U.S. House Minority Leader
Rep. John Boehner (R-OH)
October 3, 2008
Photo: Alex Wong/Getty Images
This is what we must ask in light of recent comments from House Republican Leader John Boehner. He expressed the expected opposition to the passage of a bill in the House of Representatives that expands hate crime laws, making it a federal crime to assault people because of their sexual orientation. What was unexpected was his rationale: hate crimes laws protecting gays are bad because homosexuality is not an "immutable characteristic" but hate crimes laws protecting religion are good because religion is an "immutable characteristic." Uhhh.... what?
"All violent crimes should be prosecuted vigorously, no matter what the circumstance," he said. "The Democrats' 'thought crimes' legislation, however, places a higher value on some lives than others. Republicans believe that all lives are created equal, and should be defended with equal vigilance."
Based on that statement, CBSNews.com contacted Boehner's office to find out if the minority leader opposes all hate crimes legislation. The law as it now stands offers protections based on race, color, religion and national origin.
In an email, Boehner spokesman Kevin Smith said Boehner "supports existing federal protections (based on race, religion, gender, etc) based on immutable characteristics."
It should be noted that the current law does not include gender, though the expanded legislation would cover gender as well as sexual orientation, gender identity and disability.
Source: CBS News
Since when has religion been an immutable characteristic? I realize that conservative Christians are generally in denial about sexual orientation being something you are born with, but I've never encountered a Christian of any sort who thought that religion was in-born and unchangeable. If they did, they'd have to stop proselytizing and I don't see that happening any time soon. Although in complete denial about reality, there is a sense in which this position is necessitated by conservatives' opposition to hate crimes laws: their arguments for why sexual orientation shouldn't be covered by hate crimes laws just won't work unless religion can be classified like race and gender. Thus they are ideologically bound to be in denial.
Conservative Christians are only able to escape this bind if they oppose hate crimes laws entirely, not just for gays, and some are willing to take this step. It's not a popular position to adopt because it only expands the divide between the Republican Party and minorities -- when was the last time you saw a Republican try to explain to a black audience why hate crimes laws that cover race are a bad idea and blacks should vote Republican anyway?
Even here, though, consistency is sacrificed for ideology. They oppose using statements expressing bigotry as a basis for enhancing a person's sentence for murder or assault, but they don't oppose statements expressing intent to murder or commit assault as a basis for enhancing a person's sentence. What's more, they have actively favor using political statements as a basis for enhancing a person's sentence -- but they call it "anti-terrorist legislation" rather than "hate crimes laws."
Enhanced sentences for political motives is being tough on crime when the people being sentenced are Muslims who oppose Western liberalism and trying to intimidate their opponents. Enhanced sentences for for political motives is "thought crime" when the people being sentenced are whites who oppose race mixing and trying to intimidate blacks. These are both cases terrorism, but it's just a coincidence that these contradictory stances happen to benefit whites at the expense of minorities. No, it doesn't make sense but this is what passes for "serious" political thought among conservative Christians today.
I was called to jury duty several years ago in Texas. I did not make the jury–but in the questioning of the jury pool, some information was given to us, and we were questioned. One thing I recall clearly was that we were told that in our state, if someone mugs you, and you are over a particular age, the penalty is MUCH stiffer–IF you cause the person “pain”–which was defined pretty much as any physical discomfort (anything not emotional), but not necessarily real injury (like a broken arm). I don’t recall the detailed caps, but it was extreme, something like 7 vs. 20 years. I raised a hand and said, “Isn’t that age discrimination? Are you seriously saying that if someone breaks my legs, they get 7 years, tops, but if they cause me to twist my ankle and I’m 65+, they do more than double? How is that not age discrimination?”
Nobody in that room understood my concern. And I felt like a jerk even asking because it sounds like I have something against old people, which I don’t. And I don’t want people to target them anymore than I want to see a 10-year-old targeted. But I thought the law was supposed to provide equal protections to people regardless of things like age, gender, religion, etc.
BUT, let’s say someone demonstrates to me (which they did not, but let’s say) that older people are more often targeted than, for example, the disabled. So, someone is more likely to grab a purse from an elderly woman than a woman in a wheelchair or any other woman for that matter. I can see a point to beefing up protection for groups that are known targets. And I would bow to the SCOTUS as to whether that’s OK or not.
But it’s my understanding that the groups listed in the extra protection clauses are there due to the fact that we know violence IS and HAS BEEN targeted at them DUE TO these issues about them whether they are inborn (such as race or gender) or chosen (such as religious affiliation).
Rights in the Constitution often are read between the lines. For example, the document nowhere says “right to life.” But it does say the government cannot deprive any person of their life without due process. I can’t think of any reason it is not someone’s “right” to be gay (that is that the Constitution does not grant government the authority to outlaw that–even though I believe we still have antiquated laws on the books about what you can and can’t do in bed; I question their Constitutionality). And the law should provide equal protections. If we are going to protect groups who are targeted due to choices or inherent attributes, and SCOTUS says that’s OK, then I don’t really see that such protections should NOT be extended to any group that can be shown to be targeted for particular hatred and violence for something they have every “right” (by Constitutional law) to be doing. And gays absolutely are in that category.
But to claim religion is immutable, I have to agree with Austin. My mother was Catholic turned fundamentalist. I was fundamentalist turned atheist. How “immutable” is that?
tracieh said:
Personally, hate crime legislation has left a proverbial bad taste in my mouth. As much as I hate to use this phrase, due to its use by certain groups, it does strike me as thought crime in many ways. However, I can see the point tracieh makes above. If a particular group of people are statistically targeted for certain crimes more often than any other group there could be a case for increasing the punishment to bestow further protection to that group.
This criticism only makes sense if “thought” is being punished which is not the case — what’s happening is that the punishment for some other crime is being enhanced based upon one’s motivation and that motivation is being discerned based upon evidence from what one says, displays, expresses, etc.
There is nothing unusual or new about this — it’s been a standard part of criminal law for centuries. All that’s new is taking into account the motive of seeking to terrorize, intimidate, oppress, and bully some class of people which have suffered such experiences for a long time.
He has a point. i agree with “All violent crimes should be prosecuted vigorously, no matter what the circumstance,”
I also agree with his statement : “The Democrats’ ‘thought crimes’ legislation, however, places a higher value on some lives than others. Republicans believe that all lives are created equal, and should be defended with equal vigilance.”
but this seems to suggest a strong disagreement with any hate crime legislation and laying the blame for it with the democrats. That is crystal clear.
but then when “CBSNews.com contacted Boehner’s office to find out if the minority leader opposes all hate crimes legislation.” we find that he DOESN’T oppose it! eh ? How can this make any sense at all ? Is there a “logic and its application” book at republican HQ hidden away in a locked cupboard?
tracieh: i have real trouble imagining you as any kind of fundamentalist.
It’s strange how obvious it is to many of us that it is unfair for a God to punish people for what they think rather than what they do, yet so elusive to some of us that it is equally unjust for a court to do so. A person’s opinions can serve to establish their motive for a crime, using them to establish their punishment is a different matter. If you want to protect a group by erecting harsher punishments for those who commit crimes against them, that is one thing (although better police protection for them might be more effective), punishing anti-semitic Peter more harshly for assaulting a Jew who bumps into him than ‘merely-violent’ Paul for assaulting a Jew who bumps into him is punishment for thought and speech. Any country lets its people hold opinions it approves of, a free country lets its people hold any opinions they choose.
Austin- I understand what you are saying but it still seems to me that the fact that the punishment is using the motivation for the crime to increase the penality indicates that the “thoughts” behind it are also being punished?
No, the punishment for the crime (murder, assault) is being enhanced (or mitigated) based upon factors like motive, context, etc.
The punishment for planning in advance to kill you for money differs from the punishment for killing you in a fit of rage because you crashed into my car. You’re still dead either way, but the punishments are different. In what way, though, were my “thoughts” punished? They weren’t, nor has anyone (to my knowledge) ever suggested that they might be.
The same act (killing) is punished in different ways because we recognize that circumstances and motives affect your levels of culpability, the need to punish, the need to protect society, etc.
If killing you has the intent and/or effect of terrorizing an entire community (religious, ethnic, racial, etc.), then that is punished more than if the intent was simply my own inability to control my anger. I’m not being punished for my thoughts, but rather for what I’ve done or tried to do.
If I pay an undercover police officer to kill you, that’s a crime — but what have I actually done? What, aside from my thoughts and desires, has been expressed? An overt act is usually required for conspiracy laws to apply, but that act itself doesn’t have to be a crime. Giving money to a person is not a crime, but thinking and saying “kill Al for me” makes it a crime. So is that a “thought crime”? Of course not.
People misuse the concept “thought crime” horribly. What we have been thinking — our intentions, desires, motivations, etc. — can be and are introduced as evidence, as mitigating factors, and as exacerbating factors all the time. No one wants to change this because our state of mind at moment of some action is crucial in determining levels of guilt, innocence, and culpability.
If it’s wrong to introduce a motive as an exacerbating factor (intent to profit, intent to terrorize), then it must be equally wrong to introduce a motive as a mitigating factor (messed up intent to help, only intended to scare). In such a world, every killing of a human being would be the same level of murder. There would be no first, second, or third degree murder. There would be no manslaughter. There would be no “justifiable homicide,” since that requires testimony about your intention and state of mind.
Austin raises two interesting points, one of which I agree with an one of which I don’t. He brings up terrorism, whether intended or effective, which is certainly a prima facie crime. The question then becomes whether a Nazi who terrorizes a Jewish neigborhood should get an extra ten years over someone who terrorizes a Jewish neighborhood for financial gain or because of a personal grudge. All three possess intent to harm and terrorize a neighborhood, one has philosophical and political opinions repugnant to the majority, and therefore is subjected to addional punishment. It is not wrong to introduce motive as a factor in punishment, it is wrong to introduce an individual’s opinions on politics, philosophy, culture, or religion as a factor in punishment. Those things may be relevant in establishing motive and premeditation, but when it comes to punishment that is as far as it should go.
Free speech does not include contractual speech: if I engage in a verbal contract with someone I am obliged to carry out my end, at least if they can prove I said it; and if I verbally contract with someone to commit a crime, I have engaged in the crime of conspiracy. Conspirators are not punished for speaking their mind, they are punished for taking steps with the intent and likely result of crime. Note the difference in punishment between merely asking someone to kill for you (who does not)and also giving them money to do so.
I know I am dividing finely here, but I think it is important. People of very different beliefs can have identical intent. Given the same intent, differential punishment based on worldview is punishment based on the beliefs of the perpetrator. It’s not that big a step from differential punishment to punishment, period. It has been common throughout history, and it doesn’t bear repeating.
You’re making a mistaken here regarding terrorism: the “crime” of terrorism is the intent to terrorize and this is used to increase a punishment for other, traditional crimes like vandalism, arson, assault, murder. If you agree that terrorism “is certainly a prima facie crime,” and since terrorism (in a legal context) is an attempt to achieve some political goal through violence, then you have basically given away your argument.
But I don’t think that’s what you intended to do, is it? I think you’re conflating “terrorism” (the motive) with the terroristic acts (vandalism, arson). The difference between terrorism and traditional arson is that the former burns down a house to achieve a political, social, or cultural goal (drive off Jews) whereas the latter is just interested in the insurance money or kicks.
The for-profit vandal gets a harsher sentence than the teenagers who are out for kicks because of his motive, just as the for-profit murderer gets a harsher sentence than someone who committed manslaughter. You don’t appear to disagree with this, even if the only difference is one of motive.
You do, however, appear to disagree with the Nazi terrorist getting a harsher sentence than the for-profit vandal and the reason appears to be that the motive now is political. This means that you want to make political, social, or cultural motives “off limits” as motives that can be considered as exacerbating factors. But why? Why is it OK to use the motive “he wants to make money” as a reason for worse punishment, but not the motive “he wants to make all Jews afraid, feel inferior, and hopefully leave”?
And when their political opinions are evidence of motive?
It’s not the steps being taken which are punished (unless they are independent crimes themselves, like obtaining weapons); clear steps are required to demonstrate that there is a real conspiracy rather than idle talk. What’s being punished in the conspiracy to commit a crime, even if the steps taken are technically legal. Words, thoughts, writings, books, etc, are used as evidence for what the conspiracy is about, what its goals are, etc.
If you and I talk about committing murder, that’s a conspiracy but not one the police can act upon unless we take positive steps towards that goal. If we legally purchase weapons, legally buy books on how to bet a hitman, and legally obtain information about the habits of our target, then the police can make a case against us. All of our actions were perfectly legal, but all can be introduced as evidence that our talk about murder was serious, not joking, and our words will be introduced as evidence of an intent to murder, not an intent to enjoy some leisure reading and safe target practice.
If we are also found with a plethora of anti-Semitic and White Supremacist material, some created by us, then there might also be a hate-crime or terrorism case to be made against us. Once again, that material could be introduced as evidence of our intent — an intent to attack an entire community, not just one person.
So we have two parallel situations: expressed thoughts being used as evidence of motive or intent.
True, but you don’t give an example of such a situation, even though I think that was your goal. The Nazi and the for-profit vandal don’t have “identical intent.” They both intend to harm and terrorize a neighborhood, but you can’t claim that this is a full and complete description of their intent.
Their methods and acts might be identical, but their intent is not.
And since the intent is not the same, then differential punishment is not punishment of the different worldview. Instead, the differential punishment is punishment based on intent, with the worldview introduced as evidence of that intent.
Austin- I never said that motive should be disregarded when it comes to crime. However, in my mind the punishment should generally be based on the crime itself, not the motive behind it. In the case of murder, whether a man assaults and kills another man because the other man was gay, was sleeping with the first man’s wife or simply carried a boatload of cash on him matters less than whether the crime was planned out in advance or done in the heat of the moment. That’s the difference between things like first and second degree murder and voluntary and involuntary manslaughter, not the motive.
That being said, I can see upping the severity of the punishment for a crime if it is shown that a particular group is consistently being targeted as victims of certain crimes. When one group is consistently targeted it necessarily pulls limited resources, such as law enforcement agents, investigative agents and courts resources, away from other areas. This could be an effective deterrent to that.
I know. But once one admits that motive should be admitted, suddenly excluding political motives is tough.
It’s standard to admit motives as exacerbating or mitigating factors. That’s the issue here.
Do you honestly and truly not recognize that the difference between the first and second groups is basically motives? Planning in advance is part of one sort of motive; doing it in the heat of the moment is another sort of motive. In law, your motive is a need or desire that causes you to act. Motive is never part of the actual crime, but is instead used to establish your intent which is part of the crime. You describe two different groupings that differ by motives — the first group has certain motives which establish certain intents while the second group has different motives that can establish different intents — then you say that what matters is not motives..
If a prosecutor is trying to prove that a person planned out a killing for money, and didn’t kill in the heat of the moment, establishing particular motives to prove particular intents is absolutely crucial. Being able to prove one motive rather than another may be the difference between a conviction for first degree murder and a conviction on manslaughter. Or an acquittal.
So, you can see using motive as an exacerbating factor in determining a punishment. Which is what happens when a murder is classified with terrorism or with hate crimes, as opposed to having been done with a motive of profit or revenge.
Thus you start out by saying that punishment should not be based on motive, which was never proposed, and end by agreeing that punishment can be extended (or reduced) because of motive, which was the actual question at issue.
Huh?
Austin- I admit that I could have been explaining my position badly, but I think you may also be reading things into my position that simply are not there. I will attempt once more to explain.
When it comes to punishment for a crime, motive is not relevant. Motive is relevant in order to determine cause against a suspect, but not in how they are punished if convicted. Punishment is determined by the degree to which the perpetrator was cognizant of what they were doing. Thus, to continue with the example of murder, punishment is determined by whether the convicted-
1) planned the act out in advanced (first degree murder)
2) did it in the heat of the moment (voluntary manslaughter)
3) in the course of commiting another violent crime (felony first degree murder)
4) through negligence or by accident (involuntary manslaughter or possibly second degree murder, depending on the circumstances)
-not by the motive behind the act. In the very general sense, motive behind a crime does not enter into the equation when settling on punishment. If there are other mitigating factors I imagine motive could apply in some fairly rare situations, but in general motive has little to do with punishment.
However, my support for increase in punishment when it can be shown that certain groups are consistently targeted for certain crimes over a long period of time has nothing to do with motive as a mitigating factor. Instead it has to do with the fact that such incidences do greater harm to society as a whole along with the smaller group. For example, law enforcement resources are always limited and sometimes to a less than even adequate scale. When these resources have to be consistently diverted to provide added protection to a single group it exposes the whole to danger. Increasing the punishment for crimes against that particular group of society could act as a deterrent against the crimes being commited, thus potentially freeing the limited resources to provide equal protection to the whole to a better degree.
So basically, whether the crimes are committed due to religious or political ideology or because that group simply presents easier targets doesn’t really matter to me. What does is that, while there is obvious damage inflicted on the targeted group in question, there is also demonstrable damage done to society as a whole as a result. The example above is just pertaining to its effect on law enforcment resources. The damage done to society as a whole is even clearer when one begins to consider the court systems, economics and so forth.
That is incorrect. Motive establishes intent and intent is key to both establishing what sort of crime as well as what sort of punishment is appropriate. Use of homicide as your example is especially problematic since it is with homicide that motive plays a larger than average role.
I’ve already stated this and you don’t seem to believe me, so here are some outside sources saying the same thing again. In some cases, I’m adding emphasis.
Past or Future Crime, by A. Von Hirsch:
Sentencing and Criminal Justice, by Andrew Ashworth:
Crime and Culpability: A Theory of Criminal Law:
Terrorism, Crime, and Public Policy, by Brian Forst:
United States Supreme Court, Wisconsin V. Mitchell:
United States Seventh Circuit Court Of Appeals, Kapadia V. Tally:
Insofar as your position is based on the premise that motive is irrelevant to establishing either that a crime was committed, the level of a person’s culpability for that crime, or the sort of sentence a person receives after being found guilty, your position is also incorrect.
If you’d like to argue that motive should be irrelevant, you’re welcome to try, but you will be arguing against the entire weight of western criminal and common law. What you cannot do is premise an argument on the idea that motive is currently irrelevant.
Yeah Austin- that has been my position so far in a nutshell. You have it to a tea. Please, if you wish to argue against my position, then do so and I will be more than happy to continue this discussion. I would, however, prefer it if you refrained from ascribing me my position.
Which: that motive is irrelevant or should be irrelevant? Or both?
If “is,” I’ve already done so — I think I have established beyond a reasonable doubt that quoted description of contemporary law is wrong. All arguments based on that description as a premise must be reformulated or abandoned.
If “should be,” I don’t think I need to — you’re proposing a fundamental change in the nature of criminal and common law, specifically with an eye towards disallowing a type of exacerbating factor which is consistent with currently accepted exacerbating factors. If it is your position that a fundamental change needs to be made in the law, the first argument should be yours I think. I have yet to see any obvious, unambiguous flaws in the defenses or explanations I’ve read for taking motives into account.
I don’t believe that I have ascribed to you your position. I have, however, ascribed a variety of potential positions because you have failed to be clear in what, exactly, your position is. Even now, when faced with two options, you just say “that” is your position. That? It’s like I asked whether you’d like beer or wine and you answered “yes” when you should say “beer,” “wine,” or “both.”
Allow me to illustrate:
You say that punishment should “generally” be based on the crime, not on motives, but this implies that motives can play a role – say, as an exacerbating factor which lengthens sentences or a mitigating factor which shortens sentences. This is what we have now: punishment is based primarily on the crime, but adjusted based on other factors (including, but not limited to, motive).
But the implication that you accept this wouldn’t be consistent with saying that using motive to increase a penalty is punishing the “thought” behind the motives. If punishing thought is so wrong that it can’t be allowed, then increasing punishment because of motive can’t be allowed; if that can’t be allowed, then you can’t be implying in the above quote that motive may play some role — but I can’t figure out how to read the quote without that implication being there.
But then you say “When it comes to punishment for a crime, motive is not relevant.” That’s not a “should” statement, that’s a strong statement about what is or is not currently the case. As a description of current law, it’s unambiguously false. Leaving that aside, though, you clearly think that’s an appropriate state of affairs, so I can extract an implied “should” from it, but then we’re back to a contradiction with statements where you leave open some possibility of taking motive into account in sentencing.
I don’t think it should be surprising that, in light of this, I can’t be entirely sure what you’re position really is. So, I’ve had to offer at least partial arguments against a couple of different possible positions in the hopes that I might hit the mark somewhere. My expectation is that where I raise an argument against a position you don’t hold, you’ll point out that you didn’t mean to convey any such belief, and where I raise an argument against a position that you do hold (or which is at least close to what you hold), then you’ll rebut and it will become more clear what you’re thinking.
But you never did any of that. So it’s precisely because I don’t want to ascribe your position to you that I have to say in all honesty that I’m still not sure what your position is. I could guess, but I don’t do that, despite what you complain. If you are sure that I have ascribed to you some particular position that you don’t hold, then I’d appreciate it if you could point to where I have done so. I’ve gone to great lengths to be clear as to what my position is and to provide quotes (from you and others) to support/explain what I’m saying. Could you do something similar?
I said that motive was irrelevant in regards to punishment. You even took a quote from my post where I say that but you responded as if I made the claim that motive is totally irrelevant across the board. That was not my position and I had made that clear. If you still did not understand what my position was, even after quoting it, you should have asked for further clarification or just ended the conversation instead of ascribing “potential” positions.
However, I do hold positions tentatively. When I made my earlier statements it was my position that motive played no role in adjudicating punishment. However, I was wrong. In application motive is used to establish intent which is used to determine penalty. Although how much of a role motive plays in that regard is still debated among legal experts that appears to be the current consensus.
Still, this does not detract from my original position that hate crime laws get uncomfortably close to thought crime in my opinion. If motive and intent is used to decide punishment for a crime, but we set aside certain motives that will add to the severity of punishment, are we not sending out the signal to those that hold it that we will punish them extra for holding that belief? What I’m asking is: what is the intended purpose behind hate crime laws?
Pointing out how punishment plays a role from the beginning (determining if a crime has even been committed) to the end (determining the length of a sentence) does not entail ascribing to you the view that punishment never plays any role. It is, instead, a way of showing how questions about motive are woven throughout the criminal justice process rather than removed suddenly at the end.
This is important not just to establish some context, but also because if you wanted to seriously argue that motive shouldn’t play a role in sentencing, then you’d have to explain why it should play a role anywhere else in the process. I honestly don’t see how “add 5 years to the sentence because he had motive X rather than motive Y” is any more of a problem or any closer to “thought crime” than “a crime wasn’t committed because you had motive X; it you had had motive Y, it would have been a felony.”
If anything, the latter looks like it should be closer to thought crime because the very existence of a crime is dependent entirely upon the existence of particular thoughts; the former merely extends the punishment for a crime.
I only began to “ascribe” a variety of possible positions in comment #15, after your contradictions became unavoidable. And I clearly asked you what your position was, didn’t I? It is reasonable to do both together: ask what your position is and raise some basic objections to the two likely candidates to start the ball rolling.
But you have yet to explain how it is any more of a problem with hate crime laws than it is with all the other ways in which motives are taken into account. Why aren’t enhanced sentences for terrorism “uncomfortably close to thought crime”? Or, if you think they are all equally close to “thought crime,” you have yet to explain how and why.
I’ll point out that you have not, for example, said what you think a “thought crime” is — you just use it as a negative descriptor without delineating what its boundaries are supposed to be and why it’s a problem. You need to be able to explain what a thought crime is, what an “ideal” example of a “real” thought crime prosecution would look like, and how certain sentencing enhancements come “uncomfortably close” to this.
No, because merely having those motives without committing the corresponding crimes is never punished. Wanting you dead for your insurance money is not a crime and cannot be punished, but acting on that is crime which is punished — and punished more harshly than if I wanted you dead because you asked me to end the pain you’re experiencing due to a terminal illness. Punishing me more because my motive was greed rather than compassion doesn’t mean that the state is punishing greed, does it? Greed is no less “thought” than hate, and if you don’t see a thought crime in enhanced sentences for greed-based murder, then I can’t comprehend your objections to hate crimes provisions.
In my opinion, it’s simply not a “thought crime” unless and until particular thoughts are crimes, punishable by the state simply because they exist and regardless of any external acts.
Basically the same as all the other laws which provide for longer sentences in the context of certain motives, and analogous to the laws which provide for shorter sentences in the context of other motives. Attacking a black person with the intent to coerce or intimidate black people generally is worse than mugging a random black person just because they happened to be the next person to come along — it’s worse to the community, worse for social harmony, worse politically, worse culturally, etc. On the other hand, killing you because you want me to end your suffering isn’t so bad as me killing you because I’m tired that you let your dog run free to crap in my yard.