THE BLOG
06/07/2009 05:12 am ET Updated May 25, 2011

I Hate Hate Crimes

Hate crime. Hate crime. It's redundant. Almost tautological. And now an indelible addition to our national lexicon. I hate and loathe the concept as it is patently unconstitutional, un-American and antithetical to a quintessential right -- the freedom to hate, loathe, despise and detest anything or anyone.

It's a popular cause for politicians, and to some a no-brainer. After all, who could possibly be for hate crimes? Remember, the better a proposed law sounds, the more reason to beware. Examples: No Child Left Behind and the Patriot Act. The late Johnnie Cochran and I had many a heated debate about this issue. The motivation for such legislation may have been noble. The idea was to give federal courts concomitant jurisdiction anent cases that were not prosecuted and ignored at the state level. I've no problem with that. The federal courts enjoy parallel jurisdiction with the states on many issues. Just don't prosecute someone for what they think or whom they hate. Get them for what they did.

But first, the rudiments.

Crim Law 101

A crime is an offense that is subject to possible and potential incarceration. In specific intent crimes, the government must prove intent. Duh. In other words, that the defendant intended this crime to be committed; we care not of her motivation. Why someone committed a crime is relevant and useful, but not necessary. Why you robbed, killed, raped or destroyed property is irrelevant to the prosecution of a crime. Did you intend to do it? That was fine, until the hate crime.

It's American to hate . . . the right things.

Hate is protected speech, so long as you don't act criminally on that hate. That's a crime. And moreover, it's a protected thought. You can despise Aleuts all the live long day and that's okey-dokey, just don't hit them or melt their igloo because of it. Those are crimes already cognizable at law. As Ollie Holmes quipped, "The right to swing my fist ends where the other man's nose begins." I've a friend who hates the Yankees. And deservedly so, I must add.

The Matthew Shepard Hate Crimes Prevention Act

On April 28, Senators Edward M. Kennedy and Patrick Leahy reintroduced the Matthew Shepard Hate Crimes Prevention Act, intended to "strengthen the ability of federal, state, local, and tribal governments to investigate and prosecute hate crimes based on race, color, national origin, religion, sexual orientation, gender, gender identity or disability." The bill refers to the tragic 1998 murder of Mr. Shepard because of his sexual orientation.

Why Mr. Shepard was murdered is irrelevant. The motivation of the murderers is inapposite. Most are not surprised to find out that some form of hate or animus usually accompanies most murder. I wholeheartedly endorse prosecuting anyone who unlawfully takes the life of another for any reason. And while we're at it, I don't believe that crimes should be enhanced or charges aggravated because of victim status, e.g. a police officer. Isn't the senseless loss of a nun's or plumber's life just as valid, just as egregious? This again goes to show how unnecessary the parsing of criminal statutes needlessly complicates what is a very simple concept: penalizing intentional criminal victimization.

What about a "love crime"?

Following the logic that enmity expressed or that which motivates a crime is relevant in aggravating the severity of an offense, could one not argue that an expression of love should mitigate an offense? If I were to say "I love you" and then flatten someone, should that crime be reduced? After all, it was a love crime.

It's the thought that counts.

Remember Tom Cruise in 2002's "Minority Report"? Me neither, but the idea of thought police is most intriguing. This film dealt with the pythonic police as prescient "precogs," able to know that someone was about to commit a crime. This fanciful film frightens me less than where we're now. At least a crime in the film was in fact going to be committed, absent mere thought or wish alone. Now, the mere thought alone is the crime. The thought accompanies the crime itself, and is as much of the crime as the underlying act.

To "Catch a Predator"

Speaking of forgettable shows, I most admit that I enjoyed MSNBC's foray into the inane with this beaut of a show hosted by Chris Hansen. It detailed the investigation and arrest of perverts who thought they were going to have sex with minors. They thought they were.

First, I have no time or sympathy for any dirtbag who preys on kids. Period. (My, how gallant of me.) Ephebophiles, pederasts, pedophiles and all you garden variety sickos beware! In my mind, if you're caught with a kid, the government should go medieval. But, let me caution against the overuse and misuse of the aforementioned terms: they denote desire and preference. Desiring and preferring are not against the law. Yet.

So, back to Chris. His show captured men (never women, hmm?) who drove hundreds of miles to meet someone they met online who they thought was a minor. It turns out that sexycat69 was a 45 year-old Palm Beach County detective named Chick. There was in fact no minor. There was no victim. But the perv perp believed there was so he was arrested. When he asked to confront his "victim" pursuant to that pesky Sixth Amendment, the victim was his imagination. East your heart out, George Orwell.

Stick 'em up!

Under this strained, and accepted, logic, assume arguendo the folllowing. A blind man believes someone is standing in front of him, but no one is. The sightless chap pulls out a pistol and demands money from his apparition. Under this new thought crime logic, the gendarmes can charge him with armed robbery. He thought there was a victim. He thought he was robbing someone. Absurd, right? Not if thought crimes develop more.

Is rape a hate crime?

When the crime of rape is committed, is, say, a female victim selected because of her gender? Or is that a necessary and logical component of sexual battery? Were a robber to target an elderly victim for a purse-snatching, is that a hate crime against the senescent or was the victim selected by virtue of his frailty and weakness and inability to resist? What if there are many reasons for victim selection, e.g. a gay, elderly woman is selected to be robbed. The assailant expresses a loathing of lesbians and women but frailty was the object motive? Are we to partition the degree of hate exhibited? How do we distinguish between victim animus and victim opportunism?

The answer? Sentencing.

What to do? Simple. When a criminal defendant appears before a trial judge for sentencing, a judge may and should take into account the particular facts of the offense and their impact upon the victim(s). If a cross is burned on the front lawn of an African-American family, a crime that is cognizable and punishable at law as inter alia trespass, arson, criminal mischief, vandalism, perhaps even burglary (via a common law curtilage theory), a judge may and should take into consideration a number of factors. What was the victim impact? What were the particular injuries or indignities suffered because of the crime and not the defendant's thoughts, hates or inclinations? Assaulting John Cena is different from from assaulting Maude Frickert. No two crimes are alike when viewed vis-à-vis the victim(s).

So there you have it. Charge and convict people because of what they do, not what they meant or wished or hoped or dreamed of and/or for.

Or merely thought.