Monday, March 19, 2012

Why Does the Defendant's Motive Matter When the Prosecutor's Doesn't? Some Thoughts Based on the Dharun Ravi Verdict

By Mike Dorf


An important sticking point in the Dharun Ravi prosecution was the question of whether Ravi's actions invading Tyler Clementi's privacy were motivated by anti-gay bias.  I didn't closely follow the trial evidence but I did read the New Yorker story on Ravi a couple of months ago that gave some reason to doubt that Ravi is homophobic.  A friend of Ravi's said that Ravi is a "dick" who is "so much of a jerk that it may seem like he’s a homophobe but he’s not.”  Apparently, the jury didn't buy the jerk-but-not-a-homophobe defense (although an alternate juror apparently did).


Meanwhile, the Ravi case has led to renewed interest in an issue that has generated substantial controversy from time to time: Should the law punish hate-crimes more severely than otherwise comparable crimes motivated by more mundane impulses than illicit bias, such as revenge, anger or avarice?  In Wisconsin v. Mitchell the Supreme Court unanimously upheld a hate-crime statute against a free speech challenge on the ground that  laws routinely differentiate motives in assessing culpability.  The Court credited the State's argument that "bias motivated crimes" may be deemed worse than otherwise equivalent crimes because the former "are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest."  Some hate-crime critics remain unpersuaded but as a practical matter the debate about the legitimacy of hate-crime legislation is over.


Still, even if one thinks that hate-crime prosecutions are legitimate in general, there is at least the appearance of a double-standard in the Ravi case.  Some critics of the prosecution and verdict have complained that, although  Ravi was not in any way charged with causing Clementi's death, the prosecution was motivated by the fact that Clementi died.  Had Ravi engaged in the same behavior but Clementi had not been driven to suicide, the critics claim, Ravi probably wouldn't have been charged with any crime at all, much less had the book thrown at him.  Yet the state's motivation appears to be legally irrelevant.  Even if it could be shown that the government selected Ravi for prosecution because of Clementi's ensuing suicide, that would not invalidate the prosecution.  And so we have an asymmetry: Ravi's homophobic motive in invading Clementi's privacy makes Ravi more guilty, but the government's motive of "avenging" Clementi's death as the reason for bringing the prosecution does not matter.


How do I know the prosecution's motive doesn't matter?  Because in United States v. Armstrong, the Supreme Court said that ordinary equal protection standards apply to selective prosecution claims.  Selectively prosecuting based on a suspect classification like race is presumptively impermissible, although the Court in Armstrong made clear that it will be difficult to prove such a selective prosecution claim.  But in any event, where, as in the Ravi case, the alleged criterion used to trigger prosecution is not a suspect classification, mere rational basis scrutiny applies.  Is there a rational basis for the government to treat otherwise similar conduct differently because a death occurred in one case but not in the other (even if the defendant is not charged with causing the death)?  Sure.  The sound exercise of prosecutorial discretion will commonly target more harmful conduct rather than less harmful conduct, even though the perpetrators may be morally indistinguishable.


Put differently, we might understand a selective prosecution claim by Ravi as failing for the same sort of reason that one could not bring a selective prosecution objection to being charged with manslaughter rather than mere battery because one's victim happened to die.  The law constantly treats people who commit equally culpable acts unequally because one had the bad luck to cause more harm than the other.  If A drives 60 mph in a 45 mph zone, A may get a speeding ticket.  If B drives 60 mph in a 45 mph zone and, because he is speeding, B is unable to avoid killing a child who runs into the road, B may be charged with negligent homicide, which carries a much more substantial penalty than speeding does.


It's true that in the foregoing hypothetical, B is actually charged with causing the child's death, rather than--as supposedly happened in the Ravi case--charged with some other serious offense that he did commit but otherwise wouldn't have been charged for, because of the resulting death.  But that's hardly a morally salient distinction.


In the end, then, there is no real unfairness in saying that the prosecution's motive doesn't matter but Ravi's motive does.  Ravi's motive mattered because of the harms associated with hate crimes.  The prosecution's supposed motive does not matter because it's legitimate for the state to treat crimes that happen to cause more harm more seriously than crimes that happen to cause less harm.

8 comments:

AF said...

"It's true that in the foregoing hypothetical, B is actually charged with causing the child's death, rather than--as supposedly happened in the Ravi case--charged with some other serious offense that he did commit but otherwise wouldn't have been charged for, because of the resulting death. But that's hardly a morally salient distinction."

It is a morally salient decision, because in your hypothetical, the prosecution must prove beyond a reasonable doubt that the defendant caused the death, whereas in Ravi's case, the prosecution is not even attempting to do so.

A better analogy would be a driver who is speeding and narrowly misses a young woman in the street, who is unhurt but traumatized and commits suicide soon thereafter. The driver is then charged with reckless driving and sentenced to prison, which is allowed by statute but virtually never occurs. Such a prosecution probably wouldn't violate the equal protection clause either, but it wouldn't be fair.

Michael C. Dorf said...

AF: You are right that there is a morally salient procedural difference. I meant the statement you quote as a substantive matter, assuming the facts were as stated. And that is almost certainly true here. From everything we know, Ravi's acts were a but-for cause of Clementi's suicide, even though that doesn't entail legal responsibility for Clementi's death.

I also think there is a difference in foreseeability between the actual facts and your hypo. Suicide is not really a foreseeable consequence of speeding, whereas it is, or should have been, a foreseeable consequence of Ravi's actions--at least w/r/t moral responsibility, if not legal responsibility.

AF said...

I don't think it's fair to assume that Ravi's actions caused Clementi's death, when the prosecution decided that was impossible to prove. Moral responsibility, no less than legal responsibility, depends on the facts. The prosecution's decision not to charge Ravi with Clementi's death (coupled with the decision not to disclose Clementi's suicide notes) suggests that "everything we know" might not be the whole story.

In any event, I disagree that suicide was a reasonably foreseeable consequence of Ravi's actions based on what has been publicly reported. On the contrary, I'd argue that causing someone's death (one way or another) is a far more foreseeable consequence of speeding than of what Ravi did.

To me, the closest analogy to Ravi's conduct is the Myspace suicide of Megan Meier. In both cases, someone's unconscienably cruel behavior triggered the suicide of a teenager. In both cases, the cruelty was despicable and the death was tragic. But it just doesn't strike me as the kind of thing that should be addressed by criminal law -- precisely because the chain of causation from cruelty to suicide is so tenuous and complex.

Michael C. Dorf said...

Putting aside questions of proof and evidence--about which I have no committed view here--I think what we are uncovering may be a difference between AF and me towards the proposition that "you take your victim as you find him or her."

Sam Rickless said...

"The prosecution's supposed motive does not matter because it's legitimate for the state to treat crimes that happen to cause more harm more seriously than crimes that happen to cause less harm."

The state does, in fact, treat crimes that happen to cause more harm more seriously than crimes that happen to cause less harm. But it is not at all clear to me that this is *legitimate*. We have the following on videotape: X shoots at Y, the bullet is sure to kill Y if it reaches Y, but at the last second a bird flies into the path of the bullet and Y is unharmed. X is guilty of attempted murder, but not guilty of murder. Why should the penalty for attempted murder in this case be less severe than the penalty for murder? Retributively, X is as culpable as X would have been had the bullet killed Y. Deterrence-wise, murder and attempted murder do not differ: the extent to which we are interested in deterring attempted murder is the same as the extent to which we are interested in deterring murder.

The only reasonable argument I have ever seen for the view that there should be such a thing as legal luck is that, in many cases, the fact that X fails to harm Y is *evidence* that X is less culpable than X would have been if X had succeeded in harming Y. The bullet only grazed Y. Why? Perhaps because X had a last minute change of heart, or X wavered in his determination to harm Y, or X did not really intend to harm Y (perhaps X only intended to scare Y without harming Y), and so on. The car driven by the drunk driver only narrowly missed the child crossing the street. Why? Perhaps because the driver was not so inebriated that he couldn't find a way to steer away from the child. But surely there are many cases (at least in principle) in which the evidence, such as it is, excludes these sorts of possibilities. In such cases, I see no reason not to treat those who happen not to cause harm in the same way as those who happen to cause harm.

"The sound exercise of prosecutorial discretion will commonly target more harmful conduct rather than less harmful conduct, even though the perpetrators may be morally indistinguishable."

I just don't see this. Terrorist T1 places a bomb that kills 10 churchgoers. At the same time, terrorist T2 places an identical bomb in a similar church, but the bomb fails to go off only because of a fluky detonator malfunction. T1 and T2 are otherwise identical (same intentions, same motives, and so on). It *can't* be right to say that the sound exercise of prosecutorial discretion will involve the prosecution of T1 but not the prosecution of T2.

What about the Ravi case? The evidence appears to show that Ravi showed reckless disregard, possibly motivated by homophobia, for the emotional well-being of Clementi. At least partly because of what Ravi caused Clementi to suffer, Clementi took his own life. The relevant question, it seems to me, is whether the prosecutors would have gone after Ravi with the same zeal if Clementi's suicide attempt had, for some fluky reason, failed. It seems reasonable to suppose that they would not. There is therefore at least some reason to believe that the prosecutors engaged in illegitimate selective prosecution. Of course, this does not absolve Ravi: my view is that Ravi should have been prosecuted even if Clementi's suicide attempt had failed.

王小 said...

AF: you are proper that there may be critically a morally salient procedural difference. Sell Runescape GoldI meant the declaration you quotation just like a substantive matter, assuming the details are already as stated.Gold WOW Buy understanding that is surely virtually surely precise here. From every thing we know, Ravi's behaves are already a but-for reason for Clementi's suicide, even although that does not entail lawful responsibility for Clementi's death.

Dewaite Houwad said...

The sound exercise of prosecutorial discretion will commonly target more harmful conduct rather than less harmful conduct, even though the perpetrators may be morally indistinguishable.Windows 7 Key
Buy Windows 7 Key
Cheap Windows 7 Key

Chogavl Miller said...

That plastic bag comes with small dog collars house windows or maybe allow air through panels secretly to produce greatness and even breathability. All of the clippings happen to be moist cloth by way of golden decorations. You will also find the ordinary draw with the accurate Fitness instructor backpack, a nicely detailed metal arena coupled to the silver leather material ties and then producing a different pet supplies wholesale serialized telephone number. lovelonglong.com