Turning the tables

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   ACLU‏Verified account @ACLU May 8
   
   Federal hate crimes laws were passed to correct the centuries of inaction and injustice that too often was the response to violence based on immutable traits and identities, including race, gender, religion, sexual orientation, gender identity, and disability.
   44 replies114 retweets289 likes
   
   
   
   
   
   
   
   
   
   ACLU‏Verified account @ACLU May 8
   
   There's no possible interpretation where being a law enforcement officer fits that definition. Congress should vote this down quickly and decisively.
   35 replies98 retweets316 likes
   
   
   
   
   
   

These tweets were posted by the ACLU on May 8, 2018 as a reaction to a Senate bill that would classify violence against police officers as a hate crime. Such a law already exists in Louisiana.

Apparently the irony of the situation was lost on the leadership of the ACLU as this is just the latest logical extension of the push for hate crime legislation over the years. I've written before on why hate crime legislation should be found unconstitutional and how it's just a bad idea.

For every offense that someone wishes to attach the label "hate crime," a criminal act was already committed. If a person yells out a racist epithet and then shoots and kills the target of his ire, he's looking at a murder charge. There is no reason to try to enhance the sentence because of what he said beforehand.

With the right in power, the state's backlash against Black Lives Matter is in full force. There are plenty of dog whistles - from Blue Lives Matter to US flags with a blue stripe to ribbons to support law enforcement - about our everyday lives. The next step is to make it a hate crime to attack a police officer.

Never mind that assaulting a police officer is already a more serious offense that assaulting someone on the street. Never mind that killing a police officer makes you eligible to get the needle. No. We need a law that we can use against folks who have the temerity to stand up against police brutality and racist killings.

And this is how you do it. You give the same people who cower under the table when faced with charging a police officer for killing an unarmed black man yet another charge they can use against a person accused of assaulting a police officer.

Empty labels

In the early morning hours of June 12, forty-nine people were murdered in a nightclub in Orlando. Forty-nine lives lost, at least forty-nine families shattered.

One of the questions left dangling is whether that deadly massacre was terrorism or a hate crime. The answer is neither.

There is no such thing as terrorism. In the West we use the term terrorism to describe the use of violence to achieve political aims. Interestingly enough, that term is only used to describe those actions by groups in opposition to our government or an allied government. It is a politically charged word used to rally people to a certain political position.

If there were a legitimate definition (outside the realm of politics) for terrorism then the United States would be the world's biggest sponsor of terrorism. The US dropped atomic bombs on two populated cities in Japan in August 1945 in an attempt to persuade the Japanese people to push their leaders to surrendering. The death and devastation caused by the bombings was the act of violence. The goal was to achieve the political aim of forcing Japan to surrender.

During the Cold War the United States supported right-wing dictators and trained right-wing death squads in Guatemala, Honduras, Argentina and Chile (as well as plenty of other places around the world). These dictators and their minions used violence to force compliance with political and economic policies that benefited big business.

Today the United States fires missiles and drops bombs in the Middle East killing scores of innocent people in order to achieve its political aims.

But no one in this country calls it terrorism.

Hate crime legislation in this country is unconstitutional. The First Amendment gives all of us the right to spew forth whatever appalling or objectional speech we wish - so long as we don't incite violence.

We will never know why Omar Mateen did what he did that day because he was killed during the incident. But it doesn't matter why he did it. If he were being tried for murder the only relevant question would be did he shoot those folks intentionally or not. Why he pulled the trigger isn't relevant to determining whether or not he is guilty.

The forty-nine victims are dead. And they will remain dead whether or not Mr. Mateen killed them because he hated them or not.

The purpose of our criminal (in)justice system is not to determine what someone was thinking at the time they committed a certain act, it's to determine whether or not that person had a certain culpable mental state at the time of the act. Did he act intentionally, knowingly, recklessly or negligently? That should be the end of the inquiry.

Punishing someone for murder is one thing, punishing someone because of their constitutionally protected speech is something altogether different.

Criminalizing thoughts and speech

Frazier Glenn Cross is not a particularly nice person. He is a former grand dragon of the KKK and he's been charged with the murder of three folks in Missouri. Apparently he decided he wanted to kill some Jewish folk prior to Passover.

If Mr. Cross pulled the trigger and killed three people then he should be convicted of murder in a Missouri court. He should receive whatever punishment the court deems appropriate. So long as he is afforded due process of law, he will deserve whatever he gets in state court.

But los federales want to charge him with a hate crime. The government says that because he said he wanted to kill Jews that his sentence should be enhanced. Let's forget for a second that we have something called the First Amendment that protects our right to say things that others disagree with.

The ultimate irony, of course, is that none of the three people he killer were Jewish.

The federal hate crimes statute - and the hate crimes statutes in various states - are all appalling violations of the First Amendment. Mr. Cross should be punished for what he did this past weekend. Murder is still against the law in Missouri. Punishing him for what he was thinking - or what he said - is wrong.

The fact that a person spouts racist ideas before pulling the trigger doesn't change the outcome of his actions. He pulled a gun, aimed it and pulled the trigger. A person is dead because of it. Whether he said "Kill the Jews!" or "Kill the blacks!" or kill some other ethnic, religious or gender-based group doesn't matter. The only thing that matters is whether he pulled the trigger with the intent to kill someone.

We don't need to be in the position of policing thoughts and speech. We don't need to prosecute folks because of what they said or thought at the time. The only thing that should matter is what the person did given the chance.

Doing something

What Dharun Ravi did back in September 2010 was wrong. But what Middlesex County prosecutors did in response was worse.

There is not much dispute over the facts. Mr. Ravi set up a webcam to spy on his roommate's encounter with another man. Mr. Ravi sent out tweets inviting people to watch the video. Three days later his roommate, Tyler Clementi, leapt to his death from the George Washington Bridge.

One life was lost and a family was in mourning.

But, someone had to pay for it. And that someone, Middlesex County prosecutors decided, was Mr. Ravi, who was convicted last week on 15 counts (loosely) related to Mr. Clementi's death.

Mr. Ravi was charged with a multitude of counts ranging from invasion of privacy to lying to investigators to tampering with evidence to something New Jersey refers to as bias intimidation.

2C:16-1.  Bias Intimidation.
a.Bias Intimidation.  A person is guilty of the crime of bias intimidation if he commits, attempts to commit, conspires with another to commit, or threatens the immediate commission of an offense specified in chapters 11 through 18 of Title 2C of the New Jersey Statutes; N.J.S.2C:33-4; N.J.S.2C:39-3; N.J.S.2C:39-4 or N.J.S.2C:39-5,
(1)with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or
(2)knowing that the conduct constituting the offense would cause an individual or group of individuals to be intimidated because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or
(3)under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, or (b) the victim or the victim's property was selected to be the target of the offense because of the victim's race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.
b.Permissive inference concerning selection of targeted person or property.  Proof that the target of the underlying offense was selected by the defendant, or by another acting in concert with the defendant, because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity shall give rise to a permissive inference by the trier of fact that the defendant acted with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.
c.Grading.  Bias intimidation is a crime of the fourth degree if the underlying offense referred to in subsection a. is a disorderly persons offense or petty disorderly persons offense.  Otherwise, bias intimidation is a crime one degree higher than the most serious underlying crime referred to in subsection a., except that where the underlying crime is a crime of the first degree, bias intimidation is a first-degree crime and the defendant upon conviction thereof may, notwithstanding the provisions of paragraph (1) of subsection a. of N.J.S.2C:43-6, be sentenced to an ordinary term of imprisonment between 15 years and 30 years, with a presumptive term of 20 years.
d.Gender exemption in sexual offense prosecutions.  It shall not be a violation of subsection a. if the underlying criminal offense is a violation of chapter 14 of Title 
(1)with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or
(2)knowing that the conduct constituting the offense would cause an individual or group of individuals to be intimidated because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or
(3)under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, or (b) the victim or the victim's property was selected to be the target of the offense because of the victim's race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.
b.Permissive inference concerning selection of targeted person or property.  Proof that the target of the underlying offense was selected by the defendant, or by another acting in concert with the defendant, because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity shall give rise to a permissive inference by the trier of fact that the defendant acted with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.
c.Grading.  Bias intimidation is a crime of the fourth degree if the underlying offense referred to in subsection a. is a disorderly persons offense or petty disorderly persons offense.  Otherwise, bias intimidation is a crime one degree higher than the most serious underlying crime referred to in subsection a., except that where the underlying crime is a crime of the first degree, bias intimidation is a first-degree crime and the defendant upon conviction thereof may, notwithstanding the provisions of paragraph (1) of subsection a. of N.J.S.2C:43-6, be sentenced to an ordinary term of imprisonment between 15 years and 30 years, with a presumptive term of 20 years.
d.Gender exemption in sexual offense prosecutions.  It shall not be a violation of subsection a. if the underlying criminal offense is a violation of chapter 14 of Title 2C of the New Jersey Statutes and the circumstance specified in paragraph (1), (2) or (3) of subsection a. of this section is based solely upon the gender of the victim.
e.Merger.  Notwithstanding the provisions of N.J.S.2C:1-8 or any other provision of law, a conviction for bias intimidation shall not merge with a conviction of any of the underlying offenses referred to in subsection a. of this section, nor shall any conviction for such underlying offense merge with a conviction for bias intimidation.  The court shall impose separate sentences upon a conviction for bias intimidation and a conviction of any underlying offense.
f.Additional Penalties.  In addition to any fine imposed pursuant to N.J.S.2C:43-3 or any term of imprisonment imposed pursuant to N.J.S.2C:43-6, a court may order a person convicted of bias intimidation to one or more of the following:
(1)complete a class or program on sensitivity to diverse communities, or other similar training in the area of civil rights;
(2)complete a counseling program intended to reduce the tendency toward violent and antisocial behavior; and
(3)make payments or other compensation to a community-based program or local agency that provides services to victims of bias intimidation. 
g.As used in this section "gender identity or expression" means having or being perceived as having a gender related identity or expression whether or not stereotypically associated with a person's assigned sex at birth.
h.It shall not be a defense to a prosecution for a crime under this section that the defendant was mistaken as to the race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity of the victim.
e.Merger.  Notwithstanding the provisions of N.J.S.2C:1-8 or any other provision of law, a conviction for bias intimidation shall not merge with a conviction of any of the underlying offenses referred to in subsection a. of this section, nor shall any conviction for such underlying offense merge with a conviction for bias intimidation.  The court shall impose separate sentences upon a conviction for bias intimidation and a conviction of any underlying offense.
f.Additional Penalties.  In addition to any fine imposed pursuant to N.J.S.2C:43-3 or any term of imprisonment imposed pursuant to N.J.S.2C:43-6, a court may order a person convicted of bias intimidation to one or more of the following:
(1)complete a class or program on sensitivity to diverse communities, or other similar training in the area of civil rights; 
(2)complete a counseling program intended to reduce the tendency toward violent and antisocial behavior; and 
(3)make payments or other compensation to a community-based program or local agency that provides services to victims of bias intimidation.  
g.As used in this section "gender identity or expression" means having or being perceived as having a gender related identity or expression whether or not stereotypically associated with a person's assigned sex at birth.
h.It shall not be a defense to a prosecution for a crime under this section that the defendant was mistaken as to the race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity of the victim. 

The thrust of the law is to criminalize behavior that serves to intimidate someone on the basis of race, sex, national origin, sexual orientation, disability and whatever new groups the state legislature comes up with in order to curry favor with the voters.

But is that what Mr. Ravi intended to do? Did Mr. Clementi feel intimidated? And did Mr. Ravi's actions cause Mr. Clementi to commit suicide?

We can never know the answers to the final two questions.

But Middlesex County prosecutor Bruce Kaplan apparently has some special form of mental telepathy that allows him to communicate with the dead. And, by use of his Oujia board, Mr. Kaplan was able to determine that Mr. Ravi had intimidated Mr. Clementi to the point that Mr. Clementi had no option but to take his own life. Then came the piling on of charges that assume a crime had even been committed in the first place.

Here's what the New York Times had to say on the topic of reading minds:

Without Mr. Clementi to speak for himself, that last question was perhaps the most difficult to determine, and jurors struggled with it. 

“That was the hardest because you really can’t get into someone’s head,” said one, Bruno Ferreira, as he left the court. The jury deliberated longest — for well more than an hour, he said — on the bias intimidation charge. 

Mr. Ferreira said he ultimately voted guilty on the bias intimidation charge because Mr. Ravi had sent multiple Twitter messages about Mr. Clementi. 

“They were being done twice, not just one day,” he said. 

Another juror, Kashad Leverett, himself a student and a Twitter user, said he could relate to Mr. Ravi’s constant stream of Twitter and text messages.

And there you have the elephant sitting in the middle of the room being ignored. "...[Y]ou can't really get into someone's head." How true, Mr. Ferreira, how very true.

But, notwithstanding the fact that we can never know what either Mr. Ravi or Mr. Clementi were thinking, a jury decided that Mr. Ravi intended to intimidate Mr. Clementi because he was gay and that Mr. Clementi was intimated by Mr. Ravi's actions.

Does whether or not Mr. Ravi intended to intimidate Mr. Clementi make you feel any different about what happened? Should it?

It is debatable whether any crime took place that night. But that never stopped the state from stepping in when "something has to be done." After his conviction last week on all 15 counts, Mr. Ravi is looking at up to 5-10 years in prison on each count. That's a stiff penalty for a young man who was never charged with causing Mr. Clementi's death.

The death of any young person is a tragedy. No parent should ever have to bury their child. But we must also resist the urge of "doing something" because society is upset. Nothing is going to bring back Tyler Clementi. Nothing is going to ease his parents' pain and loss. Convicting Mr. Ravi of a hate crime isn't going to change what happened. Putting Mr. Ravi behind bars serves no purpose other than making society feel better at the expense of destroying another young person.

Well, that and providing a political boost for local officials.