Thursday, June 21, 2007

Do “Hate” Crimes Have to Involve Hatred?

Earlier this week, the New York Times ran a story about a case that is unfolding in the New York courts. Three men – Anthony Fortunato, John Fox, and Ilya Shurov – have been indicted for murder under the state Hate Crimes Act in connection with the killing of twenty-nine-year-old Michael Sandy. The three defendants allegedly entered a gay chat room to find a robbery target, selected Sandy in that chat room, and lured their prey into meeting with them at a deserted spot. They stand accused of subsequently beating Sandy and chasing him into traffic, where he sustained injuries that led to his death in the hospital.

The defense is asking the judge who approved the indictment, Justice Jill Konviser-Levine, to dismiss the hate-crime-enhanced murder charges, on the ground that there is no evidence that the defendants hated gay people. The prosecution responds that unlike other states’ hate crime legislation, the New York Hate Crime law does not require hatred or animosity toward the group from which a victim is selected.

The relevant language of the law provides for longer sentences when a defendant was motivated to select her victim in whole or substantial part “because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of [the victim].”

How does one interpret the language of the statute? On its face, it appears to cover the decision to target a person because he is gay, even if the “belief” regarding gay people has to do – as defense attorneys claim here – with opportunism rather than hatred. According to the defense, the choice of a gay victim reflected a belief that a gay man would be more willing to meet in a deserted spot, more likely to show up alone and to be in possession of money or drugs, and less likely to resist attempts to rob him. If hate need not be proved, defense attorneys add, one could classify crimes against the elderly, women, and immigrants – selected for their perceived fearfulness and inability to fight off assailants – as hate crimes.

The dispute between the defense and prosecution seems squarely to raise the question of what is the essential point of hate crime statutes. If the point is to address “hatred” of particular groups, as the word “hate” in the title suggests, then prosecuting a robber for picking old women as easy targets would seem misconceived, inappropriately exposing garden-variety robbers to enhanced sentences. It is natural for criminals more generally to choose a victim who they believe will offer the greatest payoff at the lowest risk. That stereotypes play a role in guiding such choices does not make them hate-motivated, in the way that a lynching is.

One might conceive of hate crime statutes differently, however, as addressing something broader than group-directed hatred. They may be about extending added protection against (and hence punishment for) crimes that discriminate – for whatever reason – on the basis of enumerated characteristics. The hate crime statute, if read this way, represents a recognition of a distinct harm in being targeted as a crime victim because you are a member of a particular group, much in the way that anti-discrimination law conceives of adverse employment decisions on the basis of race or sex to be a distinct harm.

When an employer decides to fire an employee because of the latter’s race, it may be out of the belief that people in particular racial groups are less intelligent or able than people in other racial groups. A holder of such a belief does not necessarily feel any hatred or animosity toward the perceived “inferior” group. Similarly, an employer who refuses to promote women because they believe women’s priority will be their families rather than their job does not necessarily “hate” women, but he or she does still discriminate against them on the basis of sex. As a society, we believe that such discrimination is qualitatively different from, and worse than, decisions (to terminate, to fail to promote, and to rob or kill) that have nothing to do with invidious classifications.

Perhaps the ambiguity lies in the statute’s use of the word “hate” in “hate crime.” Maybe what is meant, at least in New York, is that the crime targets people on the basis of a category that is frequently associated with invidious hatred. It is, for example, possibly because of a more generalized hatred against gay people (and the stereotypes that have developed as part of that hatred) that a group of men planning a robbery might be led to believe that a gay chat room would be a good place to find a compliant, lonely, and cooperative victim. That they might do so out of greed combined with stereotypical thinking rather than out of hatred does not alter the reality that they have discriminated against a man because he is gay.


Sobek said...

"an employer who refuses to promote women because they believe women’s priority will be their families rather than their job does not necessarily “hate” women, but he or she does still discriminate against them on the basis of sex."

True, but anti-discrimination statutes are never passed as "hate-based discrimination" statutes. It's discrimination, regardless of motive.

My view of the case is that the enhancement should apply, under the general rule that titles of statutes are not used in statutory interpretation. The section of the statute you quoted does not use the word "hate." It just talks about selection based on membership (real or perceived) in a group.

I would allow the prosecution to go forward as a hate crime prosecution and let the legislature amend if it sees fit.

egarber said...

I'm a little uncomfortable with the idea that acting on a mere stereotypical belief constitutes grounds for additional punishment.

To me, a good hate crimes bill will establish a higher bar -- something like "intent to oppress and intimidate a group." That way, the aggravating factor is clear, in that other members of the target group have something specific to fear that's unique to them.

I know you can make a similar argument about stereotyping to stack the odds in your favor as a criminal.And I can certainly see the discrimination argument, where you can say it's the same thing as firing a woman because of stereotyping.

But at the same time, I have to ask, suppose a thief profiled white families because he figured they were statistically more likely to have expensive homes in the suburbs, with lots of goodies. Is that profiling really something that should augment a sentence?

Sobek said...

"To me, a good hate crimes bill will establish a higher bar..."

See, there's an unanswered question here: whether we're discussing a hypothetical hate crimes statute, or the statute at issue in this case. The latter is the easier question, because in this case (from my reading of Prof. Colb's column, given that I didn't read the NYT piece or the NY statute) it looks like the statute is broad enough to cover "discrimination" -- which doesn't necessarily connote hatred -- and not just hate.

egarber touches on a completely separate issue, which is how a hate crimes statute should be drafted.

egarber said...

See, there's an unanswered question here: whether we're discussing a hypothetical hate crimes statute, or the statute at issue in this case.

Good question. I think these debates offer both; the implications of a *particular* statute can greatly inform the larger debate about future laws, or refinement of existing ones.

egarber said...

However, I'm not sure additional enhancement of the crime is warranted, or constitutional due to first amendment rights to imagine committing a crime unmolested by the state.

I sort of agree. But I don't think a well written hate crimes law punishes first amendment rights. Just like "intent to cause severe harm" can be a factor that transforms assualt into *aggravated* assualt, I think "intent to intimidate or oppress a group" is a provable aggravating factor that should enhance a sentence.

In my scenario, it's not merely thinking about gay people; it's a heightened form of aggression that embeds additional intent (beyond harming the individual).

There are all sorts of laws that take "intent" into account when determining severity. Why can't society add racial intimidation (for instance) to the list?

md said...

Exactly how is it "discrimination" to target the victim of a crime because of certain personal qualities that might make that victim more susceptible of that crime? Does a child molester "discriminate" against his child victim? Does a mugger "discriminate" against an unsuspecting jogger in Central Park?

With all due respect, that pretty much strains the meaning of discrimination beyond any ordinary usage.

egarber said...

the criminals in this case did nothing other than select the easiest target for the least risk.

I think we probably agree with regard to the particular statute in question here. My goal was to define what I think is a workable version. Sobek pointed this out earlier -- that there really are two questions floating around.

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