Argument: Hate crime laws tie the hands of judges

Issue Report: Hate crime laws


  • Michael S. Rozeff. “The Case Against Hate-Crime Laws”. LewRockwell. April 18th, 2006 – “Suppose hatred is the sole motivation of a crime. So what? A crime is a crime as far as the victim is concerned. Its severity is what it is and justice must deal with that fact, no matter what the motivation was. As against this, motivation or similar considerations seem to be important in many areas of law. More accurately, who the perpetrator is and what his background is may shed light on whether the crimes were premeditated or not. If a drunken driver kills a child, the child is just as dead as if a serial killer did the deed. The state’s law distinguishes these crimes. Should it? Should an accident count the same as an intentional crime? Probably not. But while there is no guilty mind (no intent or no malice aforethought) in a drunk driver who kills, there is severe damage, as bad as it can get, and justice has to consider both. These cases are not easy. Perhaps the best answer is to let the jury decide the remedies. Don’t let legislators tie the hands of jurors.”
‘But now, charging the same old second-degree assault as a bias crime, the prosecution’ — which determines what the charge is—’can essentially remove the judge from the plea-bargaining process. Now, instead of ordering the [defendant] to perform community service and comply with the probation department for the next five years, a judge can only offer a prison sentence of three and a half years or more. Anything less is now in the hands of the district attorney.’ (Emphasis added). No probation, no community service.
Feige added: ‘Judges are more likely to craft a penalty that fits the crime and the person—regardless of whether it bolsters the ‘tough-on-crime’ reputation’ of prosecutors who have to be reelected to stay in office.
Under the new bias law, the sentence for each category of crime has been increased. For example, a second-degree assault, like the one in the barroom fight described above, is ordinarily classified as a D violent felony, which can bring up to seven years in prison for someone without a previous felony conviction.
Now, if someone is charged and convicted of a hate crime, that D violent felony becomes a C violent felony, which brings a sentence of between three and a half and 15 years. And under existing state law, there are also mandatory minimum penalties, which increase as the categories are bumped up under the hate crimes law.
Accordingly, Feige continued, ‘Armed with draconian penalties, prosecutors threaten to charge a defendant in a questionable or inappropriate case with bias on top of an already existing crime. Assistant district attorneys overcharge cases to get leverage over defendants to scare them into pleading guilty.’ The assistant district attorneys know—in a city or borough where there is much public approval of socking it to perpetrators of hate crimes—that there will be mandatory minimum sentences that will lock in the judge.”