually been committed. Recidivism is one variable which must be taken into account in deciding what to do about such crimes.

No, I'm not. Note the word re-offend. Notice how it means that a crime has already been committed. Thus, I am not arguing in favor of "imprisoning people you think will offend before they've done it even once."
If you have two criminals who commited the same crime, and you deem one of them a much higher risk to re-offend, you want to keep that one in prison longer. So Bill serves a term of A years, and Steve serves a term of A+B years. What you've just done is assigned a penalty of A years for this crime, but you're handing Steve the further punishment of B years for the crime he hasn't committed yet.

They can't just be different terms - that violates fairness.
Of course, the better thing to do would be to stop killing people for stealing bubble gum.
I would agree with that. But whatever the punishment is, it needs to be enforced constistently.
My point was what I've gotten from you in other discussions - which is your idea that the particular punishment doesn't matter. It doesn't matter if it fits the crime or, indeed, has anything at all to do with it. As long as we apply it and keep on applying it, it's all good.
Yes, you do tend to jump to conclusions like that.

We were specifically discussing fairness in sentencing. What the punishment is doesn't affect how fair it is - all that fairness cares about is consistency. But since you seem to equate every positive word (like fairness) with every other positive word (justice, good, right), you can't seem to deal with just one at a time.
Not with certainty. But, if you went into a gay bar and picked a fight with a guy you'd never met before, all the while flinging sexuality-related insults at him, it's pretty damn obvious. You can, of course, present other possible motives in your defense. If you did know him, you can claim he owed you money, or he let his dog shit on your lawn, or whatever.
And then the court has to decide what my motives were, when it obviously has no clue at all.
You're right. If it was well-known that a man was destitute. If, in fact, he was homeless and on the street, it's perfectly likely that he was killed because the killer wanted money. That is just as likely as any other motive.
Using your reasoning, yes it is.
If a man in a KKK uniform rushes into a bar frequented by black men, grabs a random guy he's never met before, and beats the hell out of him yelling racial insults, his motive is pretty clear.
But irrelevant.

So, just so I'm clear on this, it's more acceptable, and less severely punished, to murder indiscriminately than discriminately?

No. But it is less acceptable, and more severely punished, to attack someone simply because of their status as a member of a specific group (suggesting that all members of that group are in danger), rather than because of a specific bone you have with one person.

In other words, a person who went out looking to attack an Asian man - any Asian man - because he was Asian will receive a harsher sentence than a person who goes out looking for the man (who happens to be Asian) who slept with his wife. Under other laws, a man who kills a man who happens to be Asian because someone is paying him to do it would almost certainly get a harsher sentence than the latter - probably a harsher sentence than either of them.

It's a matter of degree, and there are other sentencing guidelines that could possibly affect a given crime (or possibly use the insanity plea).

Someone who goes out just looking to kill - indiscriminately - is most likely going to get the harshest possible sentence.

I agree with your rep.

Me too. Good point they made.

Since the court can't know the relevant emotions, it should ignore them.
Know? What's know? How does the court know anything, in your sense of the word?

I know this has been debated here before (and probably will again), hehe, but I haven't seen it in a while. The US House of Representatives is currently considering a bill that would include sexual orientation and gender identity under hate crimes legislation. I wrote to my rep about this and received, as part of his response, this paragraph:



I see this quite often in discussions. People mistakenly label hate crime legislation as "elevating crime against certain individuals." That is not the purpose or the result of such legislation. Instead, the point is to further criminalize certain intent. We already look at motive and intent in the prosecution of crimes. A person, for instance, who kills for money is most likely going to receive a much higher sentence than one who kills in a crime of passion. I believe that the reason for this (besides the fact that most of us can understand one more than the other) is that the person who will commit murder or assault another person for money is much more likely to do it again - to be a further danger to society - than someone who did so in the heat of passion in a particular situation. We aren't elevating certain victims here. We are representing the particular harm done by the person - and why it was done.

Likewise, the purpose of hate crime legislation is to look at the reason for the crime. A person who attacks or kills a black person, a white person, an Asian person, a man, a woman, a homosexual person, or a transgendered person because of their status as a member of that group is a danger to every person within that group. As such, they should receive a higher sentence. It should be made exceedingly clear that such crimes will not be permitted and the person who commits them should be taken off the streets, where they are a danger to others.
An argument I've found interesting is the idea that hate crimes aren't just about targeting the particular victim, they are about instilling fear in an entire group. The victim is harmed, to be sure, but with the intention of terrorizing an entire group as well.

So sentences should basically be a flat price for committing the crime? If a person is willing to go to prison for ten years to commit a murder, but not willing to go fifteen, he should be able to consider his options?
Yes! Absolutely!

Finally someone understands my position.

That's ridiculous. Why can one criminal beat a man up on the streets and receive a different sentence to another simply due to their motivations? A crime remains the same, irrespective of the target.

A crime does remain the same, regardless of the target. But the criminal intent, and thus the crime, is different based on the motivation.


Yes you did. You justified sentencing guidelines on the basis of their existence. They exist, therefore they are necessary - that reasoning presupposes infallibility.

I think you're living in a fantasy world, my dear.

It's presently fallible mostly because humans try to take emotions and principles and motives into account. They should stop.

Failing to take these things into account is failing to take the specifics of a crime into account. It would be like a doctor failing to look at all the symptoms of an illness before diagnosing it and prescribing a medication.

Since the court can't know the relevant emotions, it should ignore them.

Human beings are not robots, no matter how much you try to be one.

If you have two criminals who commited the same crime, and you deem one of them a much higher risk to re-offend, you want to keep that one in prison longer. So Bill serves a term of A years, and Steve serves a term of A+B years. What you've just done is assigned a penalty of A years for this crime, but you're handing Steve the further punishment of B years for the crime he hasn't committed yet.

Not for the crime he hasn't committed yet. For the time needed to ensure that he won't commit it again. Part of the purpose of the justice system is to prevent further crime, not simply to punish crime that has occurred.

They can't just be different terms - that violates fairness.

You have a strange definition of fair if you think different situations should be treated the same.

Yes, you do tend to jump to conclusions like that.

You have pretty much point-blank stated exactly that.

We were specifically discussing fairness in sentencing. What the punishment is doesn't affect how fair it is - all that fairness cares about is consistency. But since you seem to equate every positive word (like fairness) with every other positive word (justice, good, right), you can't seem to deal with just one at a time.

Fairness does not simply deal with consistency. In fact "consistency" in the way that you use it, has little at all to do with fairness. Fairness, in this context has to do both the with the merits of the crime (the punishment must be appropriate to it) and with the impartiality with which the rules are applied.

You seem to think "fair" would be to treat two very different crimes the same way because the crime happens to fall under the same heading in the law.

And then the court has to decide what my motives were, when it obviously has no clue at all.

Both sides present evidence. The court can either decide what the motives were, or fail to do so. Note that, if a court did not use hate crime legislation in a given sentence, that would not mean that the motivation did not warrant it. It would simply mean that the prosecution had not adequately displayed to the court that such motivation was present.

The court only has to determine what the motivation was if that is to be used as a mitigating factor in sentencing. If it is unable to make a determination, then motivation cannot be used.

Using your reasoning, yes it is.

No, my dear, that's using your reasoning. You really should try to follow the conversation. I have been arguing the exact opposite of that.

But irrelevant.

Not at all.

I love how those opposed to hate-crime legislation are reduced to the absurd position that intent and motive are irrelevant to sentencing -- despite the fact that intent and motive have been relevant to sentencing so long as there has been sentencing.

Oh, but I thought it was perfectly clear that an actual knowledge, even a basic knowledge, of the law was in no was a prerequisite to discussing the topic. I mean...it's not like you'd be expected to have a basic understanding of physics before discussing electrical engineering. Who cares what you don't know? Any idiot can understand the law as well as a lawyer...it's INTUITIVE. Uneducated opinions on the matter should be afforded the highest respect.

Know? What's know? How does the court know anything, in your sense of the word?

I wouldn't bother...Llewdor devoted a huge thread to how he wants the law to be decided on by robots.

I wouldn't bother...Llewdor devoted a huge thread to how he wants the law to be decided on by robots.

I dunno, I've little better to do...I mean, technically you can't 'know' the defendant even exists, but that's obviously not what he means by 'know', right?

Oh, but I thought it was perfectly clear that an actual knowledge, even a basic knowledge, of the law was in no was a prerequisite to discussing the topic. I mean...it's not like you'd be expected to have a basic understanding of physics before discussing electrical engineering. Who cares what you don't know? Any idiot can understand the law as well as a lawyer...it's INTUITIVE. Uneducated opinions on the matter should be afforded the highest respect.

I think this calls for a repost of something I said a while ago. It was addressed to bottle, a biologist, when discussing how often people come up with legal "theories" and how much weight they should be given.

I admit my ignorance in a lot of areas. I am QUITE sure you know a HELL of a lot more about biology than I do.

Theoretically you could make a mistake in biology, one I could catch, and I can correct you. It's doubtful that I would, but sure, it can happen.

Likewise, if you can prove me wrong about a statement I make about law, more power to you. IF you can. I rarely make mistakes in this area because, well...it's my job.

The difference being is, if I were to square away against you on a biological matter, I am going to make DAMN sure I know EXACTLY what i am talking about, because I fully expect you are completely capable of schooling me up and down on the subject.

I may catch your error, I may correct you, but I'm not going to presume that because you, as an expert, occasionally may make a mistake that in any way makes us equals on the subject.

Likewise, agreed, law is about interpretation, and yes, interpretations may vary, but even HERE we have a problem. Let's say you observe data from an experiment, and you are called to evaluate that data, and interpret it. Likewise I, a complete amateur, look at the very same data, the very same evidence, and interpret it.

Would you consider my interpretation as valid as yours? Would you consider me, an amateur, capable of looking at experimental data and interpreting that data in a fashion consistant with biological science when I have perhaps only the barest passing familiarity in the subject?

Yeah, I can TRY to, and I can form an interpretation of it. And maybe if I'm lucky my interpretation might actually be somewhat valid. But you, as a scientist, a trained individual, do you think I could, as a complete amateur in the field, be able to look at scientific data and interpret it in any truly meaningful way? And if I am wrong, if my interpretation is WILDLY off base, would you even bother to sit me down and explain why, or would you just shake your head at my arrogance thinking I could form an interpretation about data in a field i know nothing about?

Same problem. Sure people can interpret the law. But how in hell are you GOING to interpret a law when you lack the fundamental educational tools to properly do so? One with no true familiarity in the law, the legal system, how it works, the methodology, the language, the meaning, the theory, can that person truly expect to form a reasonable interpretation, any more than I can expect to form a reasonable interpretation about the data of an experiment in a field I know nothing about?

THAT is the arrogance I mean, THAT is the insult. If you, a trained scientist, and I, a total layman, interpret the same data differently, are our interpretations equally valid? Both have the same chance of being right? Both deserving of the same wieght.

Do you believe that I could form an interpretation of data in YOUR field even REMOTELY as accurate as you can? Is my interpretation worth anything? Is it most of the time even worth considering?

NOw sure, I COULD be wrong, and they COULD be right, but again, ask yourself this, do you think you and I, looking at the same data from an experiment, could typically reach equally valid interpretations?

If not, why should a layman's interpretation on the law be considered equally as valid as a lawyer's?

And if so, if an amateur can look at the same data and interpret that data and have that interpretation viewed as valid as your own, with your years of experience, why even bother to get the degree?

Would you ever even seriously entertain my interpretation of your data? Would you not find me incredibly arrogant to presume I could interpret it as well as you can? Would you not place the burden on me to demonstrate its validity?

But sure, if i look at that data, and come up with an interpretation, and can SHOW YOU how I reached it, how it's grounded, and can back myself up, then sure, you should concede the point as valid. I may be an amateur, but I COULD do it. The presumption would be against me, but it's possible.

Now, how often would that REALLY happen that I, as a complete amateur, could actually form a reasonable interpretation?

Which is fundamentally the point, IF someone can look at an area of the law and come up with an interpretation that, while differing from mine, is grounded in the law, demonstrates an understanding of the complexities and the nuances of the law, is properly researched, properly contextualized, and lays out a clear legal framework for that interpretation, FINE. OK, you CAN disagree with me. You ARE allowed to have interpretations on the law that vary from my own.

But IF you are going to try, do your research. Make SURE you have done your homework, make sure you understand the nuances and complexities of the arguments, make sure your research is valid, make sure you have build a solid legal framework. You know, do the things they teach you how to do in law school.

Sure, you MIGHT be able to do it, it'll be hard as hell and you would have had to do so much independant research to be considered practically a lawyer yourself, just as to interpret your experiement I probably would have had to do so much research that I am for most purposes a biologist.

But it's POSSIBLE.

You know how damned RARE that is? You know just how damned rare it is that someone gives me their interpretation of the law that's properly supported, properly thought out, properly built on legal framework?

90% of the time I get a wiki link discussing a damned concurance. Most of the time I'm getting argument from people who not even don't even know the right arguments, they can't even use the right bloody terminology. Would you even consider it a valid opinion if instead of adequatly identifying every part of the experiment, I refer to some cell or bacteria as "that thingy there"?

If you can give me a real solid legal argument, without a law background, I'll respect the hell out of you.

But if you give me some half assed uninformed dung heap without a shred of legal sophistication and try to pass that off as an equally valid differing opinion, you are insulting me by the implication that your utter crap for legal analysis is comparable to my own.

Just as I would be insulting you if I tried to claim my completely amateurish interpretation of an experiment, containing errors that you wouln't have made for 10 years as differing, but equally valid, as your own.

Sure, give me a REAL legal argument. You will have my respect. But I almost NEVER get it, I get unsophisticated, uninspired legal drivel, and what's worse I get it from people who think they're giving me legal gold.

If you can give me a real solid legal argument, without a law background, I'll respect the hell out of you.

But if you give me some half assed uninformed dung heap without a shred of legal sophistication and try to pass that off as an equally valid differing opinion, you are insulting me by the implication that your utter crap for legal analysis is comparable to my own.

Just as I would be insulting you if I tried to claim my completely amateurish interpretation of an experiment, containing errors that you wouln't have made for 10 years as differing, but equally valid, as your own.

Sure, give me a REAL legal argument. You will have my respect. But I almost NEVER get it, I get unsophisticated, uninspired legal drivel, and what's worse I get it from people who think they're giving me legal gold.
And Bottle, the biologist to whom the original post was directed, concurs entirely.

Indeed, this is PRECISELY why Creationists get under my skin. They want their bullshit made-up stories to be given "equal consideration" in science classes, along side the real theories and valid models generated from countless years of hard work by real scientists. They want their con-man snake-oil salesmen "experts" to be regarded as equals to real researchers and scientists, even though most of those jackasses couldn't even be bothered to get BACHELORS degrees in the fields that they presume to spout off about.

I can empathize 100% with the frustration that lawyers must feel when they read some of the threads around here, and when they are confronted with laypeople who are so goddam sure that they can interpret the law better than people who have taken the time to actually train in it.

*snip*

Makes sense to me. I would add one caveat. When discussing the law as it is, one should most likely defer to an expert in that area (unless one is damn sure they are wrong and can demonstrate how they are wrong.)

However, when discussing the law as it should be, you run into a different situation. Anyone can argue that the law should or should not take certain things into account. That type of argument really falls more under philosophy than under legal discussion. At least, that's what I think. =)

That, and the fact that I am not an expert in an area isn't going to keep me out of a discussion. I'll just be careful to preface things with "As I understand it..." and so on. =)

Makes sense to me. I would add one caveat. When discussing the law as it is, one should most likely defer to an expert in that area (unless one is damn sure they are wrong and can demonstrate how they are wrong.)

However, when discussing the law as it should be, you run into a different situation. Anyone can argue that the law should or should not take certain things into account. That type of argument really falls more under philosophy than under legal discussion. At least, that's what I think. =)

That, and the fact that I am not an expert in an area isn't going to keep me out of a discussion. I'll just be careful to preface things with "As I understand it..." and so on. =)
Absolutely. "Should" statements are open to everybody, since "should" is subjective no matter who is talking.

I certainly don't want to chase people out of discussions around here, and I absolutely do NOT want to imply that I think only the 'experts' should be allowed to share opinions on any given topic. I simply believe in showing a little damn respect for people who have taken the time to become experts in a given field. You don't have to bow down before them, and they certainly are still human and still capable of making mistakes, but you show respect by making your criticisms or arguments appropriate to their level of expertise.

In other words, if a lawyer tells you, "This is how the law works," you don't get to respond with, "Nuh uh, that's not what Wiki sez!!!"

Makes sense to me. I would add one caveat. When discussing the law as it is, one should most likely defer to an expert in that area (unless one is damn sure they are wrong and can demonstrate how they are wrong.)

However, when discussing the law as it should be, you run into a different situation. Anyone can argue that the law should or should not take certain things into account. That type of argument really falls more under philosophy than under legal discussion. At least, that's what I think. =)


Well...yes and no. Sure anyone is entitled to their opinion on how things should be, but in the end any discussion about why something should be some different way is fundamentally a discussion as to why that way is better than the way we have.

After all, someone who argues that the law should be different fundamnetally thinks his ideal system of law is better than the one we have now.

And if you're going to do that, it helps to have an understanding of why the system is the way it is. It is very helpful to have a background in legal theory, to understand the framework and the foundation of the system as it is, before talking about how it should be.

Sure I might have the opinion that my apartment building was designed badly, and that's fine, it's my opinion of how the building should be. I might, knowing NOTHING about construction, think that the walls should, instead of being brick, should instead be made out of straw. This is my opinion.

However, knowing nothing about construction, I likewise do not know that straw is simply not a viable option for building construction. And yes, I, as an amateur, might think straw would be better than brick, and can discuss why I believe it's prettier, smells nice, and would provide a nice snack for whatever horses happen to wander by.

However, someone with a background in construction would probably easily point out that straw walls tend not to hold up to well in the rather humid boston spring, and no matter how much I think it should be that way, it simply doesn't work.

I can empathize 100% with the frustration that lawyers must feel when they read some of the threads around here, and when they are confronted with laypeople who are so goddam sure that they can interpret the law better than people who have taken the time to actually train in it.

See, this is the thing. I don't expected to be viewed as a god on high because I know what per curiam means. What I WOULD like is the same thing I give every other professional, the simple recognition that the expert likely knows more than the layman.

Now, again, of course I make mistakes from time to time. And if you think I've made one, point it out to me. But do it in a form befiting the subject. Give me a case. And I don't just mean give me the first case that pops up when you google it.

Half the time those cases are either:

1) already overturned
2) deal with law in another jurisdiction
3) don't actually say what the person thinks it does

What gets me, what really gets under my skin, is that law is not my hobby. It's not my passtime. It's not a thing I discuss when I'm bored.

It is my job. It is my livelihood. It is what puts clothes on my back and food on my table. I don't mind if people want to try and argue that they know more than me, or understand it better than me.

When they argue with my analysis they question my ability to do my job. And when you question one's ability to do his job, you better make damn sure, DAMN sure that you're right.

Well...yes and no. Sure anyone is entitled to their opinion on how things should be, but in the end any discussion about why something should be some different way is fundamentally a discussion as to why that way is better than the way we have.

After all, someone who argues that the law should be different fundamnetally thinks his ideal system of law is better than the one we have now.

And if you're going to do that, it helps to have an understanding of why the system is the way it is. It is very helpful to have a background in legal theory, to understand the framework and the foundation of the system as it is, before talking about how it should be.

That's exactly it...how can you properly criticise something you don't understand? Half of the time, the complaints people have about the system are actually dealt with more than adequately by the system. The complaint is then moot. At other times, not understanding how things like 'intent' ALREADY impacts the law makes the argument that it shouldn't 'because bad things would happen' just...foolish.

Having to explain why a point is moot or foolish, is time-consuming. It should also be unecessary. Would you ask an electrician to explain to you in detail why you can't do 'x'...and then declare, if said electrician is unwilling to do so that his or her unwillingnes means 'I win!'?

Well...yeah....people probably would.
But they are deserving of derision for it.

In other words, if a lawyer tells you, "This is how the law works," you don't get to respond with, "Nuh uh, that's not what Wiki sez!!!"
A better response would be, "But that's dumb. That will lead to these weird consequences (enumerated list)."

A better response would be, "But that's dumb. That will lead to these weird consequences (enumerated list)."
You've been told before.

Do your own research.

Or get your cheque-book out.

In other words, if a lawyer tells you, "This is how the law works," you don't get to respond with, "Nuh uh, that's not what Wiki sez!!!"

Hmmm, I think I may have to make a sig.... =)

I don't need to. You and Arthais have already freely admitted that the legal systems in which you two are trained experts fail my test of absolute predictability.

Which is what I've been saying all along. Despite Arthais's derision (you were less derisive), I was right.

I don't need to. You and Arthais have already freely admitted that the legal systems in which you two are trained experts fail my test of absolute predictability.

Which is what I've been saying all along. Despite Arthais's derision (you were less derisive), I was right.

If I came across as less derisive, I profusely apologise. That was certainly not my intent. Perhaps this is something I need to develop more fully, so I can attain Arthais' level of expressed derision.

If you were paying attention, we also explained many times why 'your' system of absolute predictability is nothing but a pipe dream.

No, it isn't. You can't be arrested for wanting to harm other people, no matter why you want to do so. You can only be arrested for doing so (or attempting to do so.) The only difference is intent, which last I checked is a thought. Hmm.. Thought Crime.



It doesn't make that guy any more dead, but it does mean that the criminal is a danger to all homosexuals. It wasn't just that he was a danger to that one guy. It wasn't that he had a quarrel with that one guy. It is that he is willing to assault any gay person. Wouldn't that make him less of a danger than someone who just kills someone for no reason? I mean, the anti-gay guy is only a threat to a small minority of the population, whereas a nut-job killer is a threat to pretty much anyone.

snip

This is all well and good, but completely irrelevant, as you are comparing apples and oranges.

I have intuitive and basic understandings of both legal and biological topics, if faced with a question, I would come up with an answer that is "on the right track". If discussing biological processes, I would defer to the biologist; if discussing legal processes, I would defer to the attorney. All of this you said, and all of this is true.

There is a big difference, however, between these two. When discussing biology, I cannot look at the outcome and tell the biologist "This is wrong" as biology is a science with (assumed) immutable natural laws.

When discussing the law, I can look at the outcomes and tell the attorney "This is wrong", because it is malleable moral code. As an attorney, you are far more qualified than me to describe how the law works (as would be a real estate agent), but your legal background provides no moral authority to proclaim this law to be correct.

Many have been making the argument on here that this is how the law is, as if it were some innate standard upon which society forms itself, but this is an egregious mischaracterisation.

EDIT: Dempublicents beat me to it.

Oh, but I thought it was perfectly clear that an actual knowledge, even a basic knowledge, of the law was in no was a prerequisite to discussing the topic. I mean...it's not like you'd be expected to have a basic understanding of physics before discussing electrical engineering. Who cares what you don't know? Any idiot can understand the law as well as a lawyer...it's INTUITIVE. Uneducated opinions on the matter should be afforded the highest respect.
The problem with the law is that it relies too much on intuition. It shouldn't require intuition to use the law at all.

your legal background provides no moral authority to proclaim this law to be correct.
What he said.

If you were paying attention, we also explained many times why 'your' system of absolute predictability is nothing but a pipe dream.
You explained in great detail why it wouldn't produce outcomes you like.

But I don't care what outcomes you like. I want predictable processes navigable by machines.

You explained in great detail why it wouldn't produce outcomes you like.

But I don't care what outcomes you like. I want predictable processes navigable by machines.

...Because it matters infinitely more what outcomes you like?

...Because it matters infinitely more what outcomes you like?
Okay, here's why I think what I do about the legal system.

When I studied the philosophy of law, law was typically described as being based on the principles of justice and fairness. Fairness I understood, but I couldn't find a universally applicable definition of justice anywhere, so I discarded justice.

So now all I'm concerned with is fairness. Fairness involves treating people equally, consistently, and predictably, thus allowing them to make their own decisions about how much role the law will play in governing their actions (because I'm also a big fan of individual freedom).

Okay, here's why I think what I do about the legal system.

When I studied the philosophy of law, law was typically described as being based on the principles of justice and fairness. Fairness I understood, but I couldn't find a universally applicable definition of justice anywhere, so I discarded justice.

So now all I'm concerned with is fairness. Fairness involves treating people equally, consistently, and predictably, thus allowing them to make their own decisions about how much role the law will play in governing their actions (because I'm also a big fan of individual freedom).

Hmm. And somewhere you found a specific measure for just how predictable it should be? Surely you didn't just happen upon "robotic" as the optimal degree.

The only difference is intent, which last I checked is a thought. Hmm.. Thought Crime.

The thought is not a crime. The action is. And, as with many things, the motivation for the crime is a factor in the sentencing.

Wouldn't that make him less of a danger than someone who just kills someone for no reason? I mean, the anti-gay guy is only a threat to a small minority of the population, whereas a nut-job killer is a threat to pretty much anyone.

Yeah. Hence the reason that "nut-job killer" would most likely get the absolute maximum sentence. When the motive is, "I really just wanted to kill someone," you're looking at someone who is obviously a danger to the entire population.


So now all I'm concerned with is fairness. Fairness involves treating people equally, consistently, and predictably, thus allowing them to make their own decisions about how much role the law will play in governing their actions (because I'm also a big fan of individual freedom).

Interestingly enough, fairness also has to do with ensuring that the merits of the crime warrant a given response. You'd like to ignore that, since it doesn't fit into your idealistic system where every crime that happens to fall under a given heading is exactly the same, but it is there nonetheless.

If person A and person B do exactly the same thing under exactly the same situation and pose exactly the same threat to society as a whole, they should absolutely be treated exactly the same. Now, when you find me any two crimes that actually meet all of those requirements, get back to me.

It's not the first cause. The other attacker is the first cause. Without him there's no cause for defense.

except that it is possible for there to be a need for defense and still not have your defensive actions be justified. likewise, it is possible to not have taken steps we think one ought to have taken to defend others and thus be blameworthy for this. motive and intent matter. they can't not.

Okay, here's why I think what I do about the legal system.

When I studied the philosophy of law, law was typically described as being based on the principles of justice and fairness. Fairness I understood, but I couldn't find a universally applicable definition of justice anywhere, so I discarded justice.

So now all I'm concerned with is fairness. Fairness involves treating people equally, consistently, and predictably, thus allowing them to make their own decisions about how much role the law will play in governing their actions (because I'm also a big fan of individual freedom).

during a protest in the 60s, the cops rioted and hit columbia university philosopher sidney morgenbesser over the head. he was asked later whether he had been treated unjustly and unfairly, to which he responded:
"Unfairly no, unjustly yes. The police hit me unjustly, but since they hit everyone else unjustly, it was not unfair."

if you like individual freedom, you damn well are required to value justice at least as high as fairness, and actually a great deal more.

Hmm. And somewhere you found a specific measure for just how predictable it should be? Surely you didn't just happen upon "robotic" as the optimal degree.
The robot depiction I think came from Arthais (though I'd have to check).

I just wanted something that was predictable with certainty using only deductive logic.

If person B is shown, in court, to have a taste for killing people, I think we can be pretty certain that his sentence will reflect that fact. Hate crime status is hardly the only mitigating factor that might affect sentencing.
Either the law cannot cope with person B's crime because it isnt a hate crime, or it could deal with person A's crime without the use of hate crime legislation, so that makes hate crime legislation either a distraction from necessary sentencing law reform (and therefore part of the problem) or unnecessary. Either way, I've yet to encounter sound justification for its existence.

You aren't being at all logical here. Your basic objection is, "ZOMG! HATE CRIME LEGISLATION DOESN'T COVER EVERYTHING!"
Nonesense, I am actually using a specific kind of logic - legal reasoning. My objection isnt that hate crime legislation doesnt cover everything (and frankly you must be working very hard to convince yourself of that strawman). The US has a common-law justice system. Extraneous laws and laws whose application are unnecessarily narrow in scope are both undesirable in a common law legal system. Any piece of legislation that has an unnecessarily narrow scope that overlaps and duplicates the effect of existing legislation, is both too narrow to be good law and too extraneous to be good law. And yes I do object to law that isnt good law.

Well, that is obvious. It covers a specific subset of crimes. The laws that increase sentences when a crime is carried out for monetary gain don't cover hate crimes. They only cover the issue of carrying out crimes for monetary gain. Does that mean we should get rid of them?
What a silly and trite straw man. You are very determined to ignore the crucial concept of material relevence. It's not that I object to one piece of legislation that doesnt cover everything, it's that I object of a piece of legislation that doesnt cover anything not already appropriately covered by something. We dont need a law for every kind of material gain one can make. Would you have a problem if I argued that we shouldnt have two distinct pieces of legislation that effect sentencing in a case of theft for material gain depending on whether it was a couch or an armchair that was stolen? I doubt it, because even though we all probably are well aware that couches are not armchairs and armchairs are indeed distinguishable from couches, that's not materially relevent to sentencing. From a sentencing point of veiw stealing a couch worth 200 dollars for material gain is exactly the same as stealing an armchair worth 200 dollars for material gain. Hence a singular legislative prescription dealing with material gain is sufficient to deal with both cases. The law shouldnt recognise every possible detail that could be distinguished, it should only recognise those that are materially relevent and it should use the least amount of legislation practical to do so.

So to justify hate crime legislation it needs to be demonstrated that they add something to the law that is exclusively necessary within the narrow scope to which they apply. There are no aggravating elements present in the case of criminal A (from my example) that are not present in the case of B. If the law can deal with B, it can deal with A without hate crime legislation (so that would make hate crime legislation extraneous), if however, hate crime legislation isnt extraneous (ie bad law), then that must mean we cant deal with B adequately and hate crime legislation is too narrow to fill that gap - we'll have to duplicate it with some other legislation that can apply to all the cases it cant apply to - back to being extraneous....aka bad law. Yes, I certainly object to bad law.

Again if you look back to my example we have enough facts to determine that one is distinguished at law as within the applicable scope of hate law from the other which is not within the applicable scope. If we have enough information to determine that we have enough information to determine if any materially relevent aggravating factor is present, and aside from that one person thought "I'll kill people who are X" and the other though "I'll kill people if they're people" there is absolutely no difference. I put to you that the one difference isnt one that should single out person B (who will kill anyone so long as their a person) to be subject to a lesser number of punitive laws, but that is the effect of hate crime legisation. Every sentencing law that could increase B's sentence applies to A, but B gets a free pass in terms of hate law legislation. A has done nothing that cannot be dealt with under any law that will appropriately deal with B, so an extra law for A's sake is a bad law.


Guess what, aspirin doesn't kill of bacteria. It treats pain. Antibiotics, on the other hand, kill bacteria, but generally don't treat pain. If we moved your objection into the world of medicine, you'd be saying, "Pain can be worse than bacterial infection, so antibiotics are bad because they don't treat pain!"
Are you just really working hard to make this strawman compelling of have you delluded yourself into thinking your intentional misreading (no could be that obtuse so I'm giving you the benefit of the doubt here) actually reflects reality? You can give it up, you're certainly not fooling me. If asprin did deal adequately with every bacteria in every patient we'd very stupid to spend resources coming up with antibiotics. So if you want to discuss this like a grown-up, quit the crap and tell me what element of case A other than thought distinguishes it from case B such that an extra law to deal with case A is necessary, just and desirable.

We need legislation to establish the criteria under which "state of mind" will be evaluated.
And we need to make that legislation as accessable and minimalistic as possible. We need to be able to punish cases according to what is materially relevent (for instance that the motive was material gain) rather than by any old detail we could pick out but cannot demonstrate we ought to pick out (like whether the stolen object was a couch or an armchair). I'm waiting for you to demonstrate in a clear case where one person's crime is subject to hate crime legislation and another's is not, what element the law ought to distinguish on the basis of is present in A's case but not in B's. I note you've made no attempt to do so. Could that be because hate crime legislation applies even where there is no materially relevent aggravating factor that distinguishes a crime from crimes not subject to hate crime legislation? In other words could it be because hate crime legislation is bad law? Looks that way to me.

Um...no. Once again, you are being entirely illogical.
I'm applying legal reasoning, since we are discussing the law that would appear to be the most appropriate logic tool set to apply.

You fail to see that there are other sentencing guidelines that would apply.
You fail at reading/comprehension.
If you cannot indicate what aggravating factor distinguishes A from B, yet hate crime law definately applies to only one, then either we dont need hate crime legislation because the sentencing guidelines that deal appropriately with B will do exactly the same in A's case, or we dont have appropriate guidelines to deal with B. There is no materially relevent aggravating factor present in A but absent in B, so the law ought not distinguish between the two. If the law distinguishes between two materially identical sets of aggravating circumstances, it is poor law. It's like having a seperate piece of legislation to deal with someone who steals an armchair rather than a couch.

Hate crime legislation wouldn't affect the sentencing of a person who didn't commit a hate crime at all. There are other guidelines for that.
Then hate crime legislation isnt needed. There are no materially relevent aggravating factors in the case of person A that are not present in the case of person B, therefore the sentencing guidelines for B are either not appropriate for B or are appropriate for A. Let's recap, every sentencing guideline that applies to B and can be used to punish B, also applies to A. Some sentencing guidelines that can be used to further punish A, cannot be used to punish B, so B gets off easier than A, yet there is no materially relevent aggravating factor that justifies this. B is at least as bad A in terms of harm done and future danger presented. So yes, guidelines that punish B exist and they also punish A, but additional guidelines punish A further while giving B a free ride. Why does B deserve less punishment? Point to the lesser harm or danger associated with B because I just dont see it.

Once again, this is like saying. "Either one medicine treats it all, or taking antibiotics means that pain isn't important at all."
You know this is one of the more pathetic strawmen I've encountered this week (mind you it's only Tuesday). About this sense of security you apparently get from pretending people who disagree with you are really incrediably stupid, (as in stupid enough to argue the lame-duck strawman you are trying to pass off as my actual argument), you ought to know it's as false and whatever warm fuzzies you derive from it are based on dellusion. But hey whatever floats you boat I guess.

except that it is possible for there to be a need for defense and still not have your defensive actions be justified.
The law will have holes like that, yes. I'm willing to accept that.
likewise, it is possible to not have taken steps we think one ought to have taken to defend others and thus be blameworthy for this. motive and intent matter. they can't not.
The law shouldn't require action like that. Doing nothing should never be illegal. In fact, to satisfy my predictability standard, it can't. Requiring action presupposes a certain level of knowledge about my surroundings (unjustifiably) or has to take into account the extent to which I was aware of my surroundings (which the law can't know).

I love how those opposed to hate-crime legislation are reduced to the absurd position that intent and motive are irrelevant to sentencing -- despite the fact that intent and motive have been relevant to sentencing so long as there has been sentencing.

I love people who equate "it has always been this way" with "it should be this way".

Touche. BUT, as explained by Justice Oliver Wendell Holmes, "The life of the law has not been logic, but experience."

okay, so if we keep expanding the "hate crime" category, eventually we will envelop everything, blacks, whites, gays, straights, asains, etc. This is due to the fact that minorities have always pushed for "equal treatment", so why should it not apply here? If a crime against a jew is elevated, why should it not for a christian? and so on...... so, these "hate crimes" are all a bunch of crap.

Interestingly enough, fairness also has to do with ensuring that the merits of the crime warrant a given response.
How? As long as I was aware of the consequences in advance, I can't claim to have been treated unfairly if I willingly chose to face those consequences.
You'd like to ignore that, since it doesn't fit into your idealistic system where every crime that happens to fall under a given heading is exactly the same, but it is there nonetheless.
If the crimes are relevantly similar, they should.
If person A and person B do exactly the same thing under exactly the same situation and pose exactly the same threat to society as a whole, they should absolutely be treated exactly the same. Now, when you find me any two crimes that actually meet all of those requirements, get back to me.
First of all, I'm going to discard part of that straight away. How much threat they pose to society is based entirely upon these people's thoughts. I will not criminalise thought.

And yes, it is a thought crime. You can think of it as a future action crime all you want, but as long as the actions haven't occurred they're just thoughts. You don't get away from that by only going after people who've already broken some other law - you're still punishing them based on their thoughts.

So...

If person A and person B do exactly the same thing under exactly the same situation, they should absolutely be treated exactly the same.
Well, how exact is exact? I'll go with relevantly similar as defined by statute. If person A and person B each perform an act that falls under that definition, they should be treated exactly the same.

if you like individual freedom, you damn well are required to value justice at least as high as fairness, and actually a great deal more.
How can I when I can't find a universally applicable definition of the word. I don't even know what you people mean when you say "justice".

olay, so if we keep expanding the "hate crime" category, eventually we will envelop everything, blacks, whites, gays, straights, asains, etc. This is due to the fact that minorities have always pushed for "equal treatment", so why should it not apply here? If a crime against a jew is elevated, why should it not for a christian? and so on...... so, these "hate crimes" are all a bunch of crap.

olay, so if we keep expanding the "hate crime" category, eventually we will envelop everything, blacks, whites, gays, straights, asains, etc... If a crime against a jew is elevated, why should it not for a christian?

*pssst*
it already works like that

How can I when I can't find a universally applicable definition of the word. I don't even know what you people mean when you say "justice".

well you'll have to puzzle out some sort of meaning, because fairness tends away from individual freedom in the sense you are after.

The robot depiction I think came from Arthais (though I'd have to check).

I just wanted something that was predictable with certainty using only deductive logic.

How predictable though? What parts? I can currently predict that someone judged to have commited a hate crime will have their sentence increase. We could program a computer, if hate crime is included in the set "commited by the defendant", increase sentece by x amount, x ranging from a to b. A and b being whatever time periods are applicable, ask the legislation, not me.


The law shouldn't require action like that. Doing nothing should never be illegal. In fact, to satisfy my predictability standard, it can't. Requiring action presupposes a certain level of knowledge about my surroundings (unjustifiably) or has to take into account the extent to which I was aware of my surroundings (which the law can't know).

Not paying taxes? *shrug*

There's that 'know' thing again. How does the law 'know' something? Eye witnes accounts? Game theory?

How? As long as I was aware of the consequences in advance, I can't claim to have been treated unfairly if I willingly chose to face those consequences.

As in, if you weren't aware of whether you'd serve eight months or nine months, that would be unfair?

Well, how exact is exact? I'll go with relevantly similar as defined by statute. If person A and person B each perform an act that falls under that definition, they should be treated exactly the same.

Statute currently defines hate crime, no? You want to say "...as defined by statute as it should be", right?

well you'll have to puzzle out some sort of meaning, because fairness tends away from individual freedom in the sense you are after.
No. It grants the individual perfect knowledge of outcomes.

What aggravating factor distinguishes the two cases to such an extent that entirely seperate and additional legislation is needed to achieve the proper outcome for A? There are none.

Ah, finally, a point! I'd been looking for that to become apparent.

Is this not the crux of your argument?

No. It grants the individual perfect knowledge of outcomes.

Any situation where the individual is unaware of outcomes is unfair, or just in crime and law and such?

You know this is one of the more pathetic strawmen I've encountered this week (mind you it's only Tuesday). About this sense of security you apparently get from pretending people who disagree with you are really incrediably stupid, (as in stupid enough to argue the lame-duck strawman you are trying to pass off as my actual argument), you ought to know it's as false and whatever warm fuzzies you derive from it are based on dellusion. But hey whatever floats you boat I guess.

You know what, I was going to actually answer this post. But I got sick of the personal attacks. The delete button is my friend.

okay, so if we keep expanding the "hate crime" category, eventually we will envelop everything, blacks, whites, gays, straights, asains, etc. This is due to the fact that minorities have always pushed for "equal treatment", so why should it not apply here? If a crime against a jew is elevated, why should it not for a christian? and so on...... so, these "hate crimes" are all a bunch of crap.

Once again, hate crime legislation has nothing whatsoever to do with elevating crimes against certain individuals. It doesn't matter that the victim is a Jew/Christian/Asian/etc. What matters is the motivation behind the crime - the reason that the criminal committed it.

Hate crime legislation does envelop all ethnicities. It does envelop all religions. And it should envelop all sexual orientations and gender identities. It envelops all of these specifically because it is not a law to make harming a member of a given group worse than harming a member of another. Instead, it is meant to more harshly punish those who commit crimes against someone specifically because they belong to said group.

Any situation where the individual is unaware of outcomes is unfair, or just in crime and law and such?
When the system is specifically punishing him (or not) for his actions, he should be permitted to know what actions will face punishment.

Furthermore, if the point of punishment is to deter crime (and I honestly can't think of another reason to have punishment at all), it can only work if the punishment is predictable.

No. It grants the individual perfect knowledge of outcomes.

and that leads to individual freedom, how?

When the system is specifically punishing him (or not) for his actions, he should be permitted to know what actions will face punishment.

Furthermore, if the point of punishment is to deter crime (and I honestly can't think of another reason to have punishment at all), it can only work if the punishment is predictable.

Interesting...And what constitutes perfect knowledge? More than just the length of time, surely?

Interesting...And what constitutes perfect knowledge? More than just the length of time, surely?
The law should describe the punishment in considerable detail. Otherwise differrent institutions might offer different levels of punishment, thus damaging prescriptivity.

You talk funny; sorta roundabout, yanno? Let's focus on what you conviniently labeled as the simple part.
I have an expectation that if you engage others in conversation you'll do your bit and think for yourself. It should be enough to draw the dots and maybe even connect them with lines, one shouldnt also have to explain what dots and lines are.

I imagine that B is being punished appropriately.
Then why do you imagine A isnt being punished appropriately without hate crime legislation? What aggravating factor distinguishes the two cases to such an extent that entirely seperate and additional legislation is needed to achieve the proper outcome for A? There are none so far as I can see. If the law can deal with B without hate crime legislation then it doesnt need hate crime legislation to deal with A, yet it and extra punishment accordingly applies to case A. That is bad law.

Just not for hate crime. Hate crime legislation would not distract judges from sentencing person B.
Nowhere did I state that it does. Rather if it is of any purpose whatsoever, it is filling a gap in a small scope of the cases where the gap can occur. That detracts from efforts to fix the gap in all the cases where it needs to be fixed (and if eventually the gaps are plugged it leaves duplication which is undesriable). It's only a distraction from reform if it actually serves a purpose (ie if it's true that B wouldnt be punished appropriately because hate law legislation doesnt apply). So either it detracts from the resources and attention that could be directed towards plugging the gap across the board, or it serves no useful purpose and is simply unjust, extraneous bad law. Either way it's bad law.

Hmm, and this other bit here...Why "the tools used to adequately punish person B would adequately punish person A"? How does that become one of the options in the either-or?
It's not either use the tools that apply to B for A or use hate crime legislation. That being a large part of the point. The tools applied to B will be applied to A, then in addition, despite A's crime being no worse in intent or effect, despite A causing no more harm and presenting the lesser danger, A will be further punished by hate crime legislation.

I don't see why you'd reach that conclusion. Different situations may call for different legislation, different 'tools' if you will. I personally am fond of screwdrivers, but hammers have their merits.
No kidding. What you continue to fail to account for is the concept of material relevence.

A tennet of the US justice system is that people appearing before the courts get equal treatment. Criminals are to be charged in accordance with the unacceptability of their act, the callousness involved, the harm and danger they present and have committed. In other words in accordance with the materially relevent elements of their crime.

They are not punished according to what colour under-wear they wore at the time, they are not punished according to whether or not their mother's maiden name started with a K or a Y. They are punished according to materially relevent facts and for the system to just only materially relevent facts. We utilise concepts such as harm and danger of future harm in order to facilitate a determination as to what constitutes a materially relevent element of the crime for the purposes of sentencing.

If we can determine that one case can be distinguished from another because hate crime legislation only applies to one and not the other, then we have enough information to either identify the materially relevent aggravating factor that distinguishes them (including the reasoning that leads us to conclude the factor aggravates for instance by increasing harm, or danger of future harm), or to conclude that hate crime legislation requries the courts apply additional punishment despite a lack of any materially relevent aggravating feature, in other words that it is an additional, unjust and arbitary punishment. Aka bad law.

Either put up (demonstrate the materially relevent aggravating factor that renders the effect, intent or future danger indicated with regards to A's crime) or concede that you dont have a point. Pointing out that the courts utilise a variety of sentencing tools does nothing whatsoever to demonstrate that they should use any particular tool or that a particular tool is desirable.

The robot depiction I think came from Arthais (though I'd have to check).

I just wanted something that was predictable with certainty using only deductive logic.

I'm afraid that one's my fault. I made a comment about how 'Llewdor would prefer a society run by a computer fed with instructions by politicians', and you replied 'Yes, Llewdor would.'

It all rolled downhill from there. Or possibly clicked and whirred in a robotic fashion downhill.

The law should describe the punishment in considerable detail. Otherwise differrent institutions might offer different levels of punishment, thus damaging prescriptivity.

Would we need to standardize prisons to a specific requirement? That is to say, no more, no less? Specfic amount of space, number of gaurds, scheduling, facilities, level of upkeep?

You know what, I was going to actually answer this post. But I got sick of the personal attacks. The delete button is my friend.

I would encourage you to answer the points in Zigat's post; if only because I was looking forward to seeing your response to the points he made.

This has been an interesting discussion so far.

and that leads to individual freedom, how?
The individual cam make informed decisions. If you're going to punish someone regardless of what they do (and from their point of view, if the punishment isn't predictable this is always how the punishment works), then you haven't granted them any freedom to govern their own future at all.

By allowing them to make an informed decision, you grant them freedom.

Remeber:
So sentences should basically be a flat price for committing the crime? If a person is willing to go to prison for ten years to commit a murder, but not willing to go fifteen, he should be able to consider his options?
Yes! Absolutely!

Finally someone understands my position.

olay, so if we keep expanding the "hate crime" category, eventually we will envelop everything, blacks, whites, gays, straights, asains, etc. This is due to the fact that minorities have always pushed for "equal treatment", so why should it not apply here? If a crime against a jew is elevated, why should it not for a christian? and so on...... so, these "hate crimes" are all a bunch of crap.

see this? This is the kind of crap I was talking about.

The individual cam make informed decisions. If you're going to punish someone regardless of what they do (and from their point of view, if the punishment isn't predictable this is always how the punishment works), then you haven't granted them any freedom to govern their own future at all.

By allowing them to make an informed decision, you grant them freedom.

and freedom is thus compatible with totalitarianism...

and freedom is thus compatible with totalitarianism...
This aspect of freedom, yes.

But there is no requirement here that all aspects of life be so regulated, so totalitarianism isn't required.

I would further argue that the interpretive, intuitive system Arthais supports is, in fact, worse than totalitarianism featuring my legal system, because a person doesn't know what aspects of his life are governed by law, so it may well be all of them.

No. But it is less acceptable, and more severely punished, to attack someone simply because of their status as a member of a specific group (suggesting that all members of that group are in danger), rather than because of a specific bone you have with one person.
That is a principal that is sub-optimal for legal application because it is narrower than it needs to be, thus less effective than it ought to be. A better principal that achieves the same aims and then some is the principal that it is worse to attack some randomised target than it is to attack someone who you were hostiley engaged with. The first principal would see someone who is a danger to and installs fear in a portion of society receive a harsher sentence than someone who is a danger and installs fear in every member of society, while the latter ensures the courts deal with both equally (which is to say justly). You might recall it was your contention that hate crime legislation gives additional punishment correlated to additional harm and danger of future harm, yet my example demonstrates that of two equally harmful persons the one dangerous to the least number of people is subject to additional punishment due to hate crime legislation.

In other words, a person who went out looking to attack an Asian man - any Asian man - because he was Asian will receive a harsher sentence than a person who goes out looking for the man (who happens to be Asian) who slept with his wife.
Yep, and they'll also get a harsher sentence than someone who goes out looking for any man, woman, or child just because they are a man woman or child. A fact that is inconsistent with your desire to present hate crime legislation as punishing actual harm and danger presented rather than a socially and politcially unpopular opinion.

Under other laws, a man who kills a man who happens to be Asian because someone is paying him to do it would almost certainly get a harsher sentence than the latter - probably a harsher sentence than either of them.
Yep, under an appropriately broad principal that wouldnt let him off the hook if he got paid in couches instead of cash. We dont consider if he got money for the killing, we consider whether it was for material gain. That is because the harm and danger of future harm as well as the reprehensibility of the crime isnt effected by whether the gain was monetary or couchetary.

We keep hearing all this harping about aggravating factors being considered during sentencing. What we dont see any evidence of whatsoever is any indication (much less demonstration) that hatred for some particular group included on some particular schedule actually constitutes a materially relevent aggravating factor. To demonstrate that you need to show how the hatred itself introduces harm and or danger above and beyond what we can demonstrate is possible in the absence of that hatred. If you cant do that you cannot justify the hatred as a materially relevent aggravating factor. I dont even see an attempt to do so. All I hear is harping about the obvious fact that aggravating circumstances are taken into account in sentencing. No shit, now how about you demonstrate that hatred toward X group is an aggravating factor rather than just another irrational and incrediably stupid reason to commit a crime.

It's a matter of degree, and there are other sentencing guidelines that could possibly affect a given crime (or possibly use the insanity plea).
All of which apply to crimes subject to extra punishment under hate crime legislation. That's only acceptable if we can prove that the hatred at issue inherently and necessarily increases the harm or danger of the crime. Otherwise it's just imposing extra punishment based on arbitary trends in social hysteria.

Someone who goes out just looking to kill - indiscriminately - is most likely going to get the harshest possible sentence.
That doesnt make any sense. They are only subject to esculations in their sentence that someone who goes out just looking to kill a member of a minority group named in the hate crime legislation's schedule is subject to, but they are not subject to the additional punitive effects imposed by the hate crime legislation. The way law works, both are supposed to be equally punished under the guidelines common to both while one is punished additionally under the hate crime legislation guidelines that only apply to them. You might want to ignore that fact since it is contrary to your assertions that hate crime legislation punishes aggravating factors rather than unpopular opinions, but the reality remains.

By allowing them to make an informed decision, you grant them freedom.


Just confirm this for me: Is the rape victim free if she is presented with clear and honest choice of submit or die?

Just confirm this for me: Is the rape victim free if she is presented with clear and honest choice of submit or die?
Yes and no. She's been forced into choosing between these two things, so no, but in this choice she can choose freely between the alternatives.

That is a principal that is sub-optimal for legal application because it is narrower than it needs to be, thus less effective than it ought to be. A better principal that achieves the same aims and then some is the principal that it is worse to attack some randomised target than it is to attack someone who you were hostiley engaged with. The first principal would see someone who is a danger to and installs fear in a portion of society receive a harsher sentence than someone who is a danger and installs fear in every member of society, while the latter ensures the courts deal with both equally (which is to say justly).

This has been an interesting discussion for me because I haven't yet come down on either side.

Question: How do you feel about laws that expressly forbid threatening to kill? In a sense, no act has been committed except expressing a desire to do harm.

Also, is there a case that the specific type of harm inflicted in this scenario is actually reduced when inflicted upon a larger target population - because the threat is more dispersed - so that we could consider targeting specific groups as being more harmful than targeting the population in general, and that targeting an individual is the most harmful of all?

Yes and no. She's been forced into choosing between these two things, so no, but in this choice she can choose freely between the alternatives.

Who has ever been placed in a situation with unlimited choices?

I agree with your rep.
Same here.

Llewdor has been on the wrong track all along

Pre-meditation is an act, not a motive.

Wrong. Premeditiation is a state of mind. It may be inferred from certain acts.

The different degrees of homicide are distinquished primarily by the state of mind of the perpetrator.

The trouble with hate crimes legislation is you're penalising someone for having a specific motive that can only apply to certain individuals.

Wrong. You are penalizing someone for a specific motive, yes, but one that applies when it is shown beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person

You can be white, male, and Christian and be a victim of a race, color, religion, gender, etc., hate crime.

No individuals receive extra protection under the law -- only certain classifications of people receive extra protection.

So, not only do those individuals receive extra protection under the law, but it's a useless distinction because you can't know why the perp commited the crime.

Wrong.

You can know motive and intent beyond a reasonable doubt the same as you can know anything else in a criminal courtroom.

If I catch my wife with another man and kill him, that's second-degree murder.

But if I'm a known racist and the other man happens to be black, I've somehow commited a hate crime, even though my behaviour may not have been influenced by my hatred.

Wrong.

You have not committed a hate crime simply because your victim is black and you are a racist.

You have only committed a hate crime if it can be shown beyond a reasonable doubt that you intentionally selected your victim as the object of the murder because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person.

Your victim could be black and you could be a racist, but you wouldn't necessarily be guilty of a hate crime.

Your victim could be white and you could be guilty of a hate crime if you intentionally selected your victim because of his actual or perceived race.

Motives aren't knowable, so they shouldn't have that much weight.

Wrong.

Motive and intent are woven throughout the law. They are as determinable beyond a reasonable doubt as anything else in a courtroom.

I go back to the words of a unanimous U.S. Supreme Court in Wisconsin v. Mitchell (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=508&invol=476), 508 U.S. 476, 484-88 (1993):

But the fact remains that, under the Wisconsin statute, the same criminal conduct may be more heavily punished if the victim is selected because of his race or other protected status than if no such motive obtained. Thus, although the statute punishes criminal conduct, it enhances the maximum penalty for conduct motivated by a discriminatory point of view more severely than the same conduct engaged in for some other reason or for no reason at all.

Traditionally, sentencing judges have considered a wide variety of factors in addition to evidence bearing on guilt in determining what sentence to impose on a convicted defendant. See Payne v. Tennessee, 501 U.S. 808 820-821 (1991); United States v. Tucker, 404 U.S. 443, 446 (1972); Williams v. New York, 337 U.S. 241, 246 (1949). The defendant's motive for committing the offense is one important factor. See 1 W. LeFave & A. Scott, Substantive Criminal Law 3.6(b), p. 324 (1986) ("Motives are most relevant when the trial judge sets the defendant's sentence, and it is not uncommon for a defendant to receive a minimum sentence because he was acting with good motives, or a rather high sentence because of his bad motives"); cf. Tison v. Arizona, 481 U.S. 137, 156 (1987) ("Deeply ingrained in our legal tradition is the idea that the more purposeful is the criminal conduct, the more serious is the offense, and, therefore, the more severely it ought to be punished"). Thus, in many States, the commission of a murder or other capital offense for pecuniary gain is a separate aggravating circumstance under the capital sentencing statute. See, e.g., Ariz.Rev.Stat.Ann. 13-703(F)(5) (1989); Fla.Stat. 921.141(5)(f) (Supp. 1992); Miss.Code Ann. 99-19-101(5)(f) (Supp. 1992); N.C.Gen.Stat. 15A-2000(e)(6) (1992); Wyo.Stat. 6-2-102(h)(vi) (Supp. 1992).

...

Moreover, the Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm. For example, according to the State and its amici, bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest. See, e.g., Brief for Petitioner 24-27; Brief for United States as Amicus Curiae 13-15; Brief for Lawyers' Committee for Civil Rights Under Law as Amicus Curiae 18-22; Brief for the American Civil Liberties Union as Amicus Curiae 17-19; Brief for the Anti-Defamation League et al. as Amici Curiae 910; Brief for Congressman Charles E. Schumer et al. as Amici Curiae 8-9. The State's desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders' beliefs or biases. As Blackstone said long ago, "it is but reasonable that, among crimes of different natures, those should be most severely punished which are the most destructive of the public safety and happiness." 4 W. Blackstone, Commentaries *16.

Your beef with hate crime legislation appears to actually be a disagreement on your part with our entire system of justice as it has existed for centuries. Human experience tells us that inquiring into intent and motive is doable, reasonable, and worthy.

Your beef with hate crime legislation appears to actually be a disagreement on your part with our entire system of justice as it has existed for centuries. Human experience tells us that inquiring into intent and motive is doable, reasonable, and worthy.

Actually we've discovered than on top of his overwhelming ignorance of the legal system, Llewdor does in fact want to take intent and motive out of it completely, and have a totally predictable, rational system of justice. Preferably one presided over by robots. No joke.

He wants you to teach him why he is wrong...his claim in any case, because anything less means he wins by default somehow...and then when you bother to waste your time, he'll dismiss it all with a wave and declare that 'his' system would be infallible.

We've attempted to show him how 'his' system would be totally unworkable...but he is unable to grasp it because he fails to comprehend the present system in any way shape or form, and lacks the ability to conceive of a system that could actually be applied to human beings.

Actually we've discovered than on top of his overwhelming ignorance of the legal system, Llewdor does in fact want to take intent and motive out of it completely, and have a totally predictable, rational system of justice.

but without the justice (http://forums.jolt.co.uk/showpost.php?p=12554574&postcount=92) part

but your legal background provides no moral authority to proclaim this law to be correct.


We're not talking about outcomes Vitt, we're talking about PROCESS. Yes, you can look at a legal outcome and say, 'that's wrong'...it's a perfectly valid moral judgment. A lawyer can look at it and say, 'wrong outcome' or 'right outcome'. But the lawyer is generally not making the same comment you are, the lawyer is referring to the process that was used to arrive at that outcome...not the morality of the outcome.

Looking at the outcome tells you nothing about the process unless you already understand that process.

So Arthais was completely correct. It's fine to have an opinion about how the law SHOULD be. It's not fine to think that one's opinion about the process is in any way actual knowledge that trumps that held by someone who is actually an expert in the field.

Llewdor looks at outcome and thinks he understands the process. Many people do. It's insulting to believe this could possibly be true. In that way, it is directly comparable to biology.

but without the justice (http://forums.jolt.co.uk/showpost.php?p=12554574&postcount=92) part

Too bad his definition of fairness is inherently unfair.

He wants a system that is simple, and understandable so it can be predictable. This would necessarily mean a one-size fits all system, not able to be tailored to particular circumstances...too many contingencies in his mind means confusion.

His version law would neither serve the principles of justice NOR fairness.

Question: How do you feel about laws that expressly forbid threatening to kill? In a sense, no act has been committed except expressing a desire to do harm.

How do you define harm?

We believe in the autonomy of the person, and the right to the security of the person, no? When you are threatened with acts of violence, either verbally or physically, that right is being violated. When you are made to fear imminent harm, there is not an absence of harm until the actual violence occurs...whether you measure the harm in psychological terms, or simply in terms of the violation of your individual right to security of the person, the harm is produced by the THREAT alone.

Wrong. Premeditiation is a state of mind. It may be inferred from certain acts.

The different degrees of homicide are distinquished primarily by the state of mind of the perpetrator.

I have always thought that premeditation went towards establishing a considered intent. The greater the planning the greater the intent, am I correct?

only certain classifications of people receive extra protection.

I am pretty sure that is what he meant, people should receive protections or benefits that aren't universal.

Human experience tells us that inquiring into intent and motive is doable, reasonable, and worthy.

I personally agree with all of that other than motive being a worthy pursuit.

If someone intends to do harm, then they intend to harm. I am not really sure why "Why?" comes into the question.

We're not talking about outcomes Vitt, we're talking about PROCESS. Yes, you can look at a legal outcome and say, 'that's wrong'...it's a perfectly valid moral judgment. A lawyer can look at it and say, 'wrong outcome' or 'right outcome'. But the lawyer is generally not making the same comment you are, the lawyer is referring to the process that was used to arrive at that outcome...not the morality of the outcome.

Looking at the outcome tells you nothing about the process unless you already understand that process.

So Arthais was completely correct. It's fine to have an opinion about how the law SHOULD be. It's not fine to think that one's opinion about the process is in any way actual knowledge that trumps that held by someone who is actually an expert in the field.

Llewdor looks at outcome and thinks he understands the process. Many people do. It's insulting to believe this could possibly be true. In that way, it is directly comparable to biology.

This is true. I just wanted to point out that differences in opinion on biology were always rooted in ignorance, that is not true of the law.

I, for one, do not agree with hate crime laws because a good legal system does not need to account for motive to be an effective deterrent.

Ah, finally, a point! I'd been looking for that to become apparent.

Is this not the crux of your argument?
As I've already indicated, I'm not responsible for your failure to comprehend. I've presented this same point numerous times, in fact that was the point my first post in this thread was about. Care to address it?

You know what, I was going to actually answer this post. But I got sick of the personal attacks. The delete button is my friend.
Your argument is not your person. It's no more a personal attack or an insult than wrongly implying I am so stupid I dont realise the simple principal illucidated in your little 'asprin doesnt cure every medical problem' strawman. The real reason you're not going to answer is because aside from throwing about insulting strawmen intended to make me and my argument look absurd, you have nothing whatsoever to counter my actual argument with, which was the entire point of the comments you object to.

I have always thought that premeditation went towards establishing a considered intent. The greater the planning the greater the intent, am I correct?

Um, no, not exactly. Intent is a state of mind. There's no such thing as "greater the intent". You either intended to do something, or you did not.

If it can be demonstrated through your actions that you intended to commit your act, yuo can be convicted of a crime which has a mens rea requirement of intent.

A crime is a crime, reguardless of the reason, method, or end-result.

The justice system should be focused on enforcing the law, not deciphering why the crime was committed. Leave that shit to the social engineers and psychologists. As to "hate crimes", it's pure and utter bullshit.

If a man walks into a room and finds his wife in bed with another man, and he kills the man, he gets bagged for second-degree murder. He'll get a few years at most. However, if a known Nazi party member and racist guns down a black man to the tune of the Horst Wessel march, he'll probably get life in jail (or death, if in Texas, probably) after a protracted, emotional trial in which the entire extended family testifies about the man killed.

I don't see why the difference in punishment handed out. (Personally, both crimes classify as murder and merit the death penalty by hanging). Both men killed in both instances have large extended families, long life stories, and they're now both dead. Is the second man somehow more dead than the first one?

This has been an interesting discussion for me because I haven't yet come down on either side.'
In all honesty I dont have a firm view either way myself. I'm uncomfortable with hate crime legislation because I cannot determine what aggravating factor applies exclusively and all-pervadingly only to crimes subject to the provisions of the legislation.

Question: How do you feel about laws that expressly forbid threatening to kill? In a sense, no act has been committed except expressing a desire to do harm.
To cause someone to form a reasonably held fear that an unjust and unlawful harm will be committed against them as a result of an intentional act (such as uttering a threat) constitutes an act.

Also, is there a case that the specific type of harm inflicted in this scenario is actually reduced when inflicted upon a larger target population - because the threat is more dispersed - so that we could consider targeting specific groups as being more harmful than targeting the population in general, and that targeting an individual is the most harmful of all?
Well if targeting the individual is the worst, then a crime against a person that is motivated by their individual traits would be worse than random violence for violence's sake, but that's not necessarily the case.

The phenomenon you suggest isnt something that is necessarily exclusive to or inherent in all and only acts that constitute hate crimes under the legislation. I could target people who prefer cats to dogs and when it was realised some nutter out there was killing cat-lovers, this would target out a group for increased fear, but wouldnt make me or my acts subject to hate crime legislation. I think that if the fear intended or liklihood of inducing fear is to be punished then it should be punished regardless whether or not the targetted group are on some schedule.

In short although I'm currently uncomfortable with it, I can easily be convinced that hate crime legislation isnt bad law. All that need be shown is that there is some exclusive element of all and every and only crimes subject to the legislation, that justifies particular punishment that cannot be achieved in any way shape or form by more generalised legislative means.

The justice system should be focused on enforcing the law, not deciphering why the crime was committed.

This is more of the shame crap that i was talking about.

I don't see why the difference in punishment handed out. (Personally, both crimes classify as murder and merit the death penalty by hanging). Both men killed in both instances have large extended families, long life stories, and they're now both dead. Is the second man somehow more dead than the first one?

If I slip on some ice while driving and hit someone on the sidewalk he is equally as dead.

Should the punishment be the same as if I shot him in the face?

This is more of the shame crap that i was talking about.



If I slip on some ice while driving and hit someone on the sidewalk he is equally as dead.

Should the punishment be the same as if I shot him in the face?

Manslaughter and murder are two different crimes. If it can be proven - and your example is a pretty easy one - that you didn't intend to kill anyone, then no, you won't hang.

Manslaughter and murder are two different crimes. If it can be proven - and your example is a pretty easy one - that you didn't intend to kill anyone, then no, you won't hang.

ahhh, so then...the circumstances in which someone is killed actually matter then?

So what was your point?

You asked me whether or not the punishment would be the same--I said no, and explained why.

You asked me whether or not the punishment would be the same--I said no, and explained why.

Ahh. Ok, you're going kinda quick so let me make sure I understand you.

You say that if I shoot someone in the face and kill him, this is a different kind of crime than if I accidentally run him over in my car right?

I mean, these are seperate crimes, with different names? Murder and manslaughter or something, right?

So someone who commits murder gets a different sentence than someone who commits manslaughter? Longer, because murder is a worse crime, right?

So if you commit murder and kill somebody, and I commit manslaughter and kill somebody, we both killed some body right? But you go to prison longer? Am I getting this right? I don't want to make a mistake.

But either way, you killed a man, I killed a man, they're both dead, right?

I'm sure then that you would agree with me when I say

I don't see why the difference in punishment handed out...Both men killed in both instances have large extended families, long life stories, and they're now both dead. Is the second man somehow more dead than the first one?

How do you define harm?

We believe in the autonomy of the person, and the right to the security of the person, no? When you are threatened with acts of violence, either verbally or physically, that right is being violated. When you are made to fear imminent harm, there is not an absence of harm until the actual violence occurs...whether you measure the harm in psychological terms, or simply in terms of the violation of your individual right to security of the person, the harm is produced by the THREAT alone.

(Still in devils's advocate mode here...)

Setting aside psychological harm for a moment (which is important, but subject to individual differences); is it possible to show the transition between when a potential victim's security is not threatened, to when it is clearly threatened, in these three scenarios?


An angry person writes a threatening letter to another person but keeps it to him/herself.

An angry person writes a threatening letter and shows it to other people, but not the intended victim (assuming the victim never finds out).

An angry person writes a threatening letter and sends it to the intended victim.


Is the victim's security threatened any less in the first scenario? If so, why?

Um, no, not exactly. Intent is a state of mind. There's no such thing as "greater the intent". You either intended to do something, or you did not.

If it can be demonstrated through your actions that you intended to commit your act, yuo can be convicted of a crime which has a mens rea requirement of intent.

Well, yes.

What I meant is that if I meet up with someone and strangle them because I get mad at them, I am still intending to murder them otherwise I wouldn't be strangling them. This would be a different level of intent than if I purchased a gun and plane ticket and traveled across the country to shoot him, am I correct ?

There is wanting to do something bad, and there is wanting to do something bad, that is what I meant by "considered" intent.

In all honesty I dont have a firm view either way myself. I'm uncomfortable with hate crime legislation because I cannot determine what aggravating factor applies exclusively and all-pervadingly only to crimes subject to the provisions of the legislation.

I can see the usefulness of Hate crime legislation, but like yourself I wonder if there are even better ways to universalise laws against irrational acts of violence (or the threat of it). Jury's still out on that one, pardon the pun.

I think that if the fear intended or liklihood of inducing fear is to be punished then it should be punished regardless whether or not the targetted group are on some schedule.

Llewdor has been on the wrong track all along
This should be fun.
Wrong. Premeditiation is a state of mind. It may be inferred from certain acts.
But if the acts don't exist, you can't identify premeditation, so what you're really doing is judging the acts, not the state of mind. What you need to do then is describe which acts constitute evidence of premeditation. If you can't do that, how do you know when to infer premeditation?
The different degrees of homicide are distinquished primarily by the state of mind of the perpetrator.
That's a terrible idea.
Wrong. You are penalizing someone for a specific motive, yes, but one that applies when it is shown beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person

You can be white, male, and Christian and be a victim of a race, color, religion, gender, etc., hate crime.

No individuals receive extra protection under the law -- only certain classifications of people receive extra protection.
The motive can only apply to certain individuals - the people I hate. You're therefore granting special protection to any group disproportionately hated by society at large.

I didn't say it was a fixed set.
Wrong.

You can know motive and intent beyond a reasonable doubt the same as you can know anything else in a criminal courtroom.
The legal system certainly thinks so. I disagree. I can't imagine a set of evidence sufficient to determine motive and intent beyond a reasonable doubt.
You have only committed a hate crime if it can be shown beyond a reasonable doubt that you intentionally selected your victim as the object of the murder because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person.
So now whether I've commited the crime hinges on what can be shown after the fact? That's ex post facto law.
Wrong.

Motive and intent are woven throughout the law. They are as determinable beyond a reasonable doubt as anything else in a courtroom.
That they are woven throughout the law is not evidence that they should be. Now you're presupposing the infallibility of the law.
it is not uncommon for a defendant to receive a minimum sentence because he was acting with good motives, or a rather high sentence because of his bad motives
This harms the prescriptivity of law. If I don't know what punishment I'll face as a result of my actions, the threat of punishment will be less effective at deterring criminal behaviour.
Your beef with hate crime legislation appears to actually be a disagreement on your part with our entire system of justice as it has existed for centuries.
Yes, and hate crime legislation makes it worse.
Human experience tells us that inquiring into intent and motive is doable, reasonable, and worthy.
Reason tells us otherwise.

Actually we've discovered than on top of his overwhelming ignorance of the legal system...
...which is irrelevant to this discussion...
...Llewdor does in fact want to take intent and motive out of it completely, and have a totally predictable, rational system of justice.
Yes I do.
Preferably one presided over by robots.
The roots are just a test. If robots can preside over it, then it is a sufficiently rational system.
We've attempted to show him how 'his' system would be totally unworkable.
And you fail because you're focussing on outcomes. I don't care what the outcomes are - I want a rational process.
...and lacks the ability to conceive of a system that could actually be applied to human beings.
The system you support can't be applied to me (or, indeed, any wholly rational agent). Am I not a human being?

I've found the idea of "hate crime" ridiculous. Hey, if murder, assault, etc., are already illegal, it doesn't much matter whether it was done out of "hate" for a specific group or not.

And while some groups would get on the protected list, others who might have just as much merit will not. And you'll have to continually update the list.

Smacks of violating equal protection under the law, to me.

Llewdor looks at outcome and thinks he understands the process.
I look at the process and deem it unfair. So I offer an alternative process. The outcomes are immaterial.

I look at the process and deem it unfair. So I offer an alternative process. The outcomes are immaterial.

If outcomes aren't even important, why have a process at all? Is the justice system just there for the hell of it?

Too bad his definition of fairness is inherently unfair.
See, that's actually something we could debate, but no one's willing to try.

My definition of fairness might be inherentl unjust, but I can't tell because no one will offer even their own definition of justice. I can't understand how so many people can feel so strongly about something they can't even define for themselves.
He wants a system that is simple, and understandable so it can be predictable.
I don't require simplicity. And I only require it be understandable by reasonable people. And as you know, I think reasonable people are pretty rare.
This would necessarily mean a one-size fits all system, not able to be tailored to particular circumstances...too many contingencies in his mind means confusion.
I don't mind contingencies as long as they're all knowable to a rational outsider in advance.
His version law would neither serve the principles of justice NOR fairness.
How do you know if you can't define justice?

This is more of the shame crap that i was talking about.
No! Dammit!

Look, the law currently needs to decipher motives in order to be used and enforced, yes, but that's not necessarily true for all possible legal systems.

You're so trapped by your training in the current legal system you're having trouble wrapping your head around discussions of other possible legal systems.

Ahh. Ok, you're going kinda quick so let me make sure I understand you.

You say that if I shoot someone in the face and kill him, this is a different kind of crime than if I accidentally run him over in my car right?

I mean, these are seperate crimes, with different names? Murder and manslaughter or something, right?

So someone who commits murder gets a different sentence than someone who commits manslaughter? Longer, because murder is a worse crime, right?

So if you commit murder and kill somebody, and I commit manslaughter and kill somebody, we both killed some body right? But you go to prison longer? Am I getting this right? I don't want to make a mistake.

But either way, you killed a man, I killed a man, they're both dead, right?

I'm sure then that you would agree with me when I say

It seems I've contradicted myelf a bit here--so let me try again. A crime is a crime, reguardless of the reasoning behind it, or how it was done. However, in the case of manslaughter versus murder (for example), the qualifying factor would be the intent. Did you intend to kill the poor bastard on the side of the road, or was there really ice? Can anyone testify to icy conditions at the time/plce you describe?

However, the skin color of the guy killed, if you did intend to run his ass over, should be irrelevant. But, if you were a known white supremacist and he was black, someone would probably say it was a hate crime, and you'd do double time.

If outcomes aren't even important, why have a process at all? Is the justice system just there for the hell of it?
I didn't say outcomes weren't important. I said they were immaterial to the discussion of the process.

I didn't say outcomes weren't important. I said they were immaterial to the discussion of the process.

How's that? It's all well and good to come up with a simple and elegant process to calculate 6factorial, but what good is it if it gives you 54 as a result?

Hate should not be a crime. We should only punish people for acting on hate.

How's that? It's all well and good to come up with a simple and elegant process to calculate 6factorial, but what good is it if it gives you 54 as a result?
Poor analogy. There's no demonstrably wrong answer in the legal system.

I want a system where there's no way a rational persoan familiar with relevant statutes could ever be found in violation of a law without having expected it in advance. That's my #1 concern. If a rational person is caught in such a circumstance (say the judge and jury decide that his behaviour really should have been prohibited), the system has failed.

I suppose that is an outcome. Avoiding ex post facto law is an outcome I want. I can guarantee that by severely restricting the process.